By Do Idada Ikponmwen
Indeed, Article 4 Section 4 of the U.SÂ constitution provides that â€œthe United States shall guarantee to every state in the Union a Republican form of government, and shall protect each of them against invasion; and on application of the legislature or of the executive (when the legislature cannot be convened) against domestic violenceâ€ Thus, the power to engage the military flows from the Congress, just as the power to declare war, grant letters of marque…, to raise and support armies, to provide and maintain a navy and to make rules for the government and regulation of the land and naval forces vests in the Congress.
Besides these constitutional provisions, which emphasize the power of the legislature in the establishment, sustenance and useÂ of the military, there is this age-long Posse Comitatus Act (PCA) of 1878 which has remained largely the law on this subject matter in America .
The PCA provides â€œWhoever, except in cases and under circumstances expressly authorized by the constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.â€
The PCA placed a stop on the use of the military as part of the force of able bodied men available to Marshals and local Sheriffs inherited from England. Not withstanding some current isolated arguments as to the need for amendment to PCA, the fact remains that Americans, like many Nigerians, still widely believe that the military should be insulated from routine law enforcement duties. Indeed, even those who argue for amendment to the PCA still maintain the stand that the need to avoid abuse is central to the PCA.
It must be submitted therefore that the need for avoidance of abuse is even more important in our nascent democracy than the American society.Â Even more important is the fact that whereas the American PCA is only a law of the Congress, the prescription for cautious use of the military in civil law enforcement in Nigeria is embedded in our constitution.
The issue before this nation therefore is one of complying with the constitution to enhance good governance, the alternative to which is great potential for abuse of power and danger to our democracy.
In view of the specific provisions of our constitution on this subject matter, it is evident that the use of the military to address civil disturbances, and the powers exercisable by the commander- in-chief of the armed forces are matters the National Assembly have inevitable and overwhelming role.
Everyone is expected to play according to the rule of the game; it is no issue for sentiments or emotions and so the question of depending on maturity as substitute for proper discharge of duty to make laws or to give or withhold approval for troopsâ€™ intervention as required by the constitution does not arise.
It is in this vein that the write up in Law and Human Rights column at page 43 of your Friday, June 19th 2009 edition captioned Niger Delta Crisis: President need not inform N/A on deployment of military does not catch my fancy and I think that same is capable of misrepresenting the true position of our constitution and for that reason needs to be corrected.