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Towards credible election: constitutionality of dragging Army into electoral process (Yusuf vs Obasanjo)

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By Afe Babalola

The 2019 presidential and national assembly elections are a few days away and aside from the ongoing campaign of the candidates, one aspect of the impending elections which continues to attract attention is what role the military will play on the day of the election. As it was during some past elections, there are concerns not only about the intention of government to deploy the military on election date but also what that will portend for the smooth conduct of the elections. While those in support of such moves argue that security concerns permit or even make the deployment of the military an absolute necessity, others opposed to it refer to past incidents where the military were utilised by unscrupulous politicians to skew the electoral process in their favour through means including intimidation of voters and members of the opposition.

Indeed at the advent of the current administration, one of its very first decisions was the retirement of certain officers alleged to have participated in or facilitated electoral fraud in one of the gubernatorial elections held in a south west state. In another election held not too long ago, there were reports that soldiers, very early on the day of the election either arrested or restricted the movement of prominent leaders of a particular political party without any attempt to effect the same measures to members of another political party. This was seen as selective enforcement of the law in a bid to aid one party over the other. Indeed in many Petitions filed in years past including some filed to challenge the validity of the election of Chief Olusegun Obasanjo in 2003, the deployment of military personnel was cited as a reason for the voter apathy in many states.

Voting in progress at Oza Primary School Igbesawnma Benin city. Photo: Citizen Wolbum


The duty to maintain law and order is that of the Police

Generally, elections are an internal affair of the country involved. The threats to peace and order that could possibly arise from the conduct of an election are equally internal. The direct and obvious implication of this is that the force to prevent or suppress such threats should be the force equipped to combat internal threats to law and order, peace and security. This force is the Nigerian Police. The Police Force has the duty to secure the lives and property of Nigerians and they do so in concert with other internal forces like the Department of State Security (commonly referred to as S.S.S) and the National Civil Defence Corps.

Inside swing states, others, six days to polls


The armed forces are a creation of the Constitution. Section 217(1) of the Constitution so reads:

“217.(1) There shall be an armed forces for the federation which shall consist of an Army, an Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.”

The purposes that the armed forces can be directed toward are listed in section 217 (2) of the Constitution to wit:

“(2) The Federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of-

(a) defending Nigeria from external aggression;

(b) maintaining its territorial integrity and securing its borders from violation on land, sea or air;

(c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly; and

(d) performing such other functions as may be prescribed by an Act of the National Assembly”

Many who support the deployment of the military on election duty usually rely on the provisions of Section 217(2)(c) reproduced above by which the military can be called upon to suppress insurrection or aid civil authorities to restore order when called upon by the President. I however fail to see how deploying the military on days of election can be equated to suppression of insurrection or restoration of order! As the words used in the Constitution are clear, there has to be an insurrection or a break down of law and order before the military can be called upon. Thus the military cannot even be called upon or deployed in anticipation of a breakdown of law and order. Unfortunately owing to this misconception, it appears that the military itself is gradually confusing its role with that of every day law enforcement agencies and no incident brings this to the fore more than the reaction of the army to report of clashes between soldiers participating in “Operation Python Dance” and some alleged members of the Indigenous People of Biafra (IPOB). It was alleged that the soldiers had shot at three members of the group and to refute the allegation, the military issued a statement which reads partly as follows:

“The attention of the 82 Division Nigerian Army has been drawn to an online news publication gathering attention in social media …alleging that some soldiers of 144 Battalion on routine patrol in Aba general area of Abia State have shot three persons and one of them died instantly.

“The Division wishes to state that although there was an incident involving 144 Battalion patrol team with some traders at Asa – Nnentu Spare Parts’ Market, in Ugwunagbo Local Government Area of Abia State, at no time was anybody shot at, wounded or killed as lopsidedly and therefore wrongly reported by the medium.

“However, six members of proscribed Indidenous People of Biafra, IPOB, were arrested and handed over to the Nigerian Police Abia State Command.

“For record purposes, this was what happened; – at about 1200 hours on Wednesday, the 6th of February, 2019. Troops of the Battalion on exercise EGWU EKE 111 were alerted on the massive presence of some youths allegedly disrupting commercial activities and pasting posters with the inscription that ‘there will be no elections in Abia State and entire Biafra land, Support Biafran Referendum, Vote for Biafra, Vote for total freedom from slavery,’ among others which were unusually widely pasted on private shops around Aloaji general area.

“Consequently, as professionally responsive soldiers, the team moved to the area to ensure peace, security and (that) no person was to be harassed or molested by miscreants or violent secessionist agitators.”

I have highlighted the above to show that the military is fast losing its very identity and according to itself duties and responsibilities which do not belong to it. From the narrative of the army stated above, the team of “professionally responsive” soldiers moved to area to ensure “peace, security…” without any directive or request for them to do so. They could only have done so in aide of civil authorities who they should have alerted to the likely or ongoing breakdown of law and order and not assume for themselves the role of restoring law and order.


The usurpation by the military of police duties


This point is very important as if care is not taken, the usurpation by the military of police duties either on election day or not will have dire consequences for both institutions. While the military will begin to lose effectiveness in its constitutional role of safeguarding the country’s territorial integrity, the police and other civil law enforcement agencies will lose their capabilities to safe guard law and order and the entire country will suffer for it. In Yusuf v. Obasanjo (2005) 18 NWLR (Pt. 956) p. 96 at 174 the Court of Appeal stated thus:

“It is up to the police to protect our nascent democracy and not the military otherwise, the democracy might be wittingly or unwittingly militarized. This is not what the citizenry bargained for after wrestling power from the military in 1999. Conscious steps or steps should be taken to civilianize the polity and thereby ensure survival and sustenance of democracy.”

These words ring true now more than ever. I therefore advise the government to read with extreme caution on the proposed deployment of the military on election day. If they are to be deployed at all, it should be as a stand by force to be called upon to aide civil authorities should the need arise. Soldiers have no role to play at election polling unit.

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