The civilian authorities should be left to conduct and fully carry out the electoral processes at all levels. Thus, the state is obligated to ensure that citizens who are sovereign, can exercise their franchise freely, un-molested and un-disturbed”.
The above pronouncements of the Court of Appeal deal with, or rather focus largely on, the issue of the legality or propriety of the deployment of the armed forces for election purposes, and do not touch on the other issue raised by Nsofor JCA, namely, whether, assuming the deployment to be legal and authorised by the Constitution, “the election could have been conducted fairly and freely in this state of fear and insecurity.” His answer to this question is “definitely not.” This aspect of the issue must be kept distinct from the issue as to whether the President is authorised by the Constitution to deploy the military for election purposes; in other words, even if he has the constitutional power to so deploy the military, is the election not still invalidated by the presence of armed uniformed soldiers, with the authority of the President, in the polling units, collation centres and other areas where election activities took place, with the intimidating atmosphere of fear and feeling of insecurity thereby created?
If the President is authorised by the Constitution to call out the military for election purposes, then, a conflict would have arisen between the provisions of the Constitution authorising him to do so and the provisions conferring on the people the right to exercise the franchise in a free, fair and credible election conducted by an independent, neutral and impartial electoral body as an electoral umpire – see sections 14(1) & (2) (c), 39, 40, 65, 71, 76, 77, 78, 132, 133, 134, 153, Third Schedule, Part 1, E. The provisions in the above-mentioned sections of the Constitution are the basis and foundation of the entire governmental system of the country; they transcend and take precedence over the provisions of section 217 relating to the power of the President with respect to the operational use of the armed forces. It follows therefore that the election is still invalidated by the intimidating presence of armed uniformed military men, even if the President has the power under the Constitution to call them out.
The decision of the Court of Appeal in All Progressive Congress v. Peoples Democratic Party, supra, went on appeal to the Supreme Court,  15 NWLR (Part 1481) p. 1, see especially page 62. The apex Court declined to make a pronouncement on the petitioner’s contention that the deployment of soldiers to perform election duties was unconstitutional, on the rather technical ground that “the issue of deployment of soldiers and whether or not such deployment is lawful and, if unlawful, whether it nullified the election, was not a matter properly before the tribunal or court below as the person who made the deployment was not named” at p. 63. Furthermore, that the Chief of Defence Staff who was named as 4th respondent was not, under the relevant provisions of the Electoral Act 2010, among the class of persons designated as parties in an election petition and since no relief was claimed against him, his joinder as a party was improper. As the petitioner’s contention was not raised as an issue, the pronouncement on it by the Court of Appeal, which was relied on by the petitioner, is only an obiter, not the ratio of the decision.
The grounds of the Supreme Court ruling above do not apply in the present case. The President is a party in the case. He is the person who has the power to call out the military acting in his capacity either as Commander-in-Chief (see sections 120(2) and 218(1) of the Constitution) and as the person specifically empowered by section 217(2)(c) to call out the military to aid the civil authorities to restore order in order to suppress insurrection. Anyone else calling out the military does so by his authority and as his agent.
The deployment of soldiers, being unconstitutional, invalidates the election for the additional reason that our law does not, as a fundamental principle, allow the perpetrator of an unlawful act to benefit from it. “It is settled law,” said Tabai JCA, delivering the judgment of the Court of Appeal in Buhari & Anor v. Obasanjo & Ors, ibid at page 354 – 355, that “a party should not be allowed to derive benefits from his own wrongs, lest the law becomes an instrument of injustice.” President Buhari, as the person who called out the soldiers for election duties in violation of the Constitution, should not be allowed to benefit from his unlawful act to secure his re-election for a second term as President.
Finally, the ruling of the Supreme Court in All Progressive Congress v. Peoples Democratic Party (PDP) & Ors, supra, does not amount to the over-ruling of the Court of Appeal unequivocal pronouncement in the case; accordingly the latter, although its authority is diminished, remains the highest judicial pronouncement on the issue, and should command great weight and respect on the part of all of us, including the Federal Government of President Buhari.
In any case, as earlier stated, even assuming President Buhari to have the constitutional power to deploy the military for election purposes, a conflict would have arisen between the provision of the Constitution conferring such power on him, and the provisions of the same Constitution conferring on the people the right to exercise the franchise in a free, fair and credible election unhindered by the fear and feeling of insecurity created by the intimidating presence of armed uniformed military men; in such a conflict, the latter provisions, being the basis and foundation of the entire governmental system, will prevail.
The historic decision of the U.S. Supreme Court in the 1951 case of Youngstown Sheet and Tube Co v. Sawyer, 343 US 579 lends support to the view that the armed forces cannot be used to interfere in the private life and civil affairs of the citizenry. In response to a strike call in the steel industry during an emergency, declared by the President during a war in Korea in which the U.S. was involved, the President, without express statutory authorisation, but solely on his own independent authority under the US Constitution to preserve the security and safety of the nation, ordered the steel factories to be seized and operated by government agents in order to avert a national catastrophe which might follow from a stoppage of steel production owing to the strike. But he immediately sent a message to Congress informing it of his action, and inviting it to approve or revoke his action as it thought fit.
In an action by the owners of the factories challenging the constitutionality of the seizure and praying that they be returned to them, the US Supreme Court held that, without express statutory authorisation, the President had no independent power under the Constitution to take possession of the steel mills and operate them by his agents, on the ground that seizure of private property even during a declared emergency requires legislative authorisation by Congress, to which alone the Constitution has entrusted the law-making power in both good and bad times.
After stating that “emergency did not create power”, and that “it merely marked an occasion when power granted by law should be exercised”, the Court observed as follows:
“The fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than Congress, had the constitutional authority to act…..The President can act more quickly than Congress. The President with the armed forces at his disposal can move with force as well as with speed….Legislative power, by contrast, is slower to exercise. There must be delays while the ponderous machinery of committees, hearings, and debates is put into motion. That takes time; and while Congress slowly moves into action, the emergency may take its toll in wages, consumer goods, war production, the standard of living of the people, and perhaps even lives. Legislative action may indeed often be cumbersome, time-consuming, and apparently inefficient. But the doctrine of the separation of powers was adopted by the Constitution of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy” – quoting Justice Brandeis in Myers v. United States 272 US 52 (1926).
The President had tried desperately to derive legal authority for his action from the provision in the Constitution designating him as commander-in-chief of the armed forces, but that too was emphatically rejected by the court. “We cannot”, it said, “with faithfulness to our constitutional system hold that the commander-in-chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labour dispute from stopping production”
at p. 587 – per Justice Black delivering the opinion of the court. “The Constitution”, said Justice Jackson in a separate concurring judgment, “did not contemplate that the title, Commander-in-Chief of the Army and Navy, will constitute him also commander-in-chief of the country, its industries and its inhabitants” at pp. 642- 4.
President Buhari should be made to understand and accept that the title Commander-in-Chief of the Armed Forces of Nigeria does not make him the commander-in-chief of our private lives and affairs, our civil society and our elections.
The widespread incidents of violence and the deployment of armed uniformed military men at the polling units, collation centres and other places where election activities were taking place prompt the question whether Nigeria is ripe for democracy
The renowned British jurist, Professor Lord James Bryce in his Modern Democracies vol. 2 (1920), pages 545 – 568 maintains that democracy and free government were not suitable nor meant for, and should not be embarked upon by, “backward peoples” among whom he classified the rest of humankind apart from Britain, Europe, North America, Australia, New Zealand and Japan. Despotism, he said, is what is good for them, and the democratic “experiments that are now being tried might have been better left untried. And if at all “the work of fitting” such peoples for self-government is to be attempted, it should be done by “slow degrees.” It did not occur to him that a world, half free and half unfree, is hardly realistic nor even possible in our present conditions of mass education, of enormous intellectual development and of fast communications which have brought it closer and closer together in feelings, aspirations and outlook; and that the capacity for self government, which took the advanced countries centuries to acquire, may today, given the free flow of ideas and under the stimulus of influences from the advanced peoples, be acquired in a comparatively shorter time.
His countryman, the great political philosopher, John Stuart Mill, author of the famous Essay titled On Liberty (1859), reprinted in Unitarianism, Liberty and Representative Government (1910) Everyman’s Library pp. 78 – 79, 191 – 192 is guilty of the same error, although he appears less sweeping in terms of types of peoples for whom democracy is not meant. According to him, liberty is not meant for backward societies, or for a people of violent disposition, or a people lacking in public spiritedness, or in a sense of civic responsibility. “Despotism,” he asserts, “is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate to find one.” He concedes, happily, that “all nations with whom we need here concern ourselves have “long since reached” the state of maturity to embark on the experimentation with liberty and democracy, and can over time learn their ways and habits. (Akbar was the commander of the Arab forces whose bravery in war, as described by Edward Gibbon in his Decline and Fall of the Roman Empire, was a decisive factor in the Arab conquest of North Africa in the seventh century A.D. Charlemagne (768-814 A.D.) was the masterful Germanic ruler who, after the fall of the Roman Empire in the West in 455 A.D. tried to re-create it with himself as successor emperor.)
I disagree with the two acclaimed thinkers. Democracy, like other forms of government, is an art which has to be learnt and developed, and the learning involves a process of experimentation over time, of trial and error. It is wrong therefore to think that the experiment should not begin unless and until all the factors necessary for its success are present. These factors can be created or developed in the course of the experimentation. While certainly it functions better under conditions of modernity and development, democracy is not a form of government for civilised or developed societies only. In a society of men, whatever their state of development, and whatever their national character may be, whether self-restrained and public-spirited or not, there is no other viable alternative form of government. We are not of course talking about a nation of savages or barbarians.
The position taken here is that liberty and democracy, if they are to take firm root and thrive (not if they are to be embarked upon at all) must have a foundation in certain shared sentiments that bind a society to respect human rights and to behave democratically, common sentiments expressed in habits, traditions, attitudes, a moral sense and a transcendental spirit. “The ultimate foundation of a free society”, Justice Felix Frankfurther of the Supreme Court, has remarked, ‘is the binding tie of cohesive sentiment”: Minersville School District v. Gobitis 310 U.S. 506 (1940).
The problem with us Nigerians is that we do not seem to be learning.