Militarisation Of Elections Is Unconstitutional

 

Bashorun Akin Osuntokun’s article on “Militarisation and other fallacies” published in his weekly column in Thisday newspaper of Friday, July 11, 2014 was a misleading apologia for the militarisation of the recent governorship election in Ekiti State. In commending the soldiers for displaying professionalism the Bashorun was curiously silent on the infringement of the fundamental right of Governor Rotimi Amaechi’s freedom of movement which occurred at Iju-Itagbolu in Ondo State contrary to section 41 of the Constitution. The governor who was billed to attend a political rally at Ado Ekiti on June 19, 2014 was crudely turned back by the soldiers who claimed that they were acting on “orders from above”.

Mr. Osuntokun was equally silent on the illegal curfew imposed on Ekiti state by the army. Or was any curfew declared by the relevant authorities that was not announced? A client, Mr.Bayo Fajimi, who was going home from Akure, Ondo State ( his place of residence) was disenfranchised as he was prevented by the soldiers from entering Ekiti state at 6.30 pm on June 20 because of the illegal curfew! Is the Bashorun not aware that the soldiers subjected every hotel at Ado Ekiti to a search without warrant between 10pm and 2am for the sole purpose of ejecting all those who could not give “satisfactory” explanation of their business in Ekiti State? Yet while all “illegal aliens” like Governor Amaechi and others suspected to be All Progressives Congress members were harassed and expelled from the state by the army some non-indigenes who are chiefs of the Peoples Democratic Party including two serving ministers and an influential thug from Anambra State, were allowed to “monitor” the election. Indeed, they were fully protected by the armed gendarmes.

Even though the Bashorun admitted that he was “struck and inconvenienced by the rigour and saturation of the security blanket” on account of repeated security check points he dismissed the complaints of the militarisation of the election. As far as he is concerned the United States embassy had endorsed the militarisation by issuing a statement to the effect that,”The security forces collaborated effectively and provided a safe and secure environment free of major incidents”. It is interesting to note that the Americans who issued the statement do not involve armed troops in the management of their own elections!

Bashorun Osuntokun claimed that the soldiers displayed civility as they were “neither intrusive nor threatening”. However, those who were drafted to my community at Ilawe Ekiti constituted themselves into an army of occupation. Apart from assaulting individuals without any justification they beat up a policeman on June 20, which led to a violent clash between the police and the army. As a result of the pandemonium which ensued, the main market in the town was abruptly closed down. I personally witnessed the brutality exhibited by the rampaging troops. I have other reports of human rights abuses committed in other parts of Ekiti State by those armed soldiers who usurped police duties of maintaining law and order before and after the election.

From what I witnessed in the state, there was no role that the soldiers played in the election that the mobile section of the Nigeria Police Force could not have played even better. Or when has the manning of roadblocks become a military affair? It may interest Mr. Osuntokun to know that the arrest of the three criminal elements who were caught with a lorry load of ballot papers before the election were arrested by the police. With the figure of 36,790 armed soldiers, police, state security service and civil defence personnel deployed for the Ekiti election not less that one million armed troops will be required for the 2015 election. Since the Federal Government cannot possibly mobilise that number of troops, the United Nations may be requested to send a Peace Keeping Force for the militarisation of the entire country during the general election.

However, I wish to submit that under the current constitutional dispensation the President and Commander-in-Chief of the armed forces lacks the power to involve soldiers in maintaining law and order during elections. Even in the North-East region, a state of emergency had to be declared by the President to justify the deployment of members of the armed forces as part of the extraordinary measures he was required to take to restore law and order pursuant to section 305 of the Constitution. Even then, the President had to seek and obtain the approval of the National Assembly for the said deployment for a specific period of time.

No doubt, former President Olusegun Obasanjo engaged in the illegal deployment of the army for the manipulation of the 2003 general elections. It is on record that over 200 people were killed by the security forces during the election. However, the courts have consistently enjoined the Federal Government to desist from involving the armed forces in the conduct of elections. Thus, in the leading judgment of the Court of Appeal in Yussuf v Obasanjo (2005) 18 N.W.L.R.(Pt 956) 96 Salami JCA ( as he the was) held that “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 in wrestling power from the military in 1999. Conscious step or steps should be taken to civilianize the polity to ensure the survival and sustenance of democracy”.

That court reiterated its views in the case of Buhari v Obasanjo (2005) 1 WRN 1 at 200 when Abdullah PCA observed that “in spite of the non-tolerant nature and behavior of our political class in this country, we should by all means try to keep armed personnel of whatever status or nature from being part and parcel of our election process. The civilian authorities should be left to conduct and carry out fully the electoral processes at all levels”. In upholding the judgment of the lower court, the Supreme Court stated in Buhari v Obasanjo (2005) 50 WRN 1 at 313 that the State is obligated to ensure that “citizens who are sovereign can exercise their franchise freely, unmolested and undisturbed”.

Notwithstanding the clear pronouncements of the courts on the illegality of involving the armed forces in the conduct of elections, President Obasanjo decided to deploy several battalions of soldiers to many states for the 2007 “do-or- die” general election. His successor, the late President Umaru Yar’adua continued the illegal policy as he deployed soldiers for the rerun governorship election in Ekiti State in 2009. A week before the deployment, Mr. Dimeji Bankole, the then Speaker of the House of Representatives had during a political rally at Igede Ekiti on April 2, 2009, sang ” A o lo soja, awa to lo Mopol lojosi, a o lo soja” ( we shall use soldiers this time around, we who used mobile police the other time, we shall use soldiers this time around). In the same vein, a month preceding the governorship election of June 21, 2014 in Ekiti State, Vice President Namadi Sambo had declared that the democratic exercise was going to be fought like a civil war by the ruling party.

It is submitted that the deployment of the armed forces for the maintenance of law and order during elections cannot be legally justified in view of section 215(3) of the Constitution which has vested the Police with the exclusive power to maintain and secure public safety and public order in the country. However, the President is empowered by virtue of section 217(2) of the Constitution to deploy the armed forces for the “suppression of insurrection and acting in aid of civil authorities to restore law order”. This, in effect, means that before the armed forces may be involved in the maintenance of law and order there must have been insurrection or civil disturbances which cannot be contained by the Police. The Constitution never envisaged that the armed forces will usurp the powers of the Police with respect to the “preservation of law and order” in any part of the country.

I am not unaware that President Jonathan has involved the armed forces in ensuring internal security in at least 28 out of the 36 states of the federation. The anomalous situation has now been extended to the maintenance of law and order during elections. It is high time the aberration was stopped. Unlike what obtained under the defunct military dictatorship in Nigeria the armed forces are no longer permitted to perform police duties in any manner whatsoever.

Thus, by the combined effect of sections 215 and 217 of the Constitution, it is abundantly clear that the power of the President to deploy the armed forces for internal security is limited to (a) the suppression of insurrection including insurgency and (b) aiding the police to restore order when it has broken down. To that extent, it is illegal and ultra vires on the part of the President to deploy the armed forces to maintain law and order during elections. In the circumstance, the police should be strengthened to discharge the duty of ensuring internal security in the country while the armed forces are restricted to the defense of the nation’s territorial integrity.

By Femi Falana, a Senior Advocate of Nigeria.

This article was first published in The Punch on Monday, July 21, 2014.

Ekiti State Government Press Release