Monday, March 23, 2015 1:36 pm
The presiding Judge, Justice Ibrahim Buba, in his ruling, declared that it is unconstitutional to deploy military for the supervision of election without the approval of the National Assembly.
The ruling of the court, was sequel to a suit filed by Femi Gbajabiamila, a member of the House of Representatives representing Surulere Federal Constituency 2 under the platform of All Progressives Congress, APC against President Goodluck Jonathan, Chief of Defence Staff, Chief Of Army Staff, Chief of Air Staff, Chief of Naval Staff and the Attorney General of the Federation.
In his argument, Seni Adio, lawyer to the plaintiff, argued that there was an allegation and evidence that the military inhibited free movement, free access and intimidation of voters in Osun, Ekiti, and Anambra where the military were deployed during the governorship elections in those states.
In addition, Adio argued further that it is not ideal to deploy the military to supervise election in a democratic setting. Consequently, considering what happened in Osun and Ekiti in 2014 and Anambra in November, 2013, he urged the court to restrain the defendants from using the military in the coming elections.
Mr. Dele Adeshina, SAN, opposed the application on the ground that the President being the Commander-In-Chief of the Armed Forces, is empowered under Armed Forces Act to deploy the military to maintain law and order.
In his response, Adio said the Armed Forces Act is subordinate to the Constitution of the Federal Republic of Nigeria.
Monday’s ruling tallies with that of the Federal High Court in Sokoto, Northwest Nigeria, which had on Thursday, 29 January, 2015, outlawed the use of the military for election duty across Nigeria.
The court ruled on the lingering controversy and declared the use of soldiers as unconstitutional.
Justice Mohammed Rilwan Aikawa ruled that other than for the purposes of protecting the nation’s territorial integrity, no constitutional provision allows for the deployment of the military for elections.
The suit challenging the deployment of military for election duties was instituted by the Deputy Speaker of the House of Assembly, Bello Goronyo, representing Goronyo Constituency in Sokoto State.
Justice Rilwan added that for the Federal Government to do so, it must have taken recourse to the National Assembly, which would enact such law.
The presidential candidate of the opposition All Progressives Congress, APC, General Muhammadu Buhari had early in January warned President Goodluck Jonathan against further deployment of soldiers to cities and towns during elections.
He said that the soldiers were meant to defend the territorial integrity of the country and not for policing elections.
Whereas few military men have been deployed to tackle insurgents in the north east, he said a large number were deployed to monitor elections.
Chairman of the Independent National Electoral Commission, Professor Attahiru Jega, in press interviews have also said the military are excluded from policing elections in Nigeria and that even the police are expected to keep a 300 metre distance from polling centres.
In its February 16 letter, APC drew Jonathan’s and the INEC’s attention to the January 29 judgment of Justice R.M. Aikawa of the Federal High Court, Sokoto and the February 16 decision of the Court of Appeal, Abuja, which outlawed the President’s unilateral deployment of soldiers for the June 21, 2014 Ekiti State governorship election.
It urged them to obey both decisions.
In the letter signed by the Director, Legal, APC Presidential Campaign Council, Chukwuma-Machukwu Ume (SAN), the party argued that by virtue of both decisions, it had become illegal for the President and INEC to involve members of the armed forces in electoral matters without the National Assembly’s permission.
Justice Aikawa restrained the President and INEC “from engaging the service of the Nigerian Armed Forces in the security supervision of elections in any manner whatsoever in any part of Nigeria, without an Act of the National Assembly.”
Justice Abdul Aboki , in his lead judgment in the Ekiti State Governorship Election appeal delivered on February 16, held that “even the President of Nigeria has no powers to call on the Nigerian Armed Forces and to unleash them on peaceful citizens, who are exercising their franchise to elect their leaders.
“Whoever unleashed soldiers on Ekiti State disturbed the peace of the election on June 21, 2014; acted in flagrant breach of the Constitution and flouted the provisions of the Electoral Act, which required an enabling environment by civil authorities in the conduct of elections.”
Section 215 of the 1999 Constitution makes the maintenance of internal security, including law and order during elections, the exclusive responsibility of the police.
According to Lagos lawyer Mr Femi Falana (SAN), it is erroneous to say that only the military could guarantee security during the elections.
To him, once INEC has discharged its constitutional duty of fixing election dates, the onus is on the police to provide security and maintain law and order.
Falana recalled that the courts have consistently enjoined the Federal Government to desist from involving the armed forces in elections.
He cited the leading judgment of the Court of Appeal in Yussuf v Obasanjo (2005) 18 NWLR (PT 956) 96, which the court held: “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.”
The court, Falana said, reiterated its views in the case of Buhari v Obasanjo (2005) 1 WRN 1 at 200 when it stated: “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.”
Upholding the judgment, 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.”
Falana said going by the verdicts, Prof Jega should ensure that INEC is not further blackmailed by the military hierarchy.
“On their own part, the National Security Adviser (NSA) and the Service Chiefs should desist from usurping the constitutional responsibility of the INEC and the Nigeria Police Force,” Falana added.