Nigerian soldiers

Mr Femi Falana, a Senior Advocate of Nigeria (SAN) and the Chair, Alliance on Surviving Covid 19 and Beyond (ASCAB) has advised President Bola Tinubu that nowithstanding the resolution of the Economic Community of West African States to resort to the use of force to flush the military junta in Niger in a bid to restore President Mohamed Bazoum, his administration is mandatorily required to seek the approval of both houses of the National Assembly.

This, according to Falana, is in compliance with section 5(4) of the Constitution of Nigeria 1999 (as amended), which stipulates as follows:

“(4) Notwithstanding the foregoing provisions of this section:

(a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly, sitting in a joint session; and

(b) except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria.

However, by virtue of section 5(5) thereof, the President, in consultation with the National Defence Council, may, as Falana pointed out further,  deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger:

Provided that the President shall, within seven days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within 14 days.

The Senior Advocate advised further: “In addition to the above constitutional mandate, the ECOWAS is required to seek and obtain the authorisation of the UN Security Council to launch an attack on a sovereign nation pursuant to article 53(1) of the United Nations Charter. Article 53(1) provides in part, “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council….”

Tinubu, front, centre, and other ECOWAS leaders

This means that the conduct of the ECOWAS, as a regional arrangement, is subject to the provisions of the United Nations Charter, particularly article 53(1) and general international law.

Therefore, the ECOWAS can not justify any intervention in Niger without the authorisation of the Security Council.

Femi Falana, SAN

It is also clear that any intervention by the ECOWAS, apart from being subject to the authorisation of the Security Council, must be on a collective basis and not a unilateral one.

In the absence of explicit Security Council authorisation, any intervention by the ECOWAS would be illegal, unless it concerns a situation of self- defence, which is clearly not the case in the situation of the planned intervention in Niger.”