Jega’s Error On The Role Of The Armed Forces In General Election, By Femi Falana

Femi Falana

During his appearance at the Senate chambers, the Chairman of the Independent National Electoral Commission, Professor Attahiru Jega reiterated the preparedness of the electoral body to conduct the General Election on March 28 and April 11, 2015. However, he maintained that only the military could guarantee security during the election. For reasons best known to the Senate President, Senator David Mark he rejected the demand of his colleagues to summon  the security chiefs and the National Security Adviser to explain their illegal interference in the constitutional responsibilities of the INEC in the management of the general election. By refusing to summon the military chiefs to clear any doubt on the election dates the statement of Senator Mark that May 29 handover date is sacrosanct is an empty assurance.

One again, I wish to state, without any fear of contradiction, that by virtue of section 215 of the Constitution the maintenance of internal security including law and order during elections is the exclusive constitutional responsibility of the Nigeria Police Force. It was therefore erroneous on the part of Professor Jega to state that only the military could guarantee security during the forthcoming election. Once the INEC has discharged its constitutional duty of fixing election dates the onus is on the Police to provide security and maintain law and order. Since election is not a military duty the Police Force is at liberty to collaborate with other law enforcement agencies like the Nigeria Customs Service, Nigerian Civil Defence Corps, Nigerian Prisons Service etc.

No doubt, President Olusegun Obasanjo engaged in the illegal deployment of the army for the manipulation of the 2003 general elections. But 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 NWLR (PT 956) 96 the Court of Appeal  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”.

The court reiterated its views in the case of Buhari v Obasanjo (2005) 1 WRN 1 at 200 when it stated 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”.

In the last couple of weeks, in two separate judgments both the Federal High Court and the Court of Appeal ruled that the armed forces have no role to play in the management of elections in Nigeria. With respect to the governorship election conducted in Ekiti State in June 2014 the Court of Appeal 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 the 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.”

In the light of the foregoing, Professor Attahiru Jega should ensure that INEC is not further blackmail by the military hierarchy. On their own part, the National Security Adviser and the Service Chiefs should desist from usurping the constitutional responsibility of the INEC and the Nigeria Police Force.

Mr. FEMI FALANA, SAN, writes from Lagos

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