Human rights lawyer, Femi Falana, has told, the military not to intimidate voters during the general elections.
Falana said this in a six-page statement in which he gave details of several court injunctions, that had declared the involvement of the military in elections as illegal.
He also quoted Justice Mohammed Rilwan of the Federal High Court in Sokoto, as saying that, “other than for the purposes of protecting Nigeria’s territorial integrity, there is no constitutional provision that allows for the deployment of the military for elections.”
His comments come days after President Muhammadu Buhari, ordered the army and other security agencies to “deal ruthlessly”, with anyone who was caught snatching ballot boxes during the elections.
Falana who also joined to criticise the order by the President, further explained that “if the President was desirous to deploy soldiers for elections in the country, the judge advised him to request the National Assembly to enact a law to that effect”.
Read the full statement below:
Illegal involvement of armed forces in election duties.
No doubt, President Olusegun Obasanjo engaged in the illegal deployment of the army for the manipulation of the 2003 general elections.
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 NWLR (Pt ) 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.
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 behaviour 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 aforesaid pronouncements of the Courts President Obasanjo decided to deploy several battalions of soldiers to many states for the 2007 “do or die” general elections.
His successor, the late President Umaru Yaradua continued the illegal policy as he deployed soldiers for the rerun gubernatorial 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).
The armed forces were involved in the conduct of the elections in Edo, Anambra, Osun, and Ekiti governorship elections.
On June 19, 2014, two APC governors, Comrade Adams Oshiomole and Mr. Rotimi Amaechi of Edo and Rivers states respectively had their fundamental right to freedom of movement crudely violated at Iju-Itagbolu in Ondo State by armed soldiers who crudely prevented them from attending a political rally at Ado Ekiti.
The soldiers had claimed that they were acting on “orders from above”.
The armed soldiers also subjected every hotel at Ado Ekiti to a search without warrant between 10 pm and 2 am 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 Progressive Congress members were harassed and expelled from the state by the army some non-indigenes who are chieftains of the People’s 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 troops.
Although the Court of Appeal affirmed the verdict of the Ekiti State Governorship Election that Mr Ayo Fayose of the PDP won the governorship election it condemned the intimidation of voters by armed troops.
Speaking for the Court, Justice Aboki stated, “Even the President of Nigeria has no power to call on the Nigerian Armed Forces and to unleash them on peaceful citizens, who are exercising their franchise to elect their leaders.
Shortly before the 2015 general elections, the Federal High Court, sitting in Sokoto, declared the planned involvement of the armed forces in the democratic exercise illegal and unconstitutional.
The presiding judge, Justice Mohammed Rilwan said that “other than for the purposes of protecting Nigeria’s territorial integrity, there is no constitutional provision that allows for the deployment of the military for elections.”
If the President was desirous to deploy soldiers for elections in the country the judge advised him to request the National Assembly to enact a law to that effect.
In the same vein, Justice Mohammed Buba of the Federal High Court granted the relief sought by Honourable Femi Gbajabiala and restrained President Jonathan from deploying the armed forces for the 2015 general election.
But in defiance of the perpetual injunctions granted by the court against the involvement of armed troops for elections former President Jonathan directed them to guarantee “security” during the 2015 general elections.
Similarly, President Buhari has deployed the armed forces to maintain law and order during the 2019 general election. In fact, the Chief of Army Staff, General Umar Buratai has been threatening to deal ruthlessly with electoral offenders.
In view of the judicial authorities cited above it is submitted that the deployment of the armed forces for the maintenance of law and order during elections cannot be legally justified by virtue of section 215(3) of the Constitution which has vested the Police with the exclusive powers to maintain and secure public safety and public order in the country.
However, the President is empowered under 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.
As the Constitution has limited the involvement of the armed forces in internal security to (a) the suppression of insurrection including insurgency and (b) aiding the police to restore order when it has broken down, it is illegal and ultra vires on the part of the President to deploy the armed forces to maintain law and order during elections.
Consequently, the Nigeria Police Force should be adequately equipped and funded to discharge the duty of ensuring internal security in the country while the armed forces are restricted to the defence of the nation’s territorial integrity.
Notwithstanding the contemptuous decision of the authorities of the armed forces to involve armed military personnel in the 2019 general elections they are advised to comply with the directive of the Commander-in-Chief of the armed forces, President Muhammadu Buhari not to subject voters to intimidation while casting their votes on February 23 and March 9, 2019.
Since all citizens including voters are restricted to their wards during the elections, the police and civil defence officials ought to maintain law and order while military personnel are placed on alert as they are confined to their barracks.