By Aloy Ejimakor<\/p>\n
Yes, I will say it again that – ‘Operation Python Dance or Egwu Eke 2’ –
\nis unconstitutional. Below are the points and authorities:<\/p>\n
1. According to the Army press release, the President acted pursuant to
\nSection 218 of the Constitution which gives the President the “power to
\ndetermine the operational use of the armed forces of the Federation”. But
\nthat power is NOT absolute as it is unarguably qualified by Section 217,
\nwhich clearly sets forth the situations\/conditions for the exercise of
\nthat power. The circumstances\/conditions are:<\/p>\n
(i) for the defence of Nigeria from external aggression.<\/p>\n
(ii) for the maintenance of the territorial integrity and securing the
\nborders of Nigeria from violation on land, sea and air, AND …<\/p>\n
(iii) for suppressing insurrection and acting in aid of civil authorities
\nto restore order when called upon to do so by the President; subject to
\nsuch conditions as may be prescribed by an Act of the National Assembly.
\nIn this last scenario, that is – suppression of insurrection and
\nassistance to civil authorities – the President can only invoke such
\npowers on terms prescribed by an Act of the National Assembly. Python
\nDance was predicated under this subsection. Think!!!<\/p>\n
2. To be sure, the power to deploy troops to suppress an insurrection is
\nexactly what it says … suppressing insurrection, not fighting
\nkidnapping, armed robbery, killing of priests and certainly not in
\nsuppressing ‘unarmed’ agitation … as the army press release stated. To
\nbe clear, ‘agitation is garden variety expression of political
\nopinion\/peaceful assembly expressly protected under Chapter IV of the
\nConstitution’. It’s easily distinguishable from ‘internal insurrection’,
\nwhich bears two elements – active bearing of arms; and actual levying of
\nwar against the federal government. In the interim, there’s no such thing
\nin the Southeast. And all the reasons adduced for Egwu Eke are prevalent
\nin all parts of Nigeria.<\/p>\n
3. There are three recent and closely related judicial pronouncements (two
\nfrom Federal High Court, one from Court of Appeal) that are considered
\nlocus classicus on the issue at bar. The details are as follows:<\/p>\n
(i). In a January 2015 judgment, Justice R.M. Aikawa of the Federal High
\nCourt Sokoto invalidated President Jonathan’s unilateral deployment of
\nsoldiers for the June 2014 Ekiti State guber election. The judgement
\nrestrained Jonathan \u201cfrom engaging the service of the Nigerian Armed
\nForces in the security supervision of elections in any manner whatsoever
\nin any part of Nigeria, without an Act of the National Assembly.\u201d<\/p>\n
(ii). On appeal, the Court of Appeal, per Justice Abdul Aboki, in a
\njudgment delivered in February 2015, held that \u201cthe President of Nigeria
\nhas no powers to call on the Nigerian Armed Forces and to unleash them on
\npeaceful citizens”. The court maintained that ‘Section 215 of the 1999
\nConstitution makes the maintenance of internal security, including law and
\norder the exclusive responsibility of the police’.<\/p>\n
(iii). The following month – in March 2015 – the Federal High Court (in
\nGbajabiamila v. President Jonathan, et al) ruled on the same issue, and
\nthat is: deploying soldiers to civil duties. Justice Buba of that court
\nstated that deployment of soldiers to civil duties such as elections was a
\ncontravention of Section 217(2) (c) of the Constitution and section 1 of
\nthe Armed Forces Act, noting particularly that the ‘military was not
\nneeded for civil duties’. The judge said that ‘the law does not make
\nprovision for the military to be involved in civil activities’. He also
\nsaid that ‘the appellate court directly interpreted the Constitution when
\nit held that Sections 215 and 217 jointly limit the president\u2019s power to
\ndeploy soldiers to the suppression of insurrection and to aid the police
\nto restore order when it has broken down’.<\/p>\n
4. The foregoing three separate judicial pronouncements have clear support
\nin judicial history. They are:<\/p>\n
(i). The Court of Appeal in Yussuf v Obasanjo (2005) 18 NWLR (PT 956) 96,
\nheld that \u201cIt is up to the police to protect our nascent democracy and not
\nthe military, otherwise democracy might be wittingly or unwittingly
\nmilitarized. This is not what the citizenry bargained for in wrestling
\npower from the military in 1999. Conscious step or steps should be taken
\nto civilianize the polity to ensure the survival and sustenance of
\ndemocracy.\u201d<\/p>\n
(ii). On the same issue, the Supreme Court in Buhari v Obasanjo (2005) 2
\nNWLR (Pt. 910) 24, at 520 \u2013 521, Nsofor, JCA, stated as follows: “There
\nwas no state of war in any of those States, no emergency declared therein.
\nOn the other hand there was peace and calm and tranquility”.<\/p>\n
5. Let it be clear that at issues in the foregoing precedents as well as
\nPython Dance are two …<\/p>\n
(i). The power of the President to deploy soldiers to civil or police
\nduties. So, if the Courts did not find, as in the foregoing precedents,
\nthat ‘electoral violence’ is sufficient cause to deploy soldiers to
\npolice\/civil duties, it’s more than likely that the justifications offered
\nfor Egwu Eke would be summarily struck down; AND …<\/p>\n
(ii). Should the President find cause to deploy soldiers to deploy
\nsoldiers suppress insurrection and act in aid of civil authorities to
\nrestore order, he MUST first seek the permission of the National Assembly.<\/p>\n
On the basis of the foregoing, I predict that a flurry of lawsuits will be
\nlevied against Python Dance in the next few days<\/p>\n","protected":false},"excerpt":{"rendered":"
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