At the moment the world's attention is riveted on Spain's draconian moves against the Catalan referendum ( It is worth bearing in mind that just like the Kurds in Turkey, so too the Catalans were once not allowed to speak their own language, and of course, that the Catalans were opposed to Franco
Brother Kennedy Emetulu's learned treatise is OK...
Up to the eve of the 57th anniversary of Nigeria's Independence, we may still be starry-eyed and hopeful about the future, even as - on the sidelines, Mr Ogunye continues to shadow-box with himself or with some unsourced theoretical positions of his own creation/ imagination which he has chosen to engage/ to shoot down, without directly hurting any identifiable objects or nameable proponents of the views he has chosen to engage. When it's not entirely cowardly, it's known as "playing it safe " as in "Me noh call name O!" and that is, as you say, when he does not want to avoid what is avoidable, by naming Oga Falana as the main object of his dressing down/ opprobrium.
But really, what Falana thinks/ his other worthy but harmless cogitations are of secondary importance, it at all important.
In as far as Nigeria is still a democracy, for many millions of concerned citizens of Nigeria and elsewhere in this world, the most burning question right now is WHERE IS NNAMDI KANU ? And if we are still taking the legal perspective then the sub-question is, don't his parents and the rest of us have the right to know where the authorities, presidential, vice-presidential, military, police, judges, minister of prison affairs etc. legally or illegally have him right now? Buhari's minister of information Lai Mohammed probably knows and he could satisfy HUMAN RIGHTS WATCH distress about Mr. Kanu's fate...
On Saturday, 30 September 2017 07:24:50 UTC+2, keme...@googlemail.com wrote:
.....
Re: Operation Python Dance II In South-Eastern Nigeria Is Legal and Constitutional
In an article he titled "Operation Python Dance II In South-Eastern Nigeria Is Legal and Constitutional", Mr Jiti Ogunye presented his view as though he was doing this on behalf of himself and others. He did not name these others because the article only bears his name, but he indicated throughout that he was speaking for more than himself. Or is this just his own formal way of addressing himself in the plural sense? Anyway, whatever his reason(s), I will, in addressing this, treat it as solely Mr Ogunye's view until the contrary is stated.
Mr Ogunye chose to address what he said are two legal questions. This is how he presented them:
"Does the president of the Federal Republic of Nigeria, acting alone as commander-in-chief of the Nigerian Armed Forces, or through the chief of defence staff or any of the chief of staff of the three arms of the Armed Forces, have the statutory and constitutional power to deploy the military to any part of Nigeria, to quell an insurrection or to maintain and secure public order and safety, without the authorisation of the National Assembly? Assuming Operation Python Dance II currently being conducted in South-East Nigeria was authorised by the president, is the operation legal and constitutional?"
According to him, he's making this intervention because some people are mischievously stating the law. He said he's "impelled to intervene because erroneous and misleading arguments are being passionately canvassed in the media (print and broadcast) and in the social media, declaring that the military operation is illegal and unconstitutional, and that it is specifically targeted at South-Easterners by Muhammadu Buhari" who he says some people, who again he did not name but quoted, have described as "an unrepentant militarist" and a "Hausa Fulani power hegemon and supremacist". He further says these people have alleged that Buhari has "a deep seated hatred for the Igbos".
Honestly, I find Mr Ogunye's claims almost Trumpian because up to the time I read him, I had not read anyone of substance in law or in the media stating the law mischievously as he claims and I have not read anyone making those comments he's put in quotes over this matter. So, who is he responding to and who is he quoting? The more we search for those he's claiming to engage, the more we are dead-ended.
Mr Ogunye himself has not helped steer us in the right direction. For instance, I first read his take on a Facebook thread initiated by my Oga, Hrm Babatunde Ogala and, as I read, I wondered if Mr Ogunye's piece was a response to Mr Femi Falana's position on the law. Mr Falana was writing at a time we were reading in the news that the Army had put Mr Nnamdi Kanu under house arrest. In addressing what he considered as the illegality of the action, he touched generally on the military deployment itself and declared that there is no legal basis for the President to authorize the Nigerian Armed Forces to take over police duties in the South-East. But when one Mr Olufemi Adegboyega Kolawole came to the thread to speculate that Mr Ogunye's piece could be a response to Mr Falana in the ongoing legal crossfire, Mr Ogunye quickly came on the thread to state that his essay "is not and was not meant to be a response to or cross fire with Mr. Femi Falana, SAN". He said, rather, he was referencing the arguments of "other distinguished colleagues" in the media on the subject, but, again, he did not name these distinguished colleagues or refer us to the things he was referencing or responding to in the media
Of course, all this is a little frustrating. Sure, I'm aware that people may have different views on the issues Mr Ogunye has chosen to address, but to claim those who do not agree with him are mischievously stating the law and to do so without specifically telling us who these persons are and what they have said is to set us on a bit of a wild goose chase. That's unhelpful. Law in our jurisdiction is adversarial; whether in the courts or in any other public forum, you need to address your debating opponents directly. In other words, if you want a public debate, choose your opponents, name them, tell us what is wrong with what they have said and give us your own position. That's how to have a proper debate. So, it is my hope that as this debate progresses, Mr Ogunye will come out to put names and faces to those he's responding to, so we can be more informed.
Now, having said the above, I'd like to contribute to the substantive debate. First, I was initially impressed that Mr Ogunye clearly stated the two legal questions he wanted to confine himself to in the debate from the very beginning, but then he promptly lost his way thereafter. He spent the first ten paragraphs of his piece mostly discussing issues not related to the legal questions he had said he was confining himself to. I mean, he gave an expertly airbrushed account of the army's "show of force" and claims of a "right of way" in Nnamdi Kanu's village of Isiama Afara Ukwu in Abia state, he talked about the right of the army to conduct operations without hindrance and then he gave an account of his battle with people castigating him "for shedding crocodile tears" when he condemned the alleged violations of the human rights of the IPOB members in a video. He talked about an argument with people who say Kanu cannot be rearrested or should not be rearrested while on bail and then inveighed against a "desperate attempt" by some unnamed persons "to limit IPOB's responsibility for its activities to the ongoing trial of Nnamdi Kanu, without accounting for what he has done since his release on bail" and so on. The irony is that he said all these were people lumping issues "to obfuscate the central matter, which is the question of the lawfulness or constitutionality of the military operation" when, in fact, he, regrettably, was the one at this point clearly obfuscating the matter.
But the worst part of his polemic in that first part of his piece was his attempt to redefine the meaning of insurrection so as to justify the military operation in the South-East. In all this, he kept speaking contradictorily about not wanting to "argue the facts on the basis of which an internal security operation by the military can validly and legitimately be ordered by a president", while in the same breath he was proclaiming that "there is a factual basis for the President to exercise his powers to order Operation Python Dance", even though the military operation at Nnamdi Kanu's village happened before the commencement of Operation Python Dance and even though the Army presented the said Operation Python Dance as just a routine military exercise. Frankly, I consider that part of Mr Ogunye's article a little diversionary, obscurantist and filled largely with straw man arguments. If you start a piece by stating what you want to address, go straight to it and don't make any attempt at justifying other things that are not part of your focus.
Also, in addressing the substantive issues in his piece, I'd like to collapse the two legal questions Mr Ogunye has raised into one. I say this because I consider the first legal issue as the only relevant issue he has raised. What he considers as the second question, which is whether the military exercise currently being conducted in South-Eastern Nigeria is legal and constitutional is a passenger proposition because its premise is already subsumed in that first question about the President's statutory and constitutional power to deploy the military. I mean, first, we have to assume that the President authorized the deployment because nothing in the news or in the conduct of the military has indicated this is not the case. In fact, one of the press releases by the Army informing the public about Operation Python Dance II stated that the President deployed the military under the powers conferred on him by section 218 of the Constitution. The legality of the deployment is fully tied to the answer to the question as to whether or not the President acted constitutionally in deploying the military. So, if the constitutionality of the deployment is established, the question of whether the operation is legal and constitutional is otiose.
However, the question of whether whatever the military does there after lawful deployment is legal or constitutional is another matter entirely as their conduct in the theatre of operation is governed by separate laws (nationally and internationally) and once they're breached, their conduct, not their deployment, becomes unlawful. I'm saying it is obvious that if we focus on the one question of presidential deployment without recourse to the National Assembly, we would have effectively addressed every issue Mr Ogunye has raised.
Now, looking at Mr Ogunye's first question, which is the only one I've said I intend to address for reasons I stated, I would say I have a problem with the phrase "without the authorisation of the National Assembly" because the exercise of the President's power of deployment can happen in various forms that cannot be described as him being authorized by someone else or some other body, especially in the circumstances under consideration here. For instance, under section 217(2)(c), by the very wording of the law, the President and the National Assembly evidently share conjunctive powers and responsibilities with regard to the deployment of soldiers to suppress insurrection and act in aid of civil authorities to restore order when called upon to do so. While the President gives the actual order for deployment, directly or through the Chiefs of Staff, he can only do so "subject to such conditions as may be prescribed by an Act of the National Assembly". In the case of section 305(2), he can only do so after a resolution of the National Assembly approving the Proclamation of a state of emergency.
Also, under section 17, Part I of the Third Schedule of the Constitution, the President shares conjunctive powers with the National Defence Council, which is empowered to advise him on "matters relating to the defence of the sovereignty and territorial integrity of Nigeria" and that can include matters relating to deployment of troops. In fact, section 5(5) of the Constitution further emphasizes this conjunctive powers between the President, the National Defence Council and the Senate when it states that notwithstanding the provisions of section 5(4), "the President, in consultation with the National Defence Council, may 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 fourteen days." In other words, even though the President can for the purposes of section 217(2)(a) and (b) deploy troops on a limited combat duty outside Nigeria, he can only do so after consultation with the National Defence Council and for not more than 21 days before receiving the Senate's approval. In fact, he cannot even deploy troops on a limited combat duty outside Nigeria "except with the prior approval of the Senate" as stipulated by section 5(4)(b) of the Constitution.
We can also say in a general sense that the executive powers of the President (including power to deploy troops) is exercised conjunctively with the National Assembly because section 5(1)(a) of the Constitution which vests the powers in the President also says such executive powers may be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation "subject … to the provisions of any law made by the National Assembly". But section 5(4)(a) of the Constitution may actually present us with the only case we can say the President is actually authorized by the Nigerian people (through the National Assembly) to deploy troops via a declaration of a state of war between the Federation and another country. This is because the section says "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". The idea of the National Assembly sanctioning such a declaration connotes the people giving authority to the President to so declare.
Therefore, where the Constitution gives authority to both arms of government over a matter with none authorized to act independently to achieve the purpose of the act or law, we say both have conjunctive powers. None of them is authorizing the other one; they just have separate duties regarding the same thing. So, from the foregoing, we can see clearly that at no point has the Constitution given the President or the National Assembly sole power over military deployment, whether for operations abroad or for internal security operations in Nigeria. The Constitution gives each of them powers in certain areas with both acting in their designated area to achieve the common purpose.
Okay, having made these initial clarifications, I would now like to address the matter proper. In my humble opinion, I do not think any serious person is questioning the general power of the President to deploy the military to any part of the country without recourse to the National Assembly in every case that he has to do so. There is a reason it is an executive presidency and why he holds the official position of Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria.
I am emphasizing the phrase "general power" because it is obvious that the President's power to deploy is not an absolute power, as Mr Ogunye would like us to believe. So, to be clear, we are questioning the power of the President under the law in this specific case of the deployment to the South-East, not in the general sense of the deployment of the military for Operation Python Dance II as stated by the military when announcing this mission, but in the specific case of the operation metamorphosing into one supposedly aimed at quelling insurrection in line with section 217(2)(c), according to the claims being made by Mr Ogunye. I mean, Mr Ogunye's question is basically this: Does the President have the statutory and constitutional power to deploy the military under section 217(2)(c) of the Constitution without recourse to the National Assembly? So, we are questioning the wisdom of deploying the military to Igboland when there is evidently no insurrection or a breakdown of law and order of the nature Mr Ogunye and co are claiming.
At this juncture, let us talk a little bit about insurrection and our national history with it. This might help some of us objectively compare and contrast what we've always known as insurrection with what happened in the South-East being described by Mr Ogunye as insurrection with a view to deciding for ourselves whether the deployment of soldiers to the South-East is necessary. More crucially, a history of insurrection under democratic rules in Nigeria will give us an idea how democratic authorities have historically handled it in Nigeria, so we can see if President Buhari is following precedents.
Fact is an insurrection is a violent uprising that happens against or outside the national constitutional order. The first act of an insurrection is that it formally and violently rejects the laws and the government of the jurisdiction of the insurrection. Examples of insurrections in Nigeria are the 1964 Tiv riots, the Isaac Adaka Boro-led 12-day secessionist attempt in 1966 with the declaration of the Niger Delta Republic and the establishment of the armed Niger Delta Volunteer Force on the 23rd of February 1966, the 30th of May 1967 Biafran act of secession that ultimately resulted in the Nigerian Civil War, the Maitatsine riots of 1972, 1980, 1982 and 1984, the Niger-Delta militancy, the Boko Haram insurgency and the various military coups we have had in the country, except the successful ones. Once a coup succeeds, it becomes a revolution because it replaces the existing legal order.
Of all the above, only the Tiv riots of 1964 happened during the period of democratic rule in the First Republic. The Maitatsine riots of 1980 and 1982 happened in the Second Republic, while the Niger-Delta militancy and the Boko Haram insurgency are happening now during this Fourth Republic. As I implied earlier, each of these offers us an opportunity of seeing how the army is deployed under a democracy. We will see that in each case where the authorities have had to deploy soldiers to address an insurrection under a democratic dispensation, the police were first deployed and only after they've been overwhelmed before the armed forces were called in.
First, in the case of the Tiv riots, despite the very toxic political atmosphere surrounding the disturbances, Prime Minister Abubakar Tafawa Balewa's first instincts weren't to use the army. The riots were huge, but in the beginning, the government acted more to prevent a breakdown of law and order, rather than respond to actual breakdown of law and order. The police were fully in charge. Though the riots had been building up since 1960, it was in 1964 it became a full-blown insurrection when four policemen were killed following the murder of the clan head of Mbalagh in the Tiv Division. The police tried to beat back rioters, but the resistance was stiff and, in time, the flagging confidence of the police meant that the outgoing Inspector-General of Police, Mr John Hodge had to visit police units in the Tiv Division in February 1964 to help raise their morale. In July 1964, four police riot units were deployed to join those already on the ground and police emergency operations were directed by an Assistant Commissioner of Police, Baba Jimeta.
But the uprising was popular with more than fifty thousand rioters involved. Their ranks were bolstered by the presence of Tiv ex-servicemen who just returned from the UN mission in Congo. Their military expertise became evident in the operations as they camouflaged effectively and used inventive tactics to lure the police into mistakes. For instance the rioters would use what they called Adoki (scarecrows) as baits. They would dress several of them up, wear them hats and helmets and station them in strategic places in large numbers. The police would shoot at these thinking them humans. While the police were expending their arms and ammunitions on these, the rioters would be collapsing the scarecrows and the police would think these were casualties. Upon exhausting their ammunitions, but confident they'd overran the rioters, they would move forward to inspect the damage only to be surprised by the rioters lying in wait. The police lost several men in situations like this while it was a great morale booster for the rioters.
Soon it became clear that the police could not cope as the violence escalated. These were no longer mere riots and civil disturbances, but a full-blown guerrilla war by Tiv militias against the Northern Regional Government. It was at that point that the Prime Minister, Sir Abubakar Tafawa Balewa on November 18, 1964 invoked his powers under the Constitution to call in the Army (Nigerian Constitution Order in Council Supplement to Official Gazette Extraordinary, No. 61, Vol. 47, 30 September, 1960). It was the equivalence of section 217(2)(c). A whole Battalion of the Nigerian Army and the Recce Squadron were deployed there. The police formally admitted their failure and were withdrawn into reserve.
In the case of the Maitatsine riots of 1980 in Kano, at first these were politicized by the National Party of Nigeria (NPN) central government in Lagos because they thought these were going to clip the wings of the People's Redemption Party (PRP) governor of the state, Abubakar Rimi. Rimi didn't have a great relationship with the central government, he had fallen out with the Emir of Kano, Ado Bayero and also the leader of his party, Mallam Aminu Kano. But everybody knew the leader of the Maitatsine sect, Mohammed Marwa was an old customer who had been a security threat for more than two decades before then. Marwa and his followers took on the police, but when the Kano State Commissioner of Police asked for reinforcement from Lagos to deal with the insurgency, Sunday Adewusi, the Inspector-General of Police and a known NPN lackey refused to provide men. He was clearly acting the script of his NPN political overlords in their mission to teach Governor Rimi a lesson. Even the Nigerian Security Organisation (NSO) operatives attached to Kano and in the headquarters in Lagos refused to share intelligence with Rimi and the Kano State government.
After calling on his followers nationwide to come and defend his base in Yan Awaki quarters in Kano where he was involved in seizing private land and constructing illegal structures, something that had already put him at loggerheads with the state government, Marwa soon began a takeover bid of the Fagge Market and the Kano Central Mosque with the aim of installing his followers as Imams. To begin to put this plan in place, on the 8th of December 1980, he organized a campaign at the Shahuci prayer ground near the Central Mosque and the Emir's Palace. The police were forced to confront him. In the ensuing melee, four police officers were killed, thirteen police vehicles burned and several police weapons seized. The police were forced into a retreat. This emboldened the Maitatsine followers who went on rampage in the city for the next 20 days, leaving death and destruction in their wake. At this point, due to national and international pressure, the Shehu Shagari government at the centre had to act. On the 28th of December 1980, the army was called in and under Colonel Yohanna Kure they were able to bring the situation under control, killing several sect members, destroying their abodes in Yan Awaki, with huge collateral damage as well.
In October 1982, the nation witnessed some more Maitatsine-inspired riots in Bulumkutu and Maiduguri in Borno State and in Rigasa in Kaduna State. Followers of Maitatsine who had fled the Kano clampdown instigated these riots. They set up communes around some of the towns they settled, encroaching on other people's property and building against local planning laws. They frequently clashed with mainstream Muslims and Christians whom they harassed in their attempt to forcibly convert them to their beliefs. After several reports to the police, the authorities ordered a raid of their abode in Bulumkutu on the outskirts of Maiduguri. But they soon overwhelmed the police and the Shagari government had to call in the military. The task was given to the Major-General Muhammadu Buhari-led 3rd Armoured Division, Jos. The resulting skirmishes, which spread to other parts of the North where other fanatics went on rampage, saw the death of about three thousand persons. The fanatics set fire to their quarters in Bulumkutu and fled to other parts of the North and also into Chad Republic.
Though what most people remember most about the origins of the Boko Haram insurgency were the Thursday, 30th of July, 2009 extrajudicial killings of their leader, Mohammed Yusuf and some of their members, this was after the sect had began a violent campaign against the authorities with attacks on police stations and killing of policemen all over the North. This came to a head with the Sunday, 26th of July, 2009 attack on a police station in Bauchi which triggered a wave of militant violence across three other states in the North. This was why the Umaru Yar'Adua government called in the Army.
In the case of the Niger Delta militancy, it was more a guerrilla warfare. There were many police actions before soldiers were called in, but casualties weren't many because it mostly consisted of sabotage of oil installations after warnings had usually been given in advance. But because of the grave effect on the national economy, there was soon a negotiated settlement that led to the Amnesty programme. Though we still witness some of these sabotage actions now and again and we do hear militant sabre-rattling now and again (as we are hearing now), the peace is largely holding.
So, the Tiv riots, the Maitatsine riots, the Boko Haram insurgency and the Niger-Delta militancy have presented us the opportunities of seeing how civilian authorities deploy the military in a democracy in the situation of an insurrection. The most important thing to note for our purpose is that in each case, until it becomes an armed conflict initiated by the insurrectionists and until it is clear that the police are unable to handle the insurrection before the military is deployed. We can also extrapolate from the way our laws treat insurrection the very nature of it. For instance, the Criminal Code has no offence known as insurrection, but acts of insurrection are treated as acts of levying war against the state under section 37. In other words, an act of insurrection is a treasonable offence.
However, what we have in this IPOB case are some members of the Igbo community in the South-East under the banner of IPOB agitating for a referendum on the question of secession. We cannot by any stretch of the imagination say such civil agitation is insurrection. Or do members of IPOB not have a right to free speech and freedom of assembly, even though a lot of us are robustly against their message and some of their antics? Truth is no matter our personal views about Nnamdi Kanu's comments and personal conduct, an agitation for self-determination based on the laws of the land, even if opposed to the government, is not an insurrection, because citizens are allowed to be opposed to the government in exercise of their right to self-determination, right to free speech, freedom to hold opinion and freedom of assembly.
In fact, there is a parallel with what is happening in America right now. President Donald Trump is up in arms against NFL players who in his opinion wouldn't respect the US national anthem. He insults them and they insult him back, locking arms and defiantly kneeling during the anthem. In one symbolic day, hundreds of players, club owners and staff in every NFL ground defied him. Some NBA players have joined the fray, LeBron James called President Trump a "bum", Stephen Curry has wondered how a leader would behave like Trump and so on. In fact, LeBron James and the athletes now go around in a black T-shirt saying "TRUMP U SON OF A B*TCH!" installed below the picture of a huge middle finger stiffly pointing up to complete the message. But Trump isn't sending in troops to close down NFL grounds or arrest players and staff, even when he calls on people to boycott them. He's not sending soldiers to pick up LeBron James, Stephen Curry and the other defiant athletes and he isn't keeping quiet either. He's giving as well as he gets because, irrespective of the racial undercurrents in the whole thing, American democracy is alive and well. The right to free speech protects presidents and ordinary citizens alike.
Also in Iraqi Kurdistan, the Kurds have organized a referendum for independence opposed by the Iraqi state. Most world powers had appealed to them not to go ahead with it, the Iraqi Supreme Court ruled against it, but they have gone ahead defiantly. The Iraqi government isn't sending in soldiers to Kurdistan and no one is running around accusing the other of not being patriots. In a democracy, dissidents too are patriots. Of course, there would always be real and pseudo-patriots calling for a strong-arm response to calls for secession, but the test of a true democracy is the ability of its elected and appointed officials to resist the temptation of replacing the law with their personal whims and prejudices because once we go down that road, we would actually be killing democracy and our nation.
Really, there is nothing abnormal with the IPOB campaign for secession, despite their leader and some IPOB activists intermittently exhibiting symptoms of verbal diarrhea. As far as we all have the public space to debate our respective positions, we don't need the army to intervene. IPOB and Nnamdi Kanu were meeting freely with Governors, Igbo community leaders and members of the states' leadership in the South-East, issuing joint statements and assuring citizens they were all working towards a common purpose. The Governors and IPOB had scheduled a meeting for mid-September before the military deployment scuppered the whole thing. In fact, if indeed there was an insurrection in the South-East, the United Nations Development Programme (UNDP) would not have declared the South-East as the safest place to live in Nigeria in its last year report on the country. IPOB is not a secret society and their rallies are open to the pubic. There is nothing in the contemplation of the law or by the ordinary meaning of the word that would consider whatever was happening in the South-East before the military deployment as insurrection.
As a matter of fact, we know that the President and the military authorities at no time claimed that they were deploying the military to quell an insurrection. Every press release made by the military before and during the operation made no mention of insurrection nor did any of them state they were involved in dealing with anything of the sort. As the name implies, Operation Python Dance II is presented to Nigerians as a continuation of Operation Python Dance I. I mean, not that at the time of the first one anyone expected the Army to return the second year, but now the Army Chief of Staff Lieutenant-General Tukur Buratai has indicated that the Operation will now be conducted annually. That means we are talking routine yearly operations, not an operation against insurrection, except we now want to claim that insurrections in the South-East are permanent yearly occurrences that the Armed Forces must be attending to every year on the same date. Now how reasonable is that?
The point is at the time they were initiating the first Operation Python Dance, they simply called it a military exercise and spent a lot of time on PR, reassuring citizens of the South-East that they were there to help the people have a more secure yuletide as they were there to help generally with security. They said they would mostly be at checkpoints, but that people need not worry. In the end, it was acclaimed as a successful exercise, not one person was beaten, tortured or arrested. The only complaint people had was that the soldiers were extorting money from transporters and other citizens at checkpoints.
When they launched Operation Python II, they basically said they were going to be doing the same thing they did during the first one. It's not until Friday, 22nd of September that the 82 Division of the Nigerian Army suddenly released a statement claiming to be checkmating the "violent activities of the banned Indigenious (sic) People of Biafra". Still all they could say to support their claim is: "The usual violent activities of the outlawed Biafra "National Guards" (manning check points and extorting money from traders and motorists) have now been checkmated". Again, even though we are talking after the fact of deployment, it still does not pass the test of insurrection.
Mr Ogunye listed and discussed the sections of the Constitution and the laws he said are relevant in resolving the question of the legality and constitutionality of Operation Python Dance II. His submission is that "a combined reading and interpretation of the provisions of Section 217(2) (c); and Section 218 (1, 2 &3) of the Constitution, and Section 8 (1, 2 &3) of the Armed Forces Act, Cap. A20, LFN, 2004 show clearly that the President of the Federal Republic of Nigeria is vested with the powers to authorize the conduct of military operations, including Operation Python Dance II without recourse to the National Assembly". Mr Ogunye believes that this is the power the President exercises "as a Commander in Chief of the Armed Forces, which, as the Constitution currently stands, he does not share with the National Assembly, another arm of government".
Clearly, we can see that Mr Ogunye's interpretation of section 217(2)(c) of the Constitution is that it grants the President absolute power to deploy the military for the purpose of suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so" despite the fact that the provision states plainly that the President's power to deploy the military for this specific purpose is "subject to such conditions as may be prescribed by an Act of the National Assembly". His support for this interpretation he said is based on reading section 217(2)(c) in combination with section 218(1) which states that the powers of the President as the Commander-in-Chief of the Armed Forces of the Federation "shall include power to determine the operational use of the armed forces of the Federation". Again, he ignores the provision of section 218(4)(a) which states that the National Assembly shall have power to make laws for the regulation of the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation. As for Section 8(3) of the Armed Forces Act, it merely explains that "operational use of the Armed Forces" includes the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order.
Now, I did say the worst part of Mr Ogunye's polemic in that first part of his piece was his attempt to redefine the meaning of insurrection so as to justify the military operation in the South-East, even though the President and the Armed Forces have not said they are there to quell an insurrection. This argument is crucial for him, even though he somewhat tried to straddle both sides as he went along because he wants to find an extraordinary reason for the military being there. I mean, he started off strongly claiming there was an insurrection in the South-East that triggered the President into acting on the basis of section 217(2)(c) of the Constitution. He made out that the only question was not whether there was an insurrection, but whether the President has any parliamentary check on his powers to deploy the military at that point. He assures us that "a calm and sober reading of the provision of Section 217(2)(c) does not yield a meaning that unless and until the National Assembly makes a law setting out or prescribing the conditions for the exercise of the power of the President to call on the military to suppress an insurrection in aid of civil authorities, the President cannot exercise that power".
Then, in the midst of all that, he came up with this:
"Now, more relevant to our question for determination in this essay, Section 218 (1) of the Constitution provides that "the powers of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the armed forces of the Federation".
"Under Section 218 (1) of the Constitution, the President, as Commander-in Chief, determines the operational use of the Armed Forces of the Federation. The same power of determining the operational use of the Armed Forces is vested in the President by Section 8(1) of the Armed Forces Act, which in Section 8(3) [the definition subsection] defines "operational use of the Armed Forces" to "include the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order".
"Thus, even if there is no insurrection, if there is a real and present threat to public safety and order, and there is a need to maintain and secure public safety and order, the President is statutorily empowered to operationally use the Armed Forces to keep or enforce the peace".
This is tongue-tying obfuscation! Who is arguing that the President's power to determine the operational use of the Armed Forces of the Federation is in question? I mean, Mr Ogunye told us that the President exercised his operational power over the military under section 217(2)(c) of the Constitution because there is an insurrection. Having led us mid-sea, he then turned round to say, actually, even if there is no insurrection, the President is still statutorily empowered to operationally use the Armed Forces to keep or enforce the peace, as far as there is a need to maintain and secure public safety and order. And he now wants us to believe that "more relevant to our question for determination" in his essay is the President's power as the Commander-in-Chief of the Armed Forces of the Federation to determine the operational use of the armed forces of the Federation". How? Who is debating the President's power to determine the operational use of the armed forces of the Federation? And, by the way, is the power of the President to determine the operational use of the Armed Forces independent of section 217, which clearly indicates the circumstances and stipulates the conditions under which the Armed Forces can be deployed? Does the fact that the Constitution empowers the National Assembly to prescribe conditions for the exercise of the power of the President to call on the military to suppress an insurrection and aid civil authorities stop the President from exercising his operational power over the Army?
It seems to me that Mr Ogunye tried to 'insure' his argument when he declared that "…even if there is no insurrection, if there is a real and present threat to public safety and order, and there is a need to maintain and secure public safety and order, the President is statutorily empowered to operationally use the Armed Forces to keep or enforce the peace". So, really, can the President deploy the army even if there's no insurrection? Sure, but only if such a situation is covered under 217(2)(c), that is if the civil authorities in the area call on the President to deploy soldiers to act "in aid of civil authorities to restore order". I mean, we operate a federal system and there is a reason the Governor of a state is the Chief Security Officer of that state, there is a reason every state has its Police Command under a Commissioner of Police. In exercising his power to deploy the troops under section 217(2)(c), the Constitution is contemplating situations where the civil authorities and the police in the state must have failed to contain the trouble in question and are therefore compelled to call upon the President to deploy soldiers "to restore order". This can be done under the provisions of section 305(4) of the Constitution, that is when the Governor of a state and the state legislature request the President to issue a Proclamation of a state of emergency when any of the events specified under section 305(3)(c), (d) and (e) happens or it can be done directly under the provisions of section 217(2)(c) once it is obvious that the civil authorities cannot cope and once they ask for the help directly without a declaration of a state of emergency. In any case, deploying soldiers in cases of civil disturbances is certainly not the first line of action, no matter what the President thinks.
And that brings me to the question of why Mr Ogunye did not deem it fit to explain the role of the police in all this. I mean, you would expect that if he's calling for the outright deployment of soldiers or is justifying same, he should be able to tell us why the police are not the appropriate authorities to call in at this stage. Why does he think the use of the military is okay in any case there is the need to secure public safety and order? What law supports that view?
It is instructive that at the height of the men
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