By Femi Falana
During his appearance at the Senate chambers yesterday, 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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