Politics

Governors lack powers to impose curfew –Brig Gen Ikponmwen

 

 

measures to restore peace and security and all the conditions mentioned earlier.

 

(g) The President receives a request to do so in accordance with the provisions of Subsection (4) of this section.”

 

It is not intended by the provision of Section 305 of the Constitution that a governor in a state of the federation should issue a proclamation of a State of Emergency.

(3) Sub-Section 4 is to the effect that a governor of a state may, with the sanction of a resolution supported by two-thirds majority of the House of Assembly, request the President to issue a Proclamation of a State of Emergency in the state when there is in existence within the state any of the situations specified in Section 305 subsection (3) (a)-(e) of this section.

 

The governor is to take steps within a reasonable time to make request to the President to issue such proclamation. The President may as the Commander-in-Chief of the Armed Forces instructs the Armed Forces to carry out any or all of the functions in Section 217(2) which provides as follows:

[2] The federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the Armed Forces as may be considered adequate and effective for the purpose of- [a] defending Nigeria from external aggression; [b] maintaining its territorial integrity and security its borders from violation on land, sea, air; [c] Suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly

It is pivotal to note that in a bid to suppress any act of insurrection as provided in sub (2) (c) the President may order the deployment of the Armed Forces (which includes the Military) which may amount to the extraordinary use of the Military for the purpose of maintaining law and order in any part of the Federation, thus playing an internal security role.

In other words, no Governor has the constitutional power to issue a proclamation of a state of emergency in any part of their States. The President reserves the sole constitutional powers to make such order in the federation or any part thereof.

 

What is the legal/constitutional authority for state governors to impose curfew in their respective States?

 

It is hard to find any explanation for the power of the state governors to impose curfew in their states within the provisions of the Constitution, particularly Section 305 of the 1999 Constitution. Our argument is further supported by Section 215(3) which states: “The President or such other Minister of the Government of the Federation as he may authorize in that behalf may give to Inspector General of Police (IGP) such lawful directions with respect to the maintenance and security of public safety and public order as he may consider necessary, and IGP shall comply with those direction or cause them to be complied with’’.

 

The above rendering of Section 215(3) is to the effect that the Police are under the command of the IGP and the President. What is more, Section 218 makes it abundantly clear that the President is the Commanderin- Chief of the Armed Forces and therefore rendering the Armed Forces not answerable to any governor or any state official, no matter how highly placed. The question is: if the armed forces and the police are not under the command of the governors, how then can governors impose a curfew which they have no means of enforcing?

 

The Constitution must be deemed to have said all it meant to say about insurrection, breakdown of law and order clearly stating how it is to be dealt with. This power to deal with insurrection is the exclusive preserve of the President and the National Assembly and no one else.

 

Therefore, it is abundantly clear that no governor can derive the power to deal with this phenomenon of breakdown of law and order or insurrection from any other source of our law if any, because the Constitution being the Supreme Law cannot be contradicted, as such contradiction to the Constitution is deemed null and void and of no effect. My submission therefore, is that no governor reserves the power to order a curfew in his state or any part thereof.

 

What are the roles and duties of the Armed Forces of Nigeria under the Nigeria Constitution?

 

The roles and duties of the Nigeria Armed Forces are clearly spelt out in Section 217 of the Constitution as follows: (1) There shall be an Armed Forces for the Federation which shall consist of an Army, a Navy, an Air Force and such other branches of the Armed Forces of the Federation as may be established by an Act of the National Assembly.

(2) The Federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of –(a) defending Nigeria from external aggression; (b) maintaining its territorial integrity and securing its borders from violation on land, sea or air; (c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly; and (d) Performing such other functions as may be prescribed by an act of the National Assembly.

 

By virtue of Section 217(2) (c) there are basically three responsibilities for the Armed Forces of the Federal Republic of Nigeria: The first is to protect the nation from external aggression, and the second is to secure the territorial integrity of Nigeria from violation, on Land, Sea or Air. These first two duties have hardly ever been in doubt.

 

The real issue of worry is the third responsibility of calling in the military on the occurrence of insurrection. “Section 217(2) (c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly”.

 

The wordings of this section makes it clear that this section conveys the extraordinary use of the military in its Law and Order role can only be invoked not just in case of mere infraction of the law but the uprising must be in the nature of insurrection otherwise referred to as “domestic was” The justification for resorting to this measure is predicated on the need for an approval by the National Assembly for the extraordinary use of the Military to restore law and order.

 

It is apposite to state Section 305 (3) (c) there is actual breakdown of public order and public safety in the federation or any part thereof to such extent as to require extraordinary measures to restore peace and security.”

 

The above provision co-relates and complements Section 217 (2) (c) and that these two sections read together lead inevitably to the conclusion that military forces cannot be called in unless a state of emergency has properly been proclaim in Nigeria or any part thereof. Without any doubt, therefore, those who drafted the Constitution intended to keep the military out of public glare and out of routine law enforcement duty, which are the responsibility of civil law enforcement agency, as required in a civil democracy.

 

Can any member or detachment of the Armed Forces be placed under the command of state governors or state official under any circumstance?

 

The President is the Commander-in-Chief of the Armed Forces of the Federation and shall determine its operations. No branch of the Armed Forces can be placed at the disposal of civil/state authorities no matter how highly placed; Military Order and Civil Order are two distinct disciplines.

 

Civil authorities are not in a position to understand the language and laws that guide the military, nor do they understand the nature of the lethal (deadly) weapons and equipment that the military can unleash.

 

The dangers of exposing military men to the command of civilians or civil authorities are too enormous to explain in a short interview like this. In America whose system of government we have adopted the Constitution forbids it and the parliament has since passed several laws to forbid it – See for example

 

The Posse Commitatus Act of 1878 As Amended. For over 10 years my colleagues and I in the Army Legal Services, in the Army School for Military Police and in the Army Training and Doctrine Command (TRADO), left no doubt in the mind of the Army high command as to how to run the Army under a democratic system.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We do not know how these ideals became lost to our rulers since 1999 but it is worrisome that they set these ideals aside. In essence, under no circumstance does the Constitution or any other law empower governor(s) to issue command to Armed Forces.

 

The power of deployment of military personnel to the states is at all times the preserve of the President of Nigeria, until an amendment is made to the Constitution. That remains the position of our constitution.

 

It is beyond argument that successive Nigerian governments have not been running the country in conformity with our Constitution. Over the years, there have been overwhelming cases of flagrant disregard to extant laws and constitutionally entrenched due process. It is ironical that governments that do not follow the Constitution nor obey court orders expect the citizens to be law – abiding.

 

This is the height of hypocrisy, insincerity and inconsistency which must be condemned by all well-meaning Nigerians.

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