It is therefore obvious from the above statutory provisions
that the Armed Forces had more or less a routine duty of aiding the civil
authorities in the maintenance of law and order. Thus as far as maintenance
of law and order was concerned, the military had co- ordinate jurisdiction
with the civil police except that the police had precedence in terms of
execution. It is particularly note worthy that these statutory provisions,
in so far as they are at variance with the provisions of the 1999 Constitution
of the Federal Republic of Nigeria , have been rendered null and void. Thus the legal basis upon which our erstwhile IS doctrine/tactics was based no longer exists having given way to the imperatives of the clear workings of, first, the 1979 and the recent 1999 Constitutions. It must be emphasised here that under the presidential system of government and currently in use, the supremacy of the constitution is sacrosanct. This means that any action of any organ of government and any law that is contrary to the letters and spirit of the constitution must of necessity be null and void and of no legal consequence whatsoever.
Therefore, there can be no use of the military for any purpose without the authority of the President who, himself, ought to be guided by the laws made by the National Assembly in this regards. In view also of the fact that the military ruled for over 30 years out of the 39 years of independence, the concept of constitutional supremacy is proving difficult to imbibe. This also explains why some people in government continue to support the idea of involving the military in halting civil disturbances without "undue delay." Section 217 of the 1999 Constitution deals with the Armed forces of the federation. The entire provision of this section is stated below: "(1) There shall be an Armed Forces for the federation which shall consist of an Army, a Navy, an Airforce 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 and air; (c) Suppressing insurrection and acting in aid of civil authorities to restore law and 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.
In discussing the role vested on the Armed forces by the constitution, the provision of section 217 (2) (c) need to be particularly emphasised. The whole purport of this section is to introduce a new dimension in the concept of military role in IS. The emphasis is on "to restore order when called upon to do so by the President." It should be noted that "suppressing insurrection," and "acting in aid of civil authorities" is linked with the conjunctive word "and" and not the disjunctive word "or". Thus the suppression of insurrection and acting in aid are inseparable and must be done to restore order and can only be embarked upon when it has become necessary to restore law and order. This is clearly different from the erstwhile concept of maintaining law and order which is ordinarily routine responsibility of the Police. It is the writer's view that the proper interpretation of the above provision relating to the use of the Armed Forces is that the Armed Forces has no business in the routine function of maintaining law and order which is the duty of the Police until there is an actual breakdown of law and order in part of the whole of the federation requiring extra ordinary measures outside the capability of the Police.
Before concluding the discussion under this head, it may be necessary to draw attention to the existence, under this constitution, of certain federal executive bodies. These bodies include the Council of States, the National Defence Council, the National Security Council and the Nigerian Police Council. These bodies, established under the 3rd schedule to the Constitution of the Federal Republic of Nigeria 1999, hereinafter referred to simply as "the constitution" exist as advisory bodies to the President on national issues especially issues concerning defence and national security. It is expected that if these bodies are duly consulted especially on matters relating to national security, the fears of arbitrary deployment of troops for law and order duties would be minimal. It should be noted that section 72 and 73 of cap 42 earlier referred to have since 1990, when our laws were reviewed, been re-enacted as cap 77 of the Laws of the Federation (1990). They substantially retain their previous form even though their provisions were in conflict with the 1979 Constitution. In other words, ordinarily, those provisions remain as existing laws under the 1999 Constitution. However, in view of section 315 of the Constitution dealing with the position of existing laws, those provisions must be void to the extent of their inconsistency with the provision of section 217 and 218 of the Constitution.
The Nigeria Police Force The provisions of the constitution regarding the establishment of the Nigeria Police Force (NPF) are contained in the section 214-216 of the constitution. Section 214 (1) provides: "There shall be a Police for Nigeria , which shall be known as the Nigeria Police Force, and subject to the provision of this section no other police force shall be established for the federation or any part thereof." Section 214 (2) (b) says: "The members of the Nigeria Police shall have such powers and duties as may be confered upon them by law." Section 214(2) (c) provides that "the National Assembly may make provisions for branches of the Nigeria Police Force forming part of the armed forces of the Federation or for the protection of harbours, waterways, railways and fields." From the above constitutional and statutory provisions, it is clear that the primary and routine responsibility for maintenance of public order and public safety is a matter for the Nigeria Police Force. The force is expected to use its second tier, the Police Mobile Force, to deal with serious situations beyond the capability of the regular police force. It is only when the two tiers of police using all reasonable measures available to them failed that the Armed Forces may rightly be called in only at that point could it be said that law and order has broken down requiring restoration measures by the superior forces of the military.
PROCLAMATION OF A STATE OF EMERGENCY
Under the provision of section 305 of the 1999 Constitution, the President is empowered to make a proclamation of a state of emergency in the federation or any part thereof. The conditions under which such a state of emergency can be declared are in Sub-section 3. They are as follows: (3) The President shall have power to issue a proclamation of a state of emergency only when (a) The Federation is at war. (b) The Federation is in imminent danger of invasion or involvement in a state of war. (c) There is actual breakdown of public order and public safety in the Federation or any part thereof to such an extent as to require extra-ordinary measures to restore peace and security. (d) There is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extra-ordinary measures to avert such danger. (c) There is an occurrence of imminent danger or the occurrence of any disaster or natural calamity affecting the community or a section of the community in the Federation. (f) There is any other public danger which clearly constitutes a threat to the existence of the Federation or (g) The President receives a request to do so in accordance with the provisions of Sub-section 4 of this section. Sub-section 4 is to the effect that a governor of a state may, with the sanction of a resolution supported by two-third 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 sub-sections 3(c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the state. Sub-section 5 says the President shall not issue a proclamation of a state of emergency in any case to which the provisions of sub- section 4 of this section apply unless the Governor of the State fails within a reasonable time to make a request to the President to issue such proclamation. It must be noted that the power of the President to give effect to a proclamation is subject to reaffirmation of the National Assembly.
TYPES OF OPERATIONS IN WHICH The ARMED FORCES CAN BE INVOLVED
Operations for maintenance of law and order and public Safety are essentially police responsibilities. This has become particularly so since the adoption of the presidential executive system of Government in Nigeria . Thus strictly speaking, this writer does not believe that the Military should be involved in the routine task of maintaining Law and Order and the protection of public safety. It is also the writer's view that operations pursuant to the above role which are listed below should, originally, be part of police operations in a democratic setting. These operations include: Crowd disposal, Riot Control, Patrols, Arrests, Cordon and Search, Guiding/ Protection of KPs & Vps and Control of Urban Movements. However, the military should continue to train in these areas and be ready to embark on them when called upon as Federal Security Agents whose role include "suppression of insurrection and acting in aid of civil authorities to restore law and order" and maintenance of public safety when called upon by the President. Other operations which the military may be involved in their capacity as guarantors of national sovereignty and protection of the nation from aggression from land, air and sea include: a. Counter Revolutionary Warfare (CRW)
b. Counter Insurgency Procedure For Calling Out The Armed Forces As soon as signs of civil disturbance start to emerge, security agencies and executives at all levels are bound to know. It is expected even at the outset that information flow between these organisations should start. The local government authority is the tier of government closest to the people so one expects that that level of government, with whatever security agencies available, would be the first to start taking measures to deal with the crisis. It is also expected that effort to address civil disturbance should start from the local government level moving up to State government and subsequently to the Federal Government level In practice local government authorities would be in regular communication with security agencies available at their level and same is expected at State level even though, regrettably, the constitution does not provide for security committees at local government and State Levels. The request for military aid ought, therefore, to move upwards from local government through states to the President, who is the only authority that can issue the order for troops involvement. Even as Local and State Governments are attempting solutions, the Federal authorities would not be feeling unconcerned.
Evaluation of information/intelligence and consultations between the President, the state governor and the institutional security agencies, including, particularly the Council of States, the National Security Council and the National Defence Council are expected to be going on. By the time the discussion to involve the Armed Forces is taken by the President, it must be obvious that the crisis situation has gone beyond the scope of the civil police and this must be clearly demonstrated by the level of breakdown of law and order. Even though only the President has the power to commit troops, it is expected that he would have consulted properly with the appropriate agencies and received request not only from the State Police Command but also the executive governor of the affected state that the situation has gone beyond the capability of the state authorities. If on the other hand, the state authorities are unwilling to make a request for Federal involvement for political reasons, it will be proper for the President to involve the military provided that there is actual breakdown of law and order.
It is the writer's view, however, that the involvement of troops should be preceded by a proclamation of a state of emergency which means that the National Assembly, being representatives of the people, must be involved if the Armed Forces is to be properly called in for the restoration of law and order through the instrumentality of the military.
ISSUES THAT MAY ARISE FROM MILITARY OPERATIONS IN AID
TO CIVIL AUTHORITY
It is a matter of common knowledge that whenever military forces are employed in internal security role, the acts of individual military personnel could be subject of civil and/or criminal proceedings. Military personnel remain subject to the military law as well as the general law of the land. In a criminal prosecution, however, the civil courts do not ordinarily convict a military subordinate for acts done in good faith in obedience to orders from superior military authorities. However, for obedience to superior's orders to avail, the order obeyed must not be manifestly illegal. Similarly, the use of necessary force to accomplish a military mission does not make an otherwise lawful act by military personnel illegal. Reckless or malicious use of force, however, may subject military personnel to civil or criminal liability or both. Other issues that may arise after the involvement of troops in law enforcement operations include the following among others: a. Justification of authority for callout of troops b. The defence of obedience to superior order c. Self defence d. Evidence. e. Use of minimum force
Conclusion Constitutional and legal basis of military involvement in law and order and public safety have changed since the promulgation of the 1979 Constitution. The legislature has uptil now not enacted any law to regulate the powers of the President in the use of the Armed Forces for civil disturbances. Consequently, the Armed Forces is left without any articulate policy in its responsibility in this regard. The constitution provides the basic frame work for military intervention in restoring law and order and measures for curbing insurrection. Without any further legislation or pronouncements on the issue by the courts, there is bound to be doubt in the minds of Nigerians as to the actual meaning of some of the constitutional provisions relating to this important subject of military role in terms of sustaining law and order and public safety. In the circumstance, it will be inevitable to look outside especially to countries practising our type of government, at least as persuasive authorities.
Therefore going by every available practice and procedure in the USA, one can say that the involvement of the Armed Forces in civil disturbances must be limited to the last resort and that the authority of the President, coming as it were, through the appropriate military channel, must be a prerequisite for involvement of troops in this type of role. Similarly, any military action within this contest, such as the setting up of the joint operations headquarters, loaning of military equipment or stores to the Police or involvement of troops for duties other than military routine duties, must be seen as part and parcel of suppressing insurrection and acting in aid of civil authority which must not be embarked upon unless authorised by law and on the express instruction of a person no less than the President. Military personnel involved in law and order and public safety operations are basically acting in aid of the civil authorities. During this operation, military personnel can incur civil and criminal liabilities and therefore all military operators must be constantly aware of their legal limits. Military operators must therefore be able to justify any action of theirs at any time during the operation. As long as military personnel act within the law, they should not be unduly worried about the degree or quantum of the force used so long as such force is reasonable, commensurate and justifiable in the circumstance. In this regard, it should be stated that it will be safe to explain the concept of minimum force in terms of what is justifiable and reasonable to accomplish the mission.
The duty of maintaining law and order within the country is primarily that of the civil authorities and the instrument available for guaranteeing law and order is the Nigeria Police Forceand other civil security agencies. The state of actual breakdown of law and order, analogous to "domestic war", must remain the justifiable basis for the involvement of the armed forces. Therefore the Nigeria Police Force should be encouraged to organise, equip and train in such a way as to be able to cope with their basic and routine responsibility of maintaining law and order throughout the Federal Republic of Nigeria . Any argument aimed at early deployment of troops other than making a case for military commanders, take measures for safeguarding life should be seen as begging the issue tantamount to a negation of the tenets of the constitution. Discipline is the bedrock of the military profession. Therefore, the need for obedience to superior's orders cannot be over- emphasised. In snternal security, it is important that all operators must operate within clear guidelines. Junior personnel must ensure that their actions, especially those likely to result in causality to human lives, are backed by appropriate orders. The defence of obedience to superior orders can only avail when the order obeyed is not manifestly wrong or illegal. Our capacity to respond to emergencies in terms of rescue and relief is notoriously inefficient.
Therefore, it is a matter of utmost importance that a
national emergency relief agency be set up with a view to improving the
nation's ability to intervene in terms of accidents and natural disasters.
Since local and state governments are closer to the grassroots, and in
view of the importance of security in our national life, it seems obvious
that the absence of security committees at these levels must pose a problem
to the working of our presidential system and subsequently to our nascent
The National Assembly should enact a law to govern the employment of the Armed Forces in dealing with civil disturbance, taking into consideration the need for the following areas to be expressly authorised by law: action by military command for protection of lives and property within their locations; loan of military equipment to civil authorities including the police where desirable; use of the military in rescue and relief operations in times of accidents and natural disasters. In conjunction with other appropriate authorities, the Defence Headquarters should evolve a new policy/doctrine/procedure for military involvement in Law & Order and Public Order Role for effective dissemination down to unit level. The Nigeria Police should be encouraged to train and equip themselves to the level demanded of their role, as the agency primarily responsible for maintenance of law and order and public safety in the Federation. Avenues for joint training between the Nigeria Police, the State Security Services and the Armed Forces should be created and resources for such joint training provided for on regular basis to the appropriate training institutions.
The Armed Forces should not be involved in riot control or crowd dispersal, being routine Police duties, until the disorder assumes the level of "domestic war" (rebellion/insurrection) clearly beyond the capability of the police. Those in policy and decision making positions in government should note clearly and always and be guided by the fact that military intervention can never provide family or lasting solutions to civil disorder; rather, causes of civil unrest, be they political, social, religious, should be identified and honestly tackled from the roots. The colonial mentality of resorting to military forces for the suppression of the genuine aspirations of the people must be jettisoned on the realisation that governments are the creation of the people in whom sovereignty resides and so the military should not be turned into a weapon for the suppression of the genuine wish of the people. Constitutional amendment for the establishment of security committees at local and state government levels is strongly advocated.
* This is an excerpted version of Aid to Civil Authority: The Role of the Military, a paper delivered by Brig-Gen. Don Idada Ikponmwen (rtd). Psc FSS MSS DSM MPOA LLB (Hons) BLL fwe mni. Principal Partner, D.O.I. Ikponmwen & Co. Legal Practitioners, at the National War College, 7 February, 2000.
Publication date: February 28, 2000 (Copyright 2000 The News.) Distributed
via Africa News Online byAfrica News Service.