THE CONSTITUTIONALITY OF NIGERIA’S MILITARY DEPLOYMENT TO THE GAMBIA

 Source: Naijamind.com

In Nigeria, the president is the commander in chief of the armed forces (GCFR), as provided by S. 130 of the Constitution of the Federal Republic of Nigeria, 1999 CAP. C23 L.F.N. 2004, (hereinafter CFRN). This means that though he may be a civilian in Agbada following the principle of democracy, he is a military officer in command. As head of the executive arm of government in Nigeria, Section 5 of the CFRN, vests in him certain powers to be exercised exclusively for the peace and well being of the people of Nigeria. This shows that the president has a duty to protect the sovereignty of Nigeria against any form of external aggression on the offensive and also the use of force on the defensive and offensive where applicable. However this duty is subject to confirmation to the Nigerian Senate pursuant to Subsection 4 of S. 5 which provides as follows:

  
Notwithstanding the foregoing provisions of this section:-

(a) 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; and

(b) Except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside

Nigeria.

The first paragraph of the subsection deals with the issue of the declaration of war between the Federation and any other country. According to the wordings of the constitution, such declaration is to be done with a resolution by the National Assembly. Paragraph b, on the other hand states to the effect that a prior approval of the senate is needed before any member of the armed forces of Nigeria is deployed outside Nigeria. The provision of the Law is crystal clear on this case with respect to the limitation of the power of the president to declare war or to deploy the Nigerian Military. However, an exception lies in the wordings of Section 5(5) which states as follows:

Notwithstanding the provisions of subsection (4) of this section, 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. (Emphasis mine)

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 14 days.

The above stated provision is to the effect that the president can deploy the Nigerian Military outside Nigeria without the approval of the Senate in so far as there is due consultation with the National Defence Council. However, this can only be, when there is a threat to Nigerian national security. This deals with a matter of urgency, stricto sensu, as stated above ‘if he is satisfied that the national security is under imminent threat or danger’

Following the refusal of president Jammeh to step down for Barrow, the newly elected president of Gambia, Nigeria, under President Buhari and other countries of the Economic Community of West Africa States, such as Senegal and Ghana alongside other forces have deployed soldiers to Gambia to forcefully remove Jammeh. The deployment of the Nigerian Army was without senate’s approval contrary to Section 5 of the Constitution. President Buhari can never be excused by the exception in Section 5 because the crisis in the Gambia does not in any way affect the national Security of Nigeria.

The Power of the parliament in determining the declaration of war is more than important as it checks and balances the power of the executives. This has been recognized in most countries of the world. Similar matter was brought before the US Court in the US case of Crockett et al v. President Ronald w. Reagan, (1982) 558 F. Supp. 893 Civ. A. No. 81-1034. (USDC-DOC) when the US congress sued the President claiming among other things, the Executive failure to allow Congress dispense with its duty to declare war, thus violating Article 1, Section 8, Clause 11 of the Constitution of the US, as implemented by the War Power Resolution. Although President Reagan won in the aforementioned case, the fact remains that the power of the parliament in determining the declaration of war is of outmost importance, though in the case of Nigeria, it is the President that can declare, however, subject to the consultation of the senate as stated above.

The constitution of the Federal Republic of Nigeria is supreme and binding on every person and authority in Nigeria, so is the provision of S. 1(1). Subsection 2 is to the effect that any Law or Act that is inconsistent with the provision of the constitution is null and void to the extent of its inconsistency. This includes even an act of the Nigerian President contrary to the provision of the Constitution. This was affirmed in the case of A.G. Lagos v. A.G. Federation S.C. 70/2004, where an act of the president was declared unconstitutional for violating the provision of the constitution. The Supremacy of the Constitution has been affirmed in plethora of cases such as Inakoju v. Adeleke (2007) 4 NWLR (pt 1025) 423 and Abacha v. Gani Fawehinmi (2000) 4. S.C (pt II) 1.3, etc.

The Act of President Buhari is unconstitutional hence a matter of gross violation.  Although, it has been argued that a careful reading of Paragraph a and b of Subsection 4 of Section 5 shows that such approval can only be sought for when there is an armed conflict between the Federal Republic of Nigeria and another nation. The argument put forward is not correct owing to the fact that the mischief behind the provision is to checkmate the power of the commander in chief with respect to matters of declaration of war, same as the war power resolution of 1973 (50 U.S.C. 1541-1548) of US congress. Thus, where the Nigerian President can deploy the military without the approval of the senate at anytime in so far as it is not an armed conflict between Nigeria and another nation, the essence of the law would seem to be defeated. Although, it can be argued that by virtue of s. 12(1) of CFRN, Nigeria having entered into Treaties such as that of the ECOWAS and the AU that have been signed, ratified and domesticated in Nigeria, Nigeria is under obligation to deploy her Military for the contribution to the peace and security of other member states. It should be brought to the fore that the Constitution does not prohibit the president from deploying in line with the Treaty, only that from the reading of s. 5 (4) (b), the approval of the senate is needed.

On this note, the seven (7) days as provided in the Constitutional exception need not elapse for an approval from the Senate in line with S. 5 of the Constitution being that the deployment of the Nigerian Army was done outside the exception stated in the said section. This is without prejudice to the Big brother rule played by Nigeria to achieve peace in the Gambia.

IN SUMMARY:

1)      With respect to the declaration of war, a resolution of the National Assembly must be reached. That is to say, both the House of the Representative and the Senate must give the resolution in a joint session. S.(5) (4) (a)

2)      Deployment of the Nigeria military outside Nigeria for combat purposes must be with the prior approval of the Senate. In this case, the Joint houses need not give the approval. S. (5) (4) (b)

3)      In a matter of urgency (Imminent treat) where the approval may not be quickly obtained, the president may deploy the military outside Nigeria, in so far as the National security of Nigeria is at stake subject however to a proposed approval within 7 days of the deployment, which may be approved or refused within 14 days. S. 5 (5) (5).

4)      With respect to Paragraph 3, it is the National Security of the Gambia that is threatened and not Nigeria.

5)      Therefore the act of the President is unconstitutional. S. 1 (1).



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                                                                                                                         Ebi Robert