Soldiers and legal competence of policing in democracy
Soldiers are trained to fight. By such training, they are always in combat mood in their dispositions. The military is one of the most important institutions in any country, created for the major purpose of defending the territorial integrity of such a nation.
But the Police on the other hand have the mandate of maintaining internal security, law and order, among others. Both institutions play different roles in a democracy. However, there are times that soldiers are invited to act in aid of civil authorities, play the role of the Police or complement the activities of the Police in discharging its duties of maintaining internal law and order.
So, what is the legal competence of soldiers policing the civil populace? Under what circumstances should the military mount checkpoints, suppress insurrection, conduct house-to-house searches, maintain neighbourhood patrols or confront mass protest as they sometimes do in Nigeria?
For instance, it was the attempt by suspected soldiers to disperse peaceful EndSARS protesters on October 20, 2020 that resulted in the alleged killings in Lekki, Lagos and the backlash that was to follow nationwide. Also, the military is in the eye of the storm in Rivers State for conducting house-to-house search, while looking for members of the proscribed Independent People of Biafra (IPOB) in Oyigbo community, on the alleged orders of the Governor Nyesom Wike. Reports claim the exercise has resulted in many casualties, mostly youths of the area.
Finding answers to the legality of using soldiers to conduct internal security operations, the Director, Prisoners’ Rehabilitation and Welfare Action (PRAWA), Dr. Uju Agomuo referred to Section 217, subsection (2) of the 1999 Constitution of Nigeria (as amended).
The section says: “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. d. Performance of such other functions as may be prescribed by an Act of the National Assembly.”
So, sub section 2 (c) provides that the military can only be called upon by the President to suppress insurrection and act in aid of civil authorities to restore order, where there is breakdown of law and order, meaning that only the president can authorize the deployment of the military for police duties.
On the other hand, to understand the Constitutional role of the Police, Section 214(1) of the CFRN 1999 and section 4 of the Police Act state clearly the mandate of the Nigeria Police Force. “These relate to prevention and detection of crime, apprehension, maintenance of law and order, protection of life and property, and enforcement of all laws and regulations with which they are directly charged, and perform such military duties within or outside Nigeria as may be required of them,” Dr. Agomuo explained.
Her words: “As can be seen with respect to section 217(2)(c), going by the constitutional provision, the military should only act in aid of civil authorities to restore order on the following conditions, namely: When invited to do so by the President, but this must be subject to such conditions as may be prescribed by an Act of the National Assembly. The question therefore is whether the soldiers discharging police duties met these conditions.
“It is important for us to note that the core mandate of the military is in relation to dealing with external aggressions, maintaining territorial integrity and securing by land, sea, and air, the border of Nigeria from violation and not maintenance of internal security, as is the case of the Police.”
However, where the two conditions stated under section 217(2)(c) apply, Dr. Agomuo explained that the military can be said to have the legal competence to do police works. According to her, where these two requirements do not exist, their actions cannot be said not to have complied with the constitutional provisions.
“It is also important to note that having the military carry out the role of policing has also other implications. This includes the psychological feeling of the citizens. Many citizens will feel tensed and the feeling of being in a state of war or war-like. This also raises issues about the level of force that each of these agencies are trained to apply given the nature of their respective core mandate.
“Civilian oversights of security agencies are one of the core elements of a democratic nation. There is need to utilize the military more on their core mandate especially given the challenges currently faced in the country in the North East,” she advised.
Human rights activist, Bar Inibehe Effiong believes the use of soldiers for police duties in a democratic government is illegal and unconstitutional. According to him, Section 218 of the Constitution does not give the Armed Forces a limitless role in civil affairs.
“The military ordinarily has no role whatsoever in civilian affairs. Under Section 218 of the 1999 Constitution, the military is only to be called in aid of civil authorities. They are not to be called to take over the functions of civil authorities. If the police is not overwhelmed, there is no basis to invite the military. What is happening under the Muhammadu Buhari regime is that the incumbent president, who is a former military dictator, has diminished our democracy by militarizing civic spaces,” Effiong argued.
His added: “We now have soldiers flogging people on the streets for alleged indecent dressing. I have seen soldiers controlling traffic. Our Armed Forces have been relegated to jack of all trades. It is disgraceful to see soldiers everywhere. This is not a democracy. The law does not approve of the arbitrary deployment of soldiers.”
Also contributing, another rights activist, Bar Joe Nwokedi said military men are not to be seen but only heard in a democratic government. Their major pre-occupation, he pointed out, is maintenance of the territorial integrity of the country and not to be seen usurping the powers of the Police and brutalizing the citizens.
“Anti-riot Police officers and not soldiers manage protests. Bringing in soldiers to deal with issues that are exclusively under the powers of the Police is a great abuse and contravention of the provisions of our constitution. We have to jointly condemn such violations and abuse of powers,” he declared.
Vocal lawyer and elder statesman, Chief Goddy Uwazuruike said a soldier, essentially, has the duty of defending his country from external aggression and internal insurrection. This duty, he explained, is upon the command of the Commander in Chief. “They will also carry out the specific functions assigned by the Commander in chief. This includes attacking another country and embarking on peace keeping operations in foreign countries,” he stated, adding that the key issue about military intervention in police duties borders on the order of the Commander in Chief. Any other person cannot deputize this function of authorizing the deployment of the military, he insisted.
Uwazuruike further explained that the power to order troops to go to another country for combat purposes is not absolute. According to him, the Senate must by law approve it.
In reference to internal security operations, the lawyer said it is another kettle of fish. He explained that a state governor would have to request for the deployment of troops on the grounds that the level of insecurity within the state is beyond the capacity of the police. When such request is made, Uwazuruike said it would be up to the Commander in Chief to accede or not. No governor, he stressed can command the army to carry out any assignment in the country, except the president, adding that it is illegal for soldiers to operate in internal security without the express order of the president.
“I am aware that on Election Day, the Independent National Electoral Commission (INEC), which has absolute power on the mode and manner of elections, requests for the military before they can be deployed. What it means is that military presence during election is illegal unless requested by INEC from the President and the President consents.
“In a democracy, soldiers are incompatible with civil exercise of democratic rights. Military culture is command and obey, while the police culture is civil. Desperate politicians often abuse military culture. As a matter of fact, soldiers as witnesses in court are often seen as meddlesome interlopers or busybodies,” he explained.