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Constitutional democracy and use of organised coercive force at the disposal of the State

By Ben Nwabueze
07 July 2015   |   1:40 am
Among the fundamental concerns of constitutional democracy is the protection, under a constitution as supreme, overriding law of the land, of the individual, his rights and freedoms, from the use of organized coercive force at the disposal of the state.

Nigeria’s democracyAmong the fundamental concerns of constitutional democracy is the protection, under a constitution as supreme, overriding law of the land, of the individual, his rights and freedoms, from the use of organized coercive force at the disposal of the state.

It may be said that the liberty or freedom of the individual from physical coercion by force or violence, or, worse still, by armed force, is as fundamental to constitutional democracy, and needs as much protection by the constitution, as his right to vote in an election for the choice of persons to govern the affairs of the community, which is the thing primarily focused on by the generality of Nigerians as what democracy is all about, that being what they readily perceive and appreciate.

But democracy has a wider meaning that goes together with liberty; neither can exist in complete form without the other. Aristotle, in his Politics, maintains, quite rightly, that “a government which centres all power in the votes of the people cannot properly speaking be a democracy.” Constitutional democracy combines them both.

The state is an organisation of power and force. In other words, the state is characterised by power and physical force. Force, which is the central attribute of the state, and without which it cannot exist – “states exist or not according as they have the force to impose their commands” (see D’Entreaves, The Notion of the State) – is not just brutish, unregulated and uncontrolled force but rather “force displayed in a regular and uniform manner” in accordance with law that regulates, conditions, controls and therefore limits it. In more succinct language, the state denotes power and force exercised “in the name of the law”; it connotes a legal order, a body of laws that regulates, conditions, controls and limits the exercise of power and force within a given community.

As an organised force, the force at the disposal of the state is an awesomely mighty force, a leviathan, a huge monster, in the apt description of it made familiar to us by Thomas Hobbes in his book, Leviathan (1651), edited by Michael Oakshott (1960) – a force so mighty and awesome the individual cannot resist it, and which he will only defy at his peril.

The force is all the more irresistible because it is in the exclusive monopoly of the state. Thus, by section 227 of the Constitution, as reinforced by provisions in the Criminal Code or Penal Code, “no association shall retain, organise, train or equip any person or group of persons for the purpose of enabling them to be employed for the use or display of physical force or coercion.”

The nature of the organised coercive force at the disposal of the state is defined, albeit only obliquely, by the reference in section 227 of the Constitution to “physical force or coercion”. In more explicit words, the New Webster’s Dictionary of the English Language defines it as “physical coercion or violence,” and enforce as “to force compliance with, as of laws; to compel or impose upon by force.” The maintenance and enforcement of law and order by the state involves, therefore, the use, for compelling compliance with the laws and generally for maintaining public order, of the state’s organised instruments of physical coercion or violence.

It is the function of government that exposes the individual and his liberty to the gravest danger of being pounced upon by the organized instruments of physical force or violence at the disposal of the state. Such, then, being the nature of the force at the disposal of the state for the maintenance and enforcement of law and order, and the grave danger which it poses to the individual and his liberty, the Nigerian Constitution would have fallen far short of the requirements and standards of constitutional democracy if it did not contain provisions establishing and defining the state’s primary instruments of force or violence, delimiting their powers, and setting out the conditions and circumstances in which force and violence can be used against the individual by the state.

The Nigerian Constitution, faithful to the requirements of limited government which it is its underlying object to establish for the country, and conscious of the awesomeness of the power of physical coercion by force involved in law-enforcement and maintenance of public order, does enshrine safeguards designed to protect the individual against the use or abuse of the power.

First, it does not leave it to the state to establish or create by ordinary law the main instruments of physical coercion or violence as it likes; rather it establishes them directly by itself in the form of the Nigeria Police Force (NPF) (section 215) and the Nigerian Armed Forces – Army, Navy and Air Force (section 217) – the words force or forces are italicised to emphasise that they have the same meaning as in the definition above.

It defines, either expressly or by implication, their powers and delimits their operational use, with the NPF as the main civil instrument of physical coercion or violence. It prohibits the establishment of any other police force for the country or any part thereof (section 214(1)) without prejudice, however, to the formation of branches of the NPF as may be authorised by law “for the protection of harbours, waterways, railways and airfields”; section 214(2)(c).

Second, it vests the command (i.e. the use and operational control) of the Police Force in a professional, non-partisan policeman (section 215(2)) by the designation of Inspector-General of Police (IGP) whose office it directly establishes.

The implication of vesting the command of the Police Force in a professional, non-partisan policeman, and not in the President to whom the power should normally belong as part of the executive power vested in him by section 5(1), is that he (the President) is not part of the command structure of the police force; he is not its commander-in-chief as he is of the armed forces (section 130(2) provides that “the President shall be…..the Commander-in-chief of the Armed Forces of the Federation”); he cannot therefore lawfully control or direct its operational use except to the extent provided in section 215(3) & (4) of the Constitution. The provisions of the two subsections are significant.

They qualify the IGP’s command by authorizing the President (or State Governor) to give direction with respect to the maintenance and securing of public safety and public order.

The provision of subsection 3 needs to be set out in its exact terms because of its important bearing on the issue of control of the operational use of the police force; (subsection (4) is in similar terms): “(3) The President or such other Minister of the Government of the Federation as he may authorize in that behalf may give to the Inspector-General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary, and the Inspector-General of Police shall comply with those directions or cause them to be complied with” (emphasis supplied).

The extent of the power conferred on the President (or State Governor) by the two subsections is delimited by the fact that the maintenance and securing of public safety and public order, wide as it is because it includes the security of the state and its government, does not embrace all police functions, like the enforcement of laws relating to common crimes committed by single individuals which have no direct or proximate bearing on public safety and public order; the word “public” is in bold letters to emphasise that it refers to the state, its government and the people as a collectivity or a considerable part of them.

A direction with respect to the use of the police force for a purpose other than the maintenance and securing of public safety and public order, like its use to coerce the individual by force in the pursuit of the lawful activities of his life, as in a police state, is outside the scope of the power, and is not a “lawful” direction within the meaning of that word in the subsection. The present situation where the President directs the use of the police force in all manner of cases, as if he is its commander-in-chief, is a perversion of this safeguard.

It is, indeed, common knowledge that the command of the Police Force vested in the IGP by section 215(2) is routinely encroached upon, or rather usurped, by successive civilian Presidents since 1999. The IGP is hamstrung to resist the encroachment because, unless and until the courts declare it null and void, section 9(4) & (5) of the Police Act cap. P19, Laws of the Federation, 2004 edn, gives legal backing to the encroachment.

The two subsections provide: “(4) The President shall be charged with operational control of the Force; (5) The Inspector-General shall be charged with the command of the Force subject to the directive of the President”.

The above provisions are patently and manifestly inconsistent with the provision of section 215(2) & (3) of the Constitution noted above.

The two subsections of the Constitution do not make the IGP’s command “subject to the directive of the President,” as regards the operational control of the Police Force. As earlier noted, the Constitution does not provide in any of its sections that the President shall be the commander-in-chief of the NPF.

The President’s power to give directions to the IGP is conferred by section 215(3) and is explicitly limited to the giving of “lawful directions with respect to the maintenance and securing of public safety and public order.” Being inconsistent with the Constitution, the provisions of section 9(4) & (5) of the Police Act are unconstitutional, null and void.

The provisions of section 5 of the Police Act (establishing the offices of IGP and Commissioner of Police for each State), section 9(4) & (5) (establishing the Nigeria Police Council and prescribing its functions) and section 10 (empowering the President and the Governor of a State to give directions respectively to the IGP and the State Commissioner of Police with respect to the maintaining and securing of public safety and public order – significantly the word “lawful” is omitted from the provision – are also unconstitutional, null and void for duplicating the provisions of section 215(1), (3) & (4) and paragraphs 27 & 28 of the

Third Schedule to the Constitution. The legal consequences of such duplication are laid down definitively by the Supreme Court in its decision in Att-Gen of Abia State v. Att-Gen of the Federation (2002) 6 NWLR (Pt 763) 264 at page 369, per Kutigi JSC delivering the judgment of the Court. “Where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision then the provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative.

The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provisions will be treated as unconstitutional and therefore null and void.” (emphasis supplied). Re-affirmed by the Court in INEC & Anor v. Balarabe Musa & Ors [2003] 3 NWLR (Pt 806) 72 at page 158, per Ayoola JSC for the Court.

The decision of the Supreme Court in these two cases has a good rationale to support it. An inconsistency arises from the different sources of authority for the two provisions, one source of authority, namely the Constitution, being superior to the other i.e. an ordinary law made by the legislature; for this reason, a statutory provision, deriving authority from an inferior source, simply cannot exist and operate together with the same or similar provision in the Constitution which it duplicates.

It makes hardly any sense that something established or existing by the Constitution should be established yet again by an ordinary law which is inferior to the Constitution. The basis of its existence, its character and authority is certainly not changed from the Constitution to the ordinary law, nor will the repeal of the ordinary law terminate its existence and powers under the Constitution.

The above-mentioned provisions of the Police Act are a product of the era of military absolutism. It hardly speaks well of the elected civilian National Assembly that took over legislative power from the military since 1999 that the provisions have been allowed to remain in our statute books, to undermine, if not to subvert, the system of limited government established for the country by the Constitution.

The powers of the NPF with respect to the enforcement of the law derive partly from the provisions of section 215(3) & (4) noted above, partly by implication from other provisions of the Constitution, particularly section 214(1) establishing it as a coercive force, a police force, and partly from statutory provisions enacted pursuant to section 214(2)(b) and item 45 of the Exclusive Legislative List.

Third, it (i.e. the Constitution) limits the functions of the armed forces to – “(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.” : section 217(2) Under the Constitution, therefore, the armed forces can be called in to “aid the civil authorities” only in the event of the occurrence of an “insurrection” making it necessary to call in armed soldiers to help “restore order”.

The occurrence of an insurrection is thus the decisive condition warranting the invocation of section 217(2)(c). The New Webster’s Dictionary of the English Language defines “insurrection” as “an open revolt against established authority; an incipient rebellion.”

It would be doing violence to language to describe the street processions protesting the removal of petroleum subsidy on 9 January, 2013 as being, by any stretch of imagination, “an incipient rebellion” or “open revolt against established authority.” What happened in the streets on the 9th of January, 2013 and the days following was not an incipient rebellion or open revolt against established authority. The protesters were certainly not rebels; they were only exercising the democratic right and freedom guaranteed to them by the Constitution.

By protecting the people against unwarranted coercion by the use of the organised armed force in the exclusive monopoly of the State in the name of the maintenance and enforcement of law and order except in the event of an insurrection, section 217(2)(c) is one of the great pillars and guarantees of democratic freedom under the Constitution.

The word “restore” or “restoring” in section 217(2)(c) has great significance as implying or indicating that order has already broken down by reason of the occurrence of insurrection, as defined above. Had the Constitution omitted or not included the definitive limitation in section 217(2)(c), such omission or non-inclusion would have rendered largely nugatory the democratic rights and freedoms guaranteed to the people of Nigeria by sections 33 – 46 of the Constitution.

It is true that the armed forces may also be used to perform “such other functions as may be prescribed by an Act of the National Assembly” under section 217(2)(d), but such other functions must not be inconsistent with those set out specifically in section 217(2)(a), (b) and (c) of the Constitution. Section 217(2)(c) limits the extent the armed forces can be used for the maintenance and securing of public safety and public order in Nigeria.

Any law made by the National Assembly under section 217(2)(d) which gives the armed forces any functions in relation to the maintenance and securing of public safety and public order is unconstitutional, null and void insofar as such functions go beyond the suppression of insurrection and aiding the civil authorities in its suppression and restoration of order when order has actually broken down or been seriously disturbed by the occurrence of insurrection. Otherwise the whole scheme of protecting the individual and his rights and freedoms from or against the use or abuse of the state’s organised force would, as earlier stated, have been rendered largely nugatory.

The provision is section 8(3) of the Armed Forces Act, cap. A20, Laws of the Federation, 2004 edition, that the “operational use of the Armed Forces includes the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order” is therefore unconstitutional, null and void as it can derive no validity from section 217(2)(d) which is itself inconsistent with section 217(2)(c) i.e. insofar as section 8(3) of the Armed Forces Act actually authorizes the use of the armed forces for any public safety and public order purposes other than the suppression of insurrection and restoration of order. It is of course for the courts, in the exercise of their interpretative jurisdiction, to say whether or not section 217(2)(d) is subject to the definitive limitation in section 217(2)(c).

But a provision so potentially subversive of our democratic freedoms as that in section 217(2)(d) is, cannot be interpreted otherwise than as suggested above.

Likewise, the provision in section 218(1) that “the powers of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the Armed Forces” must be read as subject to, and as limited by, the provision of section 217(2)(c) and other relevant provisions of the Constitution.

The Constitution cannot have intended or contemplated that the President’s power to “determine the operational use of the armed forces” shall be at-large, i.e. without limitations. It cannot have been the intention that the power should enable him to use the armed forces against the individual, to use them to trample on the individual’s rights and freedoms, as he pleases, as if the government was a regime of absolute, unlimited powers, instead of one limited by an elaborate scheme of rights and freedoms guaranteed to the individual in chapter IV of our Constitution. The seminal decision of the U.S. Supreme Court in Youngstown Sheet and Tube Co v. Sawyer, 343 U.S. 579 is decisive upon the issue.

A state of emergency was declared in the country by the President following a war in Korea in which the United States was involved. In response to a strike call in the steel industry during the emergency, the President, acting solely on his independent authority under the U.S. Constitution to preserve the security and safety of the nation, ordered the steel factories to be seized and operated by government agents in order to avert a national catastrophe which, owing to the strike, might ensue from a stoppage of steel production during the war, steel being an essential material for the manufacture of ammunition.

The President had tried, among other sources, to derive legal authority for his action from the provision of the Constitution designating him as the commander-in-chief of the armed forces.

The argument based on the President’s power as commander-in-chief of the armed forces, and all the other grounds relied upon by the President, were rejected by the Court, and the seizure was declared unconstitutional and void.

As the Court held in memorable words: “We cannot with faithfulness to our constitutional system hold that the commander-in-chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labour dispute from stopping production……The Constitution did not contemplate that the title, Commander-in-Chief of the Army and Navy, will constitute him also commander-in-chief of the country, its industries and its inhabitants.” ibid at p. 587 and pp. 642 – 4 (emphasis supplied).

As Commander-in-Chief of the Armed Forces, the President of Nigeria cannot even deploy any member of the armed forces “on combat duty outside Nigeria” “except with the prior approval of the Senate”: Section 5(4(b).

The deployment of armed soldiers in the streets of the major cities of the country or at check points on the high roads as well as their deployment at polling centres during elections, which has indeed become a routine feature of life in Nigeria, is thus a monstrous invasion of our democratic freedoms, and is no less condemnable now than under the constitutional dictatorship of former President Olusegun Obasanjo.

It is, in one case as in the other, careless of the lessons of history, and recent history for that matter. It ignores or manifests ignorance of recent events in Romania during the on-slaught of the 1989 – 90 Democratic Revolution that swept across the world where the Romanian President, Ceausescu, ordered armed soldiers to shoot protesters demanding multi-party democracy.

When the soldiers could no longer stand shedding the blood of hundreds of fellow citizens, they refused to continue the shooting. Whereupon the protesting mob, breaking loose, surged into the presidential palace, seized Ceausescu, tied him to a post, and had him shot, leaving his body to rot away as a warning to all who abuse or misuse state power, of the wrath of the Sovereign People in a democracy. The account of this event, as given by Timothy Garton Ash in his book, We the People (1990), has the makings of an epic story.

Professor Sir Karl Popper, in his great book, The Open Society and Its Enemies (1966), echoes this warning eloquently thus: “The working of democracy rests largely upon the understanding that government which attempts to misuse its powers and to establish itself as a tyranny (or which tolerates the establishment of tyranny by anybody else) outlaws itself, and the citizens have not only the right but also a duty to consider the action of such a government as a crime, and its members as a dangerous gang of criminals.”

In this connection, the installation of a new Administration following the presidential election in March 2015 has brought a welcome change in one respect. Military checkpoints on the roads throughout the country have been or are being dismantled as ordered by our new President, Muhammadu Buhari, after a meeting with the service chiefs and the director of military intelligence.

This must be applauded as conforming with the requirements of constitutional democracy. It is no justification for engaging the military outside the permissible limits of the functions assigned to them under the system of limited government established for the country by the Constitution, that the Police Force, to whom the maintenance of order, security and safety belongs under the Constitution, lacks the operational capacity, in terms of personnel, organisational structure, technological equipment and motivation, for effective discharge of its function, especially given the peculiar security challenges facing the country. • Legal luminary Prof. Nwabueze is a former Minister of Education.