Nigerian Court Rulings During Elections As Pollutant Viruses: Why Rulings Barring Military From Polls’ Security Are Dead On Arrival

(Democracy & Rule of Law, Onitsha Nigeria, 22nd February 2015)-

It is the irrefutable position of the leadership of International Society for Civil Liberties & the Rule of Law that court rulings before and during elections in Nigeria in recent times do not always stand the test of time. As a result, many, if not most of court rulings before or during polls particularly those coming from State and Federal High Courts as well as the Court of Appeal are generally seen as pollutant viruses capable of plunging the country's landscape into chaos of uncontrollable proportions. Such rulings are grossly influenced by mercantilist and primordial dispositions at the grand whims and caprices of parochial and politically mercantile interests of interested individuals and socio-political groups. Very worrisome it is that tainted men and women operating in the Hallowed Chambers of Venerable Justice sector in Nigeria always canonize and institutionalize such infamy to the painful point of making them part of Nigeria's case laws.

When a court judgment strives to hand down a pronouncement ousting a provision or provisions of the Constitution rather than modifying or defining it (them), it becomes anarchic if enforced and if un-enforceable, the referenced court ends up making mockery of herself and her pronouncement. Courts must stay away at all times from making pronouncements that are dead on arrival such as those licensing malicious and homicidal citizens to slaughter or maim collective others using polls' outcome excuses. It is a global and spotless maxim that where there is no law there is lawlessness and anarchy and where there is no security there is Hobbesian state of terror leading to life being brutish, cannibalistic, cancerous, short and nasty.

It is also a settled maxim that security and defense of a sovereign territory particularly the protection of lives and properties during turbulent times like election times; is a fundamental exception to judicial sledge-hammer. This means that courts must be extremely careful when handling matters relating to public security and safety, not minding the smartness, coinage and propaganda level of interested parties including lawyers, designed to mislead and misinform the courts. Admitted that courts are created to receive and determine private, corporate and public interest matters no matter how stupid or idiotic some, many, most or all of them may appear; it is the fundamental duty of the same courts while dispensing the matters so brought, to first of all embark on data mining in addition to having the overall interest of the entire public at heart.

When such data are collected, the courts must always purify them so as to separate facts from fictions, after which facts are further subdivided to find lawful and unlawful facts leading to meticulous application of lawful facts to the existing laws resulting in judgment called ratio decidendi. On the other hand, the unlawful or outlawed facts can be transformed into orbita dictum/dicta. Courts may in the course of delivery of their hallowed judgments entertain their audience with fictions or unlawful facts/outlawed facts, provided they do not form part of their ratio decidendi or judgment. The courts' decisions based on lawful facts are commonly called ratio decidendi while outlawed facts or facts outside the matter are called orbita dictum/dicta. The courts while delivering judgments must at all times be at high point of mental, physical and intellectual alertness so as not to hand down orbita dicta in place of ratio decidendi.

It is on account of the foregoing that we condemn unreservedly the recent court pronouncements in Sokoto and Ekiti States barring the Nigerian Military from involving itself in the organization and conduct of the country's turbulent elections particularly the rescheduled 2015 general elections. Having perused and ransacked the 320 sections of the Constitution of the Federal Republic of Nigeria 1999 with its last amendment, we could not come across in the same Constitution where a section frowns at the involvement of the military in the securitization of the elections in Nigeria whether staggered elections, by-elections, run-off or general elections. The courts, in its entirety, acted ultra vires or outside their constitutional mandates. The Constitution, which the courts are fundamentally bound to protect at all times, is gravely injured by the referenced courts' pronouncements. This is because if the pronouncements are enforced on elections' dates and the Nigerian military is withdrawn and cocooned in the Barracks, giving killer and malicious citizens with their political affiliates a field day to unleash terror on collective others; the country will go up in flames in reprisal killings. If this becomes the case; then the Constitution of the Federal Republic of Nigeria is murdered.

The referenced courts' pronouncements also grossly undermine the constitutional duties of Mr. President as the country's Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria. For the avoidance of doubt, the Armed Forces (Army, Navy, Air Force, SSS, NIA, etc) are created by Section 217 of the Constitution and they have various regulatory and empowerment Acts passed or deemed to have been passed by the National Assembly of Nigeria ( Section 315 of the Constitution).

The Armed Forces under referenced are constitutionally empowered with the following duties: “defending Nigeria from external aggression”(S. 217 (2) (a), “maintaining Nigeria's territorial integrity and securing its borders from violation on land, air or sea” (S. 217(2)(b), suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, subject to such conditions as may be prescribed by an Act of the National Assembly” (S. 217 (2) (c); and “performing such other functions as may be prescribed by an Act of the National Assembly” (S. 217(2) (d). Section 218 of the same Constitution clearly provides: “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 of the Federation”.

Supplementary Section 26, under Part 1 of the Third Schedule to the referenced Constitution provides: “The National Security Council (which includes the Chief of Defense Staff as the head of the armed forces and the National Security Adviser) shall have power to advise the President on matters relating to public security including matters relating to any organization or agency established by law for ensuring the security of the Federation”. In Supplementary Section 17 of the referenced Part 1 of the Third Schedule, the Constitution provides that the National Defense Council shall have power to advise the President on matters relating to the defense of the Sovereignty and territorial integrity of Nigeria”. In Section 8 (3) of the Armed Forces Act of the Federation under its Part 3, the operational use of the armed forces by the President is defined to include “the operational use of the armed forces in Nigeria for the purpose of maintaining and securing public safety and public order”.

That is to say that the armed forces of the country are constitutionally conferred with defense and security roles in Nigeria internally and externally. In all, the Armed Forces of Nigeria have never been involved in the duty of conducting elections in Nigeria's polling units or electoral wards. They have never been sighted in any polling unit except where public safety is under threat or breached. They have never been part of INEC's ad hoc staff or collection, collation, declaration and announcement of results of elections. It is also a truism that Nigeria is in a state of intra State war and gross security threats requiring military securitization watchdog round the clock. The roles played by the military in Nigeria during polls are purely in defense and security of Nigeria's internal and external protections.

In all these, it is despicable and condemnable to obtain “compromised and tainted court rulings” to oust the military from performing its constitutional duties and responsibilities including safeguarding the lives and properties of individual and collective Nigerians before and during polls. We, therefore, call on Mr. President as the Commander-in-Chief of the Armed Forces of Nigeria to ignore such court rulings. Efforts must also be made by relevant parties including the office of the Attorney General and Minister for Justice of the Federation to oust and erase that sort of bad judgments from the country's hallowed case laws by applying for their immediate ousting and erasure at the superior courts including the Supreme Court of Nigeria. Rule of law is under severe threats when courts de-constitutionalise fundamental provisions of the Constitution.

Signed:
For: International Society for Civil Liberties & the Rule of Law

Emeka Umeagbalasi, B.Sc. (Hons.) Criminology & Security Studies

Board Chairman, International Society for Civil Liberties & the Rule of Law

+2348174090052(office)