Military deployment: Odinkalu got it wrong

A statement credited to the Chairman of National Human Rights Commission, Prof. Chidi Odinkalu, over the recent Court of Appeal decision on the illegality of the deployment of military in the conduct of elections in Nigeria is rather unfortunate even as such statement is capable of eroding public confidence and trust on the Commission which Odinkalu heads.

Speaking with a popular Lagos-based television station, the NHRC boss had queried the rational behind the judgements of the Federal High Court, Sokoto and Court of Appeal that declared the recent involvement of the military in the country's election, especially at the Ekiti state, as a violation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Odinkalu relied on Section 218 of the said Constitution and Geneva Conventions on armed conflicts to lampoon the well considered judgements of the two eminent courts.

Odinkalu grounded his argument on the fact that Nigeria is presently in a state of war and that, therefore, justifies the deployment of troops to provide security during elections. He was of the view that since the International Committee of the Red Cross had designated Nigeria as one of the countries in a state of war in 2013, it is therefore, inexplicable to him, that the soldiers would be allowed to remain in the barracks during elections. The highly respected and outspoken NHRC top brass has even threatened to personally boycott the March 28 and April 11 elections if soldiers were not deployed for the elections.

To me, nothing could be more outlandish than this, especially coming from the personality like Odinkalu. Ironically, Odinkalu's position contrasts with his Commission's main objective which is the preservation and promotion of rule of law in the country. At the very worst, Prof Odinkalu's position on this matter will further encourage the culture of impunity in the corridors of power. The worst thing a lawyer, as a priest in the temple of justice, would do is to either out of omission or commission encourage the public to disregard a subsisting court judgement or order. The law is trite that however wrong or unpleasant a court decision might appear, it MUST be complied with until it is upturned or set aside by a court of higher jurisdiction. Prof Odinkalu, perhaps, failed to put this into cognisance before taking that stand. Or perhaps, he was too soaked in the garb of sentiment to realise this.

Again, Prof Odinkalu overreached himself on the potency of international conventions. It must be elegantly stated that international conventions are mere "soft laws" which are only potent in persuasion. They can never override the laws of a sovereign country as they merely derive their validity from the municipal laws. To accept Odinkalu's thesis is to subject our very own grund norm (Constitution) to the dictates of international conventions and foreign treaty. Section 217 of the 1999 Constitution is abundantly clear on how the power to deploy the military for internal security should be exercised by the president. Such power is subject to an Act of the National Assembly, and this cannot be wished away by mere international sentiments or conventions. Certainly, this must have formed the ratio decidendi of the judgements by their Lordships in these cases.

Clearly, the Red Cross classification, which Prof Odinkalu quoted extensively to support his position, was merely informed by the insurgency in the North East of the country. And if that be the case, Ekiti and Osun states, which witnessed heavy presence of the military during the governoship elections, cannot be said to be in state of war. The intimidation and mass arrest of the opposition leaders in Ekiti state and some other ignoble acts carried out by the military during the said election are illegal, unjustifiable and reprehensible as far as the two courts are concerned. And it must be so accepted.

It is, therefore, submitted the two judgements are sound, well articulated and above all consistence with our extant laws. It should, therefore, be respected by all. Prof Odinkalu should instead encourage the unsatisfied parties to appeal against the decisions at the apex court rather than make a case for the breach or resort to self help. Elections, after all, are not wars. Therefore, the military should be allowed by the powers that be to continue to carry out its fundamental role of safeguarding the territorial integrity of Nigeria. The House of Representatives should also not dissipate energy and precious time on a matter that has already received judicial pronouncements. Compliance to a valid decision of the court are not subject to debate!

Barrister Okoro Gabriel, Ebonyi State.

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Articles by Okoro Gabriel Bryne