The federal government's decision to outsource law enforcement, which is the primary responsibility of the police, to the Nigerian Army is one that comes with dire consequences.
There is hardly any state in the country where soldiers are not on duty trying to maintain the peace. Today, soldiers are now found along major inter state roads checking vehicles, a duty that is the responsibility of the police world over.
In deploying soldiers, the authority often rely on the fact that the police are ill-equipped, indiscipline and irredeemably corrupt. Rather than correct the rots in the police force and strengthen it, those running the country have found it convenient to turn to the armed forces.
Soldiers generally have problems respecting human rights. They hate the concept of the rule of law. They have problems understanding the fact that they are to protect civilians by their calling. Instead of protecting the society, soldiers have ended up mal-treating the same civilians they were sent out to protect.
Those who ply Lagos-Abuja road frequently would have witnessed the hardship passengers in commercial buses, as well as drivers are subjected to on daily basis. One passenger who happened to be receiving call when the soldiers stopped the vehicle in which he was travelling was asked to come down from the vehicle, made to do frog-jump. He was throughly humiliated. He was released after the driver and other passengers pleaded on his behalf. His offence: daring to answer call when the soldiers stopped the vehicle in which he was travelling.
Anyone who happens to wear any dress that bears some resemblance with army uniform and is unlucky to pass by a check point where soldiers are on duty will be lucky to escape with his life. In reality, the soldiers who are supposed to provide security for civilians ended up molesting the same civilians they are being paid to protect. They sometimes beat helpless old men. Worse still, most of the atrocities committed by soldiers are not reported. Few that get to the authorities are swept under the carpet.
On March 18, 2014, some soldiers, detailed to guide Dangote Cement factory in Gboko, a private company in Benue State allegedly killed seven young boys over a minor disagreement.
The youths were killed when the soldiers shot indiscriminately at unarmed members of the community, who were protesting the shooting of one of them -Terhile Jirbo - by a soldier. Jirbo was shot in his mouth when he refused to eat his excrement, as allegedly directed by one of the soldiers stationed at the Gboko Plant of Dangote Cement Plc. Jirbo went to defecate in a bush around the company and one of the soldiers demanded he remove his faeces with the use of his mouth. It was the inability of the young man to comply with this obviously unlawful order that infuriated the soldier, who shot him in the mouth with an AK 47 assault rifle. Dangote eventually compensated the relatives of the victims. End of story. Nobody was punished.
Professor Jibrin Ibrahim captures the security crisis Nigerians are daily subjected to correctly when he said:
"The Nigerian citizen has long endured a culture of intimidation by the country's security forces. Law enforcement agents have, since colonial times, developed a culture of reckless disregard for the rights of the people. The legal framework has not helped matters, given our colonial heritage of laws against vagrancy, illegal assembly, wandering, and illegal procession. The state is constructed as an edifice against citizens who are assumed to have a natural tendency to break laws and must therefore be controlled, patrolled and constantly surveyed. Not surprisingly, citizens learn to fear and avoid law enforcement agents. The ordinary Nigerian sees security agents as potential violators, rather than providers, of security. The reality of state security for ordinary people then becomes the perception of insecurity."
As it is with Nigerians, we often ignore the real problems only to concentrate on symptoms. Following last week clashes between the soldiers and members of the Indigenous People of Biafra in the South-east, many have engaged in the argument whether the President Muhammadu Buhari had the powers in the circumstances to deploy soldiers in the south-east. As usual, sentiment and emotion often becloud our judgment.
For instance, the Legal Defence and Assistance Project (LEDAP) while reacting to the clash between soldiers and IPOB said it "condemns the deployment of soldiers to the streets of south-eastern states of Nigeria by the Federal Government. LEDAP states that military is not set up to conduct civilian policing duties but rather, only to interfere where there is war against Nigeria." But that position can not be correct. While it is desirable that we enhance the capacity of the police to enable them maintain law and order, the argument that the president does not have the power to deploy the military in the south-east in the circumstance appears not to be supported by law.
The constitution which is the almighty law from where other laws derive their validity as any law which contradicts the constitution is deemed null and void is very clear.
The section to start with is section 217 (2) of the Constitution. For the avoidance of doubt Section 217(2) of the constitution provides: "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; and
(d) performing such other functions as may be prescribed by an Act of the National Assembly.
Pursuant to Section 217 (2) (d) of the constitution the Armed Forces Act came into being. Now section 8 of the Act is the relevant section."
Section 8 of the Armed Forces Act titled 'Operational use of the Armed Forces' which is an Act of the National Assembly provides:
(1) The President shall determine the operational use of the Armed Forces, but may, under general or special directives, delegate his responsibility for the day-to-day operational use-
(a) of the Armed Forces, to the Chief of Defence Staff;
(b) of the Army, to the Chief of Army Staff;
(c) of the Navy, to the Chief of Naval Staff; and
(d) of the Air Force, to the Chief of Air Staff.
(2) It shall be the duty of the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, as the case may be, to comply with any directive given to them by the President under subsection (1) of this section.
(3) In this section, '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."
When the Act is read in conjunction with the constitution, there is no doubt that both the constitution and the National Assembly have empowered the president to deploy the military in any part of Nigeria.
The deployment is not restricted to defending the country against external aggression, it can be for internal security.
As it is, this is not about the power of the president to deploy the military, but whether it was necessary to do so in the circumstances Yes, there is a need to check the activities of Nnamdi Kanu and IPOB but this must be done within the concept of rule of law. Unleashing soldiers on him is an overkill. Suffice to say that Kanu has also been carried on as if he is not under the law. But he can be dealt with and should be dealt with within the civil process as against military onslaught. It is naive for anyone to think that he should not be arrested and charged to court for infraction of the law.
It is instructive that the federal government has charged Kanu to court. That is the proper step to take in a democracy. He should be allowed to have his days in court for the judiciary to determine if he has violated any law and to punish him in accordance with the law. But by unleashing soldiers on him, the federal government appeared to be saying that it does not believe in rule of law. Resorting to self-help does not allow democracy to thrive.
The National Human Rights Commission (NHRC) has called on the military to desist from any acts capable of causing tension, public disturbance, fear and sense of insecurity in the country.
One of the consequences of asking soldiers to handle law enforcement duties is that they now see themselves as a group of people who are above the law. Lack of accountability ensures that no one is punished for atrocities committed by them. This is the case with the December 12-14, 2015 attack on members of the Islamic Movement of Nigeria where hundreds of followers of the groups were killed. Nobody has been held responsible as at press time. It will also be an illusion to expect that some soldiers will be punished for what happened last week.
It is interesting to read the statement from the National Human Rights Commission asking the military to observe their rules of engagement and respect human rights when dealing with civilians.
It also called on the military to desist from any acts capable of causing tension, public disturbance, fear and sense of insecurity in the country.
However, when the military failed to observe their rules of engagement in the clash with the IMN what did the commission do? It issued an dubious report that not only rationalised the onslaught against the helpless civilians, but justified it.