As the controversy surrounding Nigeria, and the Economic Community of West African States (ECOWAS)’s deployment of troops to Niger Republic, Senior Advocates of Nigeria (SANs), have joined in adducing reasons why President Bola Tinubu cannot unilaterally take such action to restore democratic rule in the neighbouring country.
They, in separate interviews with Vanguard, argued that President Tinubu must secure the approval of the National Assembly (NASS), for the armed forces of Nigeria to be deployed on a combat duty in Niger Republic.
They however argued that except there is an imminent threat to national security, the 1999 Constitution, as amended, permited the President to deploy soldiers to another country without prior approval of the legislative arm of the government. That was an exception.
In such situation, they stressed that the President, having deployed troops outside the shores of the country, must within seven days, seek approval of the National Assembly, which in turn must take 14 days to either okay or reject the military action.
According to Jacob Usman, SAN: “By Section 5 (4) (a) of the 1999 Constitution, as amended, the President cannot declare a state of war between Nigeria and any other country, except with the approval of both the House of Reps and the Senate, sitting in a joint session.
“What it means is that if there is any threat to Nigeria and the President is of the view that there is a need to declare a state of war between Nigeria and that country, he must seek the approval of the National Assembly, both the Senate and House of Reps in a joint session, not with each of them sitting independently.
“Subsection 4 (b) provides that except with the prior approval of the Senate, the President shall not deploy any of the armed forces of Nigeria outside the country.
“This is where the case of Niger Republic comes in. The President wrote for the approval of the Senate for the armed forces of Nigeria to be deployed on a combat duty out of Nigeria and the Senate, to my understanding rejected the approval
In separate interviews with Vanguard, the learned silks maintained that for the armed forces of Nigeria to be deployed on a combat duty in Niger Republic, President Tinubu, must secure the approval of the National Assembly.
However, the senior lawyers pointed out that the only time the 1999 Constitution, as amended, permits the President to deploy soldiers to another country without prior approval of the legislative arm of the government, is when there is an imminent threat to national security.
In such situation, they stressed that the President, having deployed troops outside the shores of the country, must within seven days, seek approval of the National Assembly, which in turn must take 14 days to either okay or reject the military action.
According to Jacob Usman, SAN: “By Section 5 (4) (a) of the 1999 Constitution, as amended, the President cannot declare a state of war between Nigeria and any other country, except with the approval of both the House of Reps and the Senate, sitting in a joint session.
“What it means is that if there is any threat to Nigeria and the President is of the view that there is a need to declare a state of war between Nigeria and that country, he must seek the approval of the National Assembly, both the Senate and House of Reps in a joint session, not with each of them sitting independently.
“Subsection 4 (b) provides that except with the prior approval of the Senate, the President shall not deploy any of the armed forces of Nigeria outside the country.
“This is where the case of Niger Republic comes in. The President wrote for the approval of the Senate for the armed forces of Nigeria to be deployed on a combat duty out of Nigeria and the Senate, to my understanding rejected the approval
“However, it does not end there. By reason of subsection 5, there is a proviso that notwithstanding the provision of subsection 4, the President, in consultation with the National Defence Council, may deploy armed forces out of Nigeria on a limited combat duty if he is satisfied that there is a real threat, that is, that Nigeria is under a real threat and the President could not get the approval of the Senate.
“He could deploy armed forces within seven days and must seek the approval of the Senate which must either approve or reject it within 14 days.
“Where the Senate approves the request within 14 days, then, the troops may be deployed. But where the Senate rejects the request, the President must recall the troops back to Nigeria,” Usman, SAN, added.
Likewise, another SAN, Mr. Abeny Mohammed, argued that the consent of the Senate was a constitutional requirement “that cannot be vetoed by the President.”
He said: “Sending Nigerian troops to a foreign country to fight or to engage in war with a foreign country are serious matters that cannot be left to the decision of the president alone.
“It requires the collective decision by the President and the Senate. However, in the event of a sudden attack on Nigeria, the president can deploy troops to repel the attack and defend the country without waiting for the consent of the Senate, which he can seek and obtain subsequently.”
Adding his voice to the debate, a Professor of Law, Epiphany Azinge, SAN, said: “It is not in dispute that the President is the commander -in-chief of the Armed forces, but when it comes to deployment of troops, he needs the acquircence of the Senate.
“This is for many reasons. First is to avoid outright dictatorship by Mr President. Second is to ensure budgetry approval for the conflict.
“A President that decides to engage in conflict against the advice of the Senate may be starved of funds for the prosecution of the war. That is not in the best interest of the nation.”
Similarly, Mr. Dayo Akinlaja, SAN, when he was asked if President Tinubu could deploy troops to Niger Republic despite the withdrawal of consent by the Senate, said: “The answer is an emphatic NO.”
Continuing, he said: “It is the prerogative of the Senate to approve the deployment of troops for combat duty outside Nigeria.
“The President is expected to obtain the prior approval of the Senate before any such deployment.
“Where the approval is refused, that ends the process. Although the Constitution allows the President to deploy troops before approval where there is imminent danger of attack of the Country and thereafter seek approval within seven days, that exceptional scenario does not arise in the instant situation.”
On his part, a front-line human rights lawyer, Chief Nkereuwem Udofia Akpan, said: “You will agree with me that ours is a Constitutional democracy fashioned after the American model where the doctrine of separation of powers forms the fulcrum upon which that structure revolves.
Similarly, Mr. Dayo Akinlaja, SAN, when he was asked if President Tinubu could deploy troops to Niger Republic despite the withdrawal of consent by the Senate, said: “The answer is an emphatic NO.”
Continuing, he said: “It is the prerogative of the Senate to approve the deployment of troops for combat duty outside Nigeria.
“The President is expected to obtain the prior approval of the Senate before any such deployment.
“Where the approval is refused, that ends the process. Although the Constitution allows the President to deploy troops before approval where there is imminent danger of attack of the Country and thereafter seek approval within seven days, that exceptional scenario does not arise in the instant situation.”
On his part, a front-line human rights lawyer, Chief Nkereuwem Udofia Akpan, said: “You will agree with me that ours is a Constitutional democracy fashioned after the American model where the doctrine of separation of powers forms the fulcrum upon which that structure revolves.
“Clearly, the President cannot override the decision of both houses of Parliament if those houses at plenary vote to reject the proclamation. The constitution grants the National Assembly powers in section 305 (2) to jettison and refuse to approve the proclamation.
“Curiously subsection 5 of section 5 of the same Constitution provides that the president can ignore the National Assembly and consult with the National Defense Council to deplore troops outside the shores of Nigeria on the condition that national security is under imminent threat or danger.
“Now, the proviso to that section 5(5) of the constitution mandates the President to still go back to NASS for approval for the action and at that point NASS may approve or reject the deployment
“In summary, it appears to me that the framers of our constitution never envisaged a situation where the President can go to war without any input from both houses of the NASS- Senate and House of Representative,” he added.
It will be recalled that the Senate had last Friday, rejected President Tinubu’s request to deploy troops to Niger Republic in support of move by the leadership of the Economic Community of West African States, ECOWAS, to reinstate President Mohammed Bazoum, who was recently ousted from office through a coup d’état.
Vanguard
