Law  

Demilitarising our hearts and minds


At the risk of becoming boringly theoretic in my commentary, the fallout of the military’s python rhumba over the past few weeks is difficult to ignore. In what appeared to be a response to growing popularity and the brazen flouting of bail conditions, the Nigerian Army was deployed to the south-eastern region of the country. Of course, as has long been acknowledged their regular trademark, they left sorrow, tears and blood in their wake. In addition, this time, they left videos of what can only be described as torture of the most humane kind. The response of many civilians to the events is worrying and compels us to examine again the theoretical legal foundations of our country (and most in modern society).

Societies moved away from monarchies towards republicanism because it grew increasingly repugnant for so much power to be vested in the Crown. The King could tax, harass, execute, pardon, make war or peace and basically run the country however he darn well felt. It was oppressive and some societies revolted. In others, contemporary thought-led, for example, to clamours for elected representatives to oversee how the unelected sovereign spent their taxes. Further thinking led to the conclusion that a society could not function properly if all the sovereign’s power (executive, judicial and legislative) was vested in one authority. So, powers were separated and restructured to act as checks and balances against each other. Otherwise, injustice was likely to prevail – if the king or any of his marshals hated you, you were done for. Tyranny.

The organisation of modern government is therefore largely premised on the notion that the state is all-powerful and the citizens of the state must be given protections and guarantees against those who wield the state’s power. The recognition of individual rights against the wieldy might of the state is not a new notion. As our doggedly animist Classics teacher at the University of Ibadan frequently pointed out, the difference between the trials of Jesus Christ and the Apostle Paul was that Paul was a Roman Citizen and was therefore entitled by law to demand a trial before Caesar. Those rights did not extend to Jesus, as he was not a Roman citizen. The rights that Nigerians have are spelt out in the constitution, alongside the powers of the state and the limits to those powers.

It is therefore alarming, more than for the deployment of the army itself, that any free-thinking citizen would accord the government any due for dispatching the army to quell what has largely been an ideological uprising. This is a very important point, the “uprising” being a non-violent one, because the response to ‘X has broken the law’ cannot be ‘the government was therefore right to send in the army’. Why? Because the notion of breaking law implies that a society is one of laws. In our society, as is safeguarded and guaranteed by the constitution, no one can be found guilty of a crime unless an existing law creates the offence and stipulates the punishment for it. Again, importantly, this means that individuals can only be punished by the government in accordance with the law. Nothing in our law empowers anyone to deploy the army for purposes of law enforcement. Not members of the Shiite sect blocking the road and hindering the passage of the Chief of Army Staff (and staring him down, some versions say), and certainly not non-violent ‘secessionist agitation’.  The law is clear on when the President can deploy them and whose permission he needs to be able to do so.

Crucially however, nothing in the foregoing text absolves the principal character behind the agitation of anything of which he has been accused. If indeed he has broken his bail conditions, what the law says is that bail should be revoked and he should be remanded. If he has committed new offences, what the law prescribes is arraignment for the said offences. The law is quite clear on what should happen when it is broken.

The most ridiculous of arguments however is the assertion that the creation of a uniformed secret service division by the protagonist in question immediately turned his followers into ‘enemy combatants’ liable to be engaged by the army. I would urge everyone to study the history of that term and how it was coined by the Bush administration to avoid giving Al Qaeda fighters Prisoner of War status under the Geneva Convention. Secondly, even if the people being tortured by the Army in those videos in circulation had been captured in conflict (they were not, for emphasis), there is no justification for violations of flogging and other corporal punishment meted by the Army. Furthermore, if they were to be charged for any offences, would they not have been handed back to the police for prosecution in our civilian courts and not military tribunals?

As a body of followers, we must impress it upon our leaders that it is in times of crisis that it is most important to adhere to law. This is how enduring institutions are built. We have to stop making arguments of convenience on the government’s behalf – government should justify itself to the people. As my learned friend Ayo Sogunro argues, we must hold the government and its agencies to higher standards than we hold citizens because citizens breaking the law does not affect the substance of the law – however, government (or the Army) breaking the law renders the law useless. See how they almost made the law on proscribing organisations useless?



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