Falana and other lawyers cite constitutional provisions, need for UN approval
By Jeph Ajobaju, Chief Copy Editor
Human rights activist Femi Falana, SAN has stressed Bola Tinubu cannot lead ECOWAS to a military expedition against coupists now ruling Niger Republic without approval from the National Assembly (NASS).
Others who also cautioned against war to resolve the crisis in Nigeria’s northern neighbour include constitutional lawyer Sebastine Hon, SAN; former Second Vice President of the Nigerian Bar Association (NBA) Monday Ubani; and Arewa Broadcast Media Practitioners Forum (ABMPF).
The Senate at the weekend downplayed military intervention and counselled the President and other Economic Community of West African States (ECOWAS) leaders to seek peaceful political resolution of the impasse.
“Notwithstanding the resolution of the Economic Community of West African States to resort to the use of force to flush the military junta in Niger in a bid to restore President Mohamed Bazoum, the Bola Tinubu administration is mandatorily required to seek the approval of both Houses of the National Assembly,” said Falana, who chairs Alliance on Surviving COVID-19 and Beyond (ASCAB).
“This is in compliance with Section 5(4) of the Constitution of Nigeria 1999 (as amended), which stipulates as follows: (4) Notwithstanding the foregoing provisions of this Section:
“(a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly, sitting in a joint session; and
“(b) except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria.
“However, by virtue of Section 5(5) thereof, the President, in consultation with the National Defence Council, may deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger:
“Provided that the President shall, within seven days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within 14 days.
“In addition to the above constitutional mandate, the ECOWAS is required to seek and obtain the authorisation of the UN Security Council to launch an attack on a sovereign nation pursuant to article 53(1) of the United Nations Charter. Article 53(1) provides in part;
“The Security Council shall, where appropriate, utilise such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorisation of the Security Council.
“This means that the conduct of the ECOWAS, as a regional arrangement, is subject to the provisions of the United Nations Charter, particularly Article 53(1) and general international law.
“Therefore, the ECOWAS cannot justify any intervention in Niger without authorisation of the Security Council.
“It is also clear that any intervention by the ECOWAS, apart from being subject to the authorisation of the Security Council, must be on a collective basis and not a unilateral one.
“In the absence of explicit Security Council authorisation, any intervention by ECOWAS would be illegal, unless it concerns a situation of self-defence, which is clearly not the case in the situation of the planned intervention in Niger.’’
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Tinubu can’t override NASS objection, says Hon
Hon also argued Tinubu cannot legally override objection of the NASS to declare war in a foreign land.
“The President cannot and should not attempt to do so. The fragile nature of Nigeria now does not favour Mr. President even contemplating this,” he said, per Vanguard.
“Speaking in constitutional terms, I would like to state that, under Section 5(4)(a) and (b) of the Constitution, the National Assembly must sanction the deployment of our troops on such a combat mission before any such deployment.
“The President is under duty to seek the approval of the National Assembly, which we all know has been sought and turned down.
“Beyond this, Section 5(5) permits Mr. President to deploy a limited number of troops outside Nigeria, but this is subject to two conditions.
“First of all, the security of Nigeria must be in danger. This is not applicable here, from all the surrounding circumstances.
“What has happened in Niger has not imperiled us in any way. Rather, any attempt by Mr. President to drag us into a war with Niger will seriously compromise our security and expose us to cross-border terrorism.
“The second condition is that Mr. President must, within 14 days of sending our troops on that temporary combat mission, seek and secure the approval of the National Assembly. From the look of things, the National Assembly will still reject this request.
“Why would the President then expose the lives of our children and expend our money on a mission that would most likely be botched by the National Assembly in two weeks’ time?
“In conclusion, I urge the National Assembly to stand its ground on this, for the overall interest of Nigeria.”
Ubani warns Tinubu not to violate Constitution
Ubani insisted “The provision of the Constitution is that the President cannot lead Nigerian military without the approval of the legislators.
“The provision does not contain any proviso to override the legislators in case of their refusal to give any nod for such adventure.
“Therefore, it will be clearly a breach, in fact a rape of the Constitution if President Tinubu goes ahead to deploy the Nigerian military without the concurrence of the Senate of the Federal Republic of Nigeria.”
Tinubu portraying himself as a ‘Western stooge’, says ABMPF
ABMPF expressed concern over the drumbeats of war being sounded by ECOWAS, spearheaded by Tinubu, to meddle in the internal affairs of Niger Republic.
“It is our conviction that the task of defending and sustaining democracy in Niger is the solemn duty of the people of Niger,” ABMPF Chairman Abdullahi Yauri said in a statement.
“The responsibility of its neighbours and friends like Nigeria, is not to exacerbate an already bad situation, but to support the democratic institutions of the country and pray for her in its time of needs.
“Again, it is worth emphasising that any military action in Niger will not only begin and end in Niamey, the Nigerien capital, but also spill over and snowball into Northern Nigerian communities in Kebbi, Sokoto, Zamfara, Katsina, Jigawa, Yobe, and Borno States.
“Its humanitarian consequences, however, would be felt across the nation and the West African sub-region.
“The coup in Niger, which began as a palace coup, has now become a national rallying point for anti-neocolonial struggle, not only in Niger but also in the rest of the Francophone West Africa.
“Even the nations of ECOWAS have come to terms with the reality of the coup as a fait-accompli that can’t be easily reversed.
“President Tinubu as ECOWAS leader, is also increasingly being seen as a Western stooge, doing the bidding of France and America. Anyone conversant with the historic role of Nigeria in ending colonialism in Africa knows that Nigeria doesn’t deserve the accolade of a Western stooge.
ECOWAS to back off ‘fatal misadventure’
“We applaud the courage and steadfastness of the Nigerian Senate and other well-meaning Nigerians who have preached caution and restraint.
“We urge other Nigerians to, therefore, rise with one voice to dissuade ECOWAS from this fatal misadventure.”
“Before the Berlin Conference of 1884, where Europe partitioned Africa into spheres of influence, what is today called Republic of Niger and Northern Nigeria were part of Hausaland and the Kanem Borno Empire.
“They shared common cultural, historical, economic and religious affinities, which the Western-imposed artificial boundaries couldn’t severe.
“Since independence, the two nations have maintained mutually beneficial diplomatic, socio-economic, security and cultural relationships through informal trade, marriages and other forms of people-to-people engagements, our two countries have welded into one, despite official impediments.
“In view, therefore, of the irreparable damage ECOWAS’ hasty resort to war would do to Nigerian-Niger relations, we call on the Tinubu administration to immediately take the following measures to return our relationship to the status quo ante: Suspend all entreaties towards war and seek a diplomatic solution to the crisis; take immediate measures to restore diplomatic ties with Niger Republic.
“Immediately open all our borders and allow free flow of economic activities and movement of people.; restore power supply to Niger Republic; seek resolution of the crisis in Niger through time-tested, give-and-take strategy of mediation, negotiation and compromise.
“The overall interest of the people of Niger, not the statutes of the ECOWAS protocols, should be the overriding consideration.
“Call on all well-meaning Nigerians, the civil society, religious and traditional leaders and the press to rise with one voice to support full restoration of diplomatic and other ties with the brotherly nation of Niger.”