By Y.P Malum Esq.

The recent agitation over the issue that have permeated our national discourse appear to have heightened the concerns of many Nigerian, other public commentators and the international community. The planned invasion of Niger as a country has been the topical issue trending at the moment. It is in view of this that we take a cursory look at the some of the issues and legal concerns surrounding the entire saga and if possible, an appraisal of the issues and concerns. It is also in the interest of our understanding that some basic background should be laid for us to re-assess the issues.

On 26 July 2023 the presidential guard in Niger Republic, a West African state, overthrew the Government of President Mohamed Bazoum. The Heads of State of West African States under the aegis of the ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) met in Abuja, Nigeria’s capital, and issued 7 days ultimatum to the General Abdourahamane Tchiani led junta to restore democracy or be flushed out by the use of force.

PROHIBITION OF THE USE OF FORCE UNDER INTERNATIONAL LAW AND THE CONCEPT OF STATE SOVEREIGNTY

Political leadership of a sovereign state or nation is a domestic affair. The general principle of international law is that all independent states are sovereign in their internal affairs to the effect that no other nation is permitted to interfere in the internal affairs of other sovereign nations as provided for under Article 1 of the UN Charter.The concept “Sovereignty” also extends to the norms of international law to the effect that the invasion of sovereign states or country by external forces are prohibited under international law as provided for under Article 2(4) of the UN Charter.

2(4) “All Member (States) shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” (Words in bracket and bolded, mine).

The purposes of the United Nations as envisaged in article 2(4) of the UN Charter include, inter alia, to maintain international peace, security and DEMOCRACY. Therefore, by legal interpretation, article 2(4) only states that no sovereign state shall be invaded in a manner that is inconsistent WITH THE PURPOSES OF THE UNITED NATIONS. This follows that a sovereign state may be invaded when such invasion is consistent or in line with the purposes of the United Nations!

Flowing from the foregoing, where a sovereign state behaves in such a way as to endanger the PURPOSES of the United Nations, such a sovereign state can be invaded to bring it in line with the PURPOSES of the United Nations! See United Nations General Assembly Resolution 1990 permitting the invasion of Iraq for threatening world peace by violating the territorial integrity of Kuwait.

This now takes us to articles 11(3) of the UN Charter which expounds and interprets the meaning of “or in any other manner inconsistent with the Purposes of the United Nations,” as stated in article 2(4) of the UN Charter.

Article 11(3) permits the General Assembly of the UN to report to the Security Council any state who behaves in such a way as to endanger world peace such as a military coup that removes a democratic Government from power, democracy being one of the purposes of the United Nations.

Giving vires to Article 11(3) of the UN Charter, the combined provisions of Articles 24, 41, 42, 43, 44,45 and 46 of the charter permits the use of force by the UN to maintain world peace which includes restoration of democratic rule in any country where democracy has been threatened. This use of force is applied where negotiations to restore world peace and democracy has failed as provided for in article 40 of the UN Charter.

In the circumstances of the decision to invade Niger Republic by ECOWAS, the West African subregional body had already tried peaceful negotiation but the Niger junta called the bluff, inconsequence of which on Sunday 30th July 2023 the ECOWAS Heads of State met in Abuja and gave the junta 7 days ultimatum to restore democracy or be forced out by use of military force. Nigeria was appointed to led the military intervention.

Article 53 of the UN Chart empowers the United Nations to use the help of regional organizations such as the ECOWAS to achieve the PURPOSE of the United Nations. This is the foundation of ECOWAS’s powers to invade Niger Republic. And such foundational powers is in addition to the powers given to ECOWAS in that behalf by the African Union. The Economic Community of West African States needs to be authorized by the United Nations before it can intervene in restoring democratic rule in the military-held Niger Republic. Coup plotters led by the head of presidential guards, Gen. Abdourahamane Tchiani, held to power after ousting democratically-elected president, Mohammed Bazoum, in response, the West African bloc, led by President Bola Tinubu, issued sanctions and threatened military intervention in the Sahel region after a seven-day ultimatum was issued. However, it our considered opinion that we further, cautioned that, “the conduct of ECOWAS, as a regional arrangement, is subject to the provisions of the United Nations Charter, particularly article 53(1) and general international law.”

In addition to the above constitutional mandate, ECOWAS is required to seek and obtain the authorization of the UN Security Council to launch an attack on a sovereign nation pursuant to article 53(1) of the United Nations Charter. For the purpose clearly, we refer to Article 53(1) which provides in part,

“The Security Council shall, where appropriate, utilize 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 authorization 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 the authorization of the Security Council.

It is also clear that any intervention by the ECOWAS, apart from being subject to the authorization 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 the 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.

EXAMPLES OF INVASION OF SOVEREIGN STATES

Two living examples of invasion of sovereign states to restore democracy in West Africa are:

The 1997 Military intervention in Sierra Leone by the Nigerian led forces under General Sani Abacha’s regime in Nigeria. The military intervention was to restore democracy in Sierra Leone when a military junta led by Major Johnny Koroma overthrew the civilization Government of President Ahmed Tejan Kabbah.
In 2017, the Buhari Administration in Nigeria leading the ECOWAS forces invaded the Gambia to restore democracy when the President of the Gambia, Jayah Jammeh refused to hand-over power to the elected President, Mr Adama Barrow. Jayah Jammeh had to go into exile in Equatorial Guinea before the Nigerian led invasion was called off.
These are just two of the examples of invasion of sovereign states FOR THE PURPOSE OF THE UNITED NATIONS as envisaged by international law under the UN Charter.

SOVEREIGNTY OF STATES UNDER INTERNATIONAL LAW

There is No Absolute Sovereignty of States Under International Law. Though the general norm of international law is that sovereign states are supreme in their domestic laws, however, this is not absolute. I venture to say that the Green Tree Agreement which enforced the International Court of Justice judgment on Bakassi Peninsula have put the Nigerian residents of the peninsula under the protection of international law but not under the absolute domestic laws of Cameroon, yet Bakassi is Cameroon territory, and the domestic laws of Cameroon applies in the territory, and the Nigerians there residing there are foreigners. However, the Green Tree Agreement being international law, have exempted the Nigerian aborigines of Bakassi of being subjected to certain immigration laws of Cameroon and some other internal laws of Cameroon.

This demonstrates the fact that in some instances, domestic laws are subject to international law. As a principle, any domestic law of any country that is inconsistent with the principle of jus cogens or peremptory norm of general international law is illegal, invalid, null and void, and in such a case, international law would take precedence over such domestic law.

ON NIGERIA’S DEPLOYMENT OF ITS TROOPS IN SUPPORT OF THE INVASION

It is the consensus views that have been adduced on reasons why President Bola Tinubu cannot unilaterally deploy troops to Niger Republic to restore democratic rule in the troubled country or Niger.Part of the consensus view is 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 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, we 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.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.

What this means is that without the Senate approving the presidential request, the President cannot and shall not deploy any armed forces of the federation out of Nigeria on a combat duty.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.

We further argued that the consent of the Senate was a constitutional requirement that cannot be vetoed by the President. For whatever reason. 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. 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 acquiescence of the Senate. This is for many reasons. First is to avoid outright dictatorship by Mr President. Second is to ensure budgetary 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. Consequently, it is the prerogative of the Senate to approve the deployment of troops for combat duty outside Nigeria while 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. It is our submission that any attempt to ignore the rejection of the Senate would mean that the president is merely acting on illegality or his acts are illegal, Unconstitutional, Null and void.

Nigeria practice a Constitutional democracy fashioned after the American model where the doctrine of separation of powers forms the fulcrum upon which that structure revolves. A community reading of Sections 5, 305(1), (2) and (3) of the 1999 Constitution as amended shows that the president can declare a state of emergency and deplore troops outside the shores of Nigeria in certain situations. The conditions laid down for such a declaration are set out in section 305 (3) subparagraphs (a)-(g) of the 1999 Constitution as amended. By the provisions of subsection 2 of section 305, the President is mandated to make copies of the official gazette of the federation containing the proclamation to both the President of the Senate and the Speaker of the House of Representative. Upon receipt of the Gazette containing the proclamation, both houses will meet and consider whether to approve or reject .

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.

It will be recalled that the Senate had, 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. This power play is the activities of check and balances to forestall the whimsical abuse of powers and make room for proper rule of law in a democratic society.

CONCLUSION

The notion therefore that each state or independent nation is absolutely independent in its internal affairs is not a fallacy. Nigeria and ECOWAS have the power under international law to invade Niger Republic for the purposes of the United Nations once the require authorization is granted. Therefore, if the said president of Nigeria ignores the rejection of consent by the senate to mobilize troops to engage the war by the subregional government he would be acting unconstitutionally, and illegally. Therefore, Nigeria at this moment is not under any form of imminent attack to warrant the immediate deployment of troops. Following the constitutional and legal procedure would help nip such crisis in its bud. Therefore, a stitch in time saves Nine.

Y.P Malum Esq. is a lecturer and Legal practitioner and principal partner of Y.P Malum & Partners in Gombe and can be reached via 08067858051 or [email protected]