Nigerian constitution, ECOWAS threat on use of force, and the place of UN security council

Ogunsakin Mustapha
10 Min Read
Mr Olukayode Majekodunmi

By Olukayode Majekodunmi

Frankly speaking, it is fair to say that President Bola Tinubu has stumbled on his first major Foreign Policy test as President with his handling of the situation in Niger. One would have expected that his administration’s priority would be domestic affairs, in particular the area of economic management and policy which most have assumed, wrongly or rightly, to be his area of strength. That said, so many things have been written regarding the unfolding situation in Niger.  

Some have talked about the socio-cultural relationship between the people of Niger Republic and our people in Northern Nigeria. We have read about how the situation could quickly develop into another proxy war between the US led NATO and Russia. Some have also written about the way the Nigerian President has handled the situation as if he was handling local politics in Lagos State.

This write-up focuses on the Law in relation to the Use of Force against a Sovereign Nation. This is particularly important as President Tinubu said very clearly in his inaugural speech: “…In the coming days and weeks, my team will publicly detail key aspects of our programme. Today, permit me to outline in broad terms a few initiatives that define our concept of progressive good governance in furtherance of the Nigerian ideal: The principles that will guide our administration are simple: 1. Nigeria will be impartially governed according to the Constitution and the Rule of Law…” 

The President personally promised to lead according to the Constitution and the Rule of Law. Hence, there shall be a clear attempt here to ask him to follow the dictates of the law. 

The operative areas of the Constitution of Nigeria in relation to the deployment of troops outside Nigeria are Section 5 subsections 4 and 5 of the Constitution of Nigeria 1999 (as amended). 

It goes thus: (“…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. (5) Notwithstanding the provisions of subsection (4) of this section, the President, in consultation with the National Defense 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.”

It is pertinent to note that the Nigerian Senate recently resolved to reject President Bola Tinubu’s request to deploy Nigerian troops in Niger Republic to restore democratic rule in that country. The upper legislative chamber advised Mr. President and the Economic Community of West Africa States (ECOWAS), which he leads, to explore other political solutions to the crisis. Thereafter, ECOWAS granted a Press Conference asking for the Military to be mobilized. They went on to say that their position had nothing to do with Nigeria, and that it is ECOWAS which is giving the instruction for the mobilization of the Military and not any individual President. That position of the subregional body is unknown to the Constitution of Nigeria, as our military is answerable only to the President, subject to approval of the National Assembly which had earlier rejected the deployment of our armed forces.

Mr Olukayode Majekodunmi

What is the place of the United Nations in relation to Lawful Use of Force? The rule relating to the Use of Force under the United Nations (UN) Charter is primarily outlined in Article 2(4) of the Charter. This article is a foundational principle of International Law which serves as a cornerstone of the UN’s mission to prevent conflicts and maintain international peace and security. Article 2(4) of the UN Charter states: “All Members 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.” This article enshrines the principle of non-interference and prohibits the use of force in international relations. It establishes the norm that states should resolve their disputes through peaceful means such as negotiation, mediation, and arbitration, rather than resorting to armed aggression. The only exceptions to the use of force outlined in the Charter are those authorized by the UN Security Council under Chapter VII, or those involving self-defense. Chapter VII of the UN Charter empowers the Security Council to take actions in response to threats to international peace and security, including the authorization of the use of force. Article 51 of the Charter recognizes the inherent right of individual or collective self-defense against armed attacks. However, even in cases of self-defense, the use of force must be proportional and necessary to repel the attack.

What is the status of International Treaties in relation to the Constitution of Nigeria? 

To answer this, I will delve briefly down memory lane. In 1983, the African Charter was incorporated into the domestic legislation of Nigeria in 1983 during the civilian government of Alhaji Shehu Shagari. It was done through the African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act.  About ten months after President Shagari signed the Act, the military overthrew his civilian government.  The ensuing military regimes in Nigeria’s history have not been known to respect human rights, nor to demonstrate any respect for the sacredness of the independence of the judiciary. They used all the means at their disposal to evade, circumvent and pervert the legal procedures structurally and institutionally designed to secure sanctity of the rule of law. Ouster clauses were particularly useful to the military in this regard. 

A look at the Supreme Court of Nigeria case between Chief Gani Fawehinmi and General Sani Abacha & Ors. will further serve to buttress the above.

The problem with Military Decrees was that many touched on the rights of citizens. The military government had no inhibitions to use bills of attainder. Ad hominem laws (laws directed as an attack to a person rather than the institution or office which they represent) were made retrospective for instance, to deprive persons of their properties without any process of hearing. Although Ouster Clauses are not exclusive to military regimes in Nigeria, the overwhelming majority were enacted during military regimes.  This case was a challenge on the legality of Ouster clauses provisions in the military in relation to the provisions of the commitments under the African Charter.

The Supreme Court had no difficulty regarding the status of the African Charter within the Nigerian legal system. Their Lordships held that the African Charter cannot be superior to the Constitution. They held that in Nigeria, regarding treaties, the principle of incorporation applies. Thus, since the African Charter has been adopted by an Act of the National Assembly, the Apex Court disregarded the position of the Court of Appeal, especially in relation to the international flavour of the African Charter and affirmed that the Charter is subordinate to the Constitution of Nigeria. This Supreme Court decision (in the case of Gani Fawehinmi V. General Sani Abacha) is still applicable today, and it definitively settles the issue of the status of International Treaties in relation to the Constitution of Nigeria.  Therefore, the ECOWAS resolution, Charter, and even that of the African Union, are subject to the Constitution of Nigeria. 

This fact is sacrosanct.

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