One of our nation’s misfortunes is that the “wise” men who drafted the current constitution that serves as the framework for the governance of Nigeria, thought that a blind and wholesale plagiarism of the American presidential constitution was the best for our country.
We are still dealing with the fallouts of the imposition of the American constitution on our country with its apparent incongruity with our cultural, historical, economic, and institutional peculiarities.
Be that as it may, and as neo-colonial as it is, and as a result of the blind and insane plagiarism of the American constitution, we cannot debate specific aspects of the Nigerian constitution including the long debate about which branch of the government has the ultimate power to declare war, without going back to its source, the American constitution.
For centuries in the US, that debate about who has the ultimate power to declare war remains unresolved.
Many past US presidents have simply capitalized on the ambiguity in the relevant section of the US Constitution related to war declaration and have simply ignored congressional authority and oversight to declare war.
So, given this historical context, it is unsure whether the recently reported Nigerian Senate resolution to reject President Tinubu’s letter about his intent to deploy the Nigerian military in the ECOWAS-mandated war resolution to use the military against the Juntas in Niger would stop him from conducting his constitutionally mandated presidential responsibilities to maintain the security and territorial integrity of the country.
The question we all should debate is whether or should any president allow Congress to have veto power over his or her constitutional power to defend the sovereignty and territorial integrity of the country.
In other words, should a president, based on security reports decide that going to war was necessary to defend the territorial integrity of the country from a foreign power or a crisis in a neighbouring country, should he or she capitulate to the resolution of the senate which may be opposed to it?
That is a debate that is centuries old in the US and that may be relevant to the ongoing Niger crisis and President Tinubu’s power or lack thereof to take the country to war against Niger.
Below is the relevant section of the 1999 Nigerian Constitution related to the power to declare war, it states in subsection 4:
“Notwithstanding the foregoing provisions of this, section:-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 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, in the same constitution, its drafters perhaps recognising the danger of tying the hand of the president in case of urgent threat to the sovereignty and its territorial integrity, made the following seemingly contradictory provision by stating: “notwithstanding the provisions of subsection (4) of this section, 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.”
There are no higher responsibilities of the president of any nation than to protect and defend its constitution and its sovereignty and territorial integrity against any threat.
Almost universally across the globe, the presidential oath of office talks about protecting and defending the nation’s constitution and its sovereignty and territorial integrity.
There are no more consequential decisions the president of any nation can take than to send its sons and daughters to die in a war.
It is exactly the reason one of the most heavily litigated sections of the American constitution on which many would argue sadly and ill-advisedly, the Nigerian constitution was constructed, is the section, dealing with war declaration
The Niger military coup and the involvement of Nigeria as a leader and participant in the ECOWAS’s resolution to intervene militarily to restore the democratically elected president to power, represents a unique opportunity for Nigerians to debate this all important question.
Does the military coup in Niger qualify, as one of those situations under the section that empowers the president to engage in limited military combat if he and his defence council see a need for it?
Can, in fact, the president sleekly deploy the military in a “limited” military combat whatever that means since the constitution does not explicitly define what “limited” means. Hopefully, the Supreme Court might begin to clarify the contradiction in the matter of war declaration and what constitutes war.
Sadly, because the Nigerian social media landscape, especially the ubiquitous WhatsApp forum has had its oxygen completely sucked up by emotionalism and Russian disinformation warfare, fake news and propaganda, we Nigerians have been denied the opportunity to have this urgently needed debate in a logical and rational manner.
Since the Nigerian constitution was largely fashioned after the US presidential constitution, some might find the article referenced below stimulating. It explores how various US presidents in history have tried to sidestep the landmines inherent in the US Constitution on the subject matter of war declaration. https://www.history.com/news/us-presidents-war-powers-congress
*The Writer, Dr. Adewale Alonge, is the President, Africa-Diaspora Partnership for Empowerment & Development (ADPED) & Egbe Omo Oduduwa of South Florida, Miami.
