Democratic oversight of the security sector the nigerian experience


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Democratic oversight of the security sector the nigerian experience

  1. 1. Democratic Oversight of the Security Sector – The Nigerian experience By J. Kayode Fayemi Centre for Democracy & DevelopmentIntroductionGovernments by nature prefer security sectors that are opaque to the generalpublic given the secrecy that often surround war and issues of security evenin peace times. The narrow definition that restricts security to its militarydimension precludes the notion that security knowledge should be widespreadand its activities made transparent – even to elected representatives of thepeople. Given its antecedents in Nigeria and elsewhere in Africa, the securityservices have often been seen as either an alternative or/and independentpower centre hardly subject to scrutiny by legislative bodies and independentcivil institutions. Whilst secrecy in the security sector is not the exclusiveproblem of African states, the security sector has successfully managed tokeep prying eyes at bay under the pretext of protecting ‘national security’, thuspreventing proper parliamentary and extra parliamentary monitoring ofsecurity agencies.Over the last decade, there is a growing awareness in Africa thatconstitutional democracy requires governments that are not only accountableto their citizens but also subject to restraint by elected civil oversight actorsand independent oversight agencies. Interests groups and citizens now holdstrong views that State constitutions must entrench certain fundamentalprinciples that allow for the creation, existence and practice of oversightagencies that can safeguard the interests of the people, mediate the excessesof the government and help to enforce the law. Hence, on the judicial, 1
  2. 2. legislative and executive arms of government, there are civil oversight bodieslike the Ministries/Departments of Defence, Police Affairs, ParliamentaryCommittees on Defence, Security, Intelligence, Police Affairs and HumanRights; Financial Management bodies such as Ministry of Finance, Auditor-General’s Office, Budget Monitoring Units; Judicial and Correctional agenciessuch as the Ministries of Justice and civil society institutions like the media,human rights organisations etc.In addition to these parliamentary oversight actors, many Africa’s post-coldwar constitutions have also given a pride of place to extra-parliamentaryoversight institutions such as Constitutional Courts, Anti-Corruption and PublicAccountability Bodies, Ombudsperson, Public Protector and InspectorGeneral of Government’s activities, Inspectorate of Intelligence Services,Human Rights, Social Justice, Economic and Cultural Rights Commissions ashas been done in other parts of the world. Whilst upholding the importance ofparliamentary oversight committees, the importance of these complementaryand sometimes parallel institutions for oversight cannot be over-emphasised.These institutions are seen, especially in civil society, as having the potentialof becoming the major pillars on which the very foundations of gooddemocratic practices are set, when they are allowed to function independentlyof influence from State organs and personalities for the benefit and the causeof participation in governance by the citizenry. From South Africa to Ghana,Uganda to Benin republic, the principle of independent commissions asmediatory organs or ‘honest brokers’ occupying the realm between thecitizens and governments has been central to recent constitution-makingcampaigns and it has enriched the debate about the quality and character ofgovernance in these States.In addition to parliamentary, state based oversight institutions and extra-parliamentary oversight agencies, a number of African countries have alsoincorporated international mechanisms that promote human security, humanrights and social justice into their domestic laws. For example, the AfricanCharter of Human and Peoples Rights, the statutes of the InternationalCriminal Court and the African Court of Justice have been ratified and 2
  3. 3. incorporated into the laws of several countries in Africa. Other countries haveincorporated the International Covenants on civil and political rights and onsocial, economic and cultural rights into local laws – with serious implicationsfor the security sector. In spite of these laudable steps, it would bepresumptuous of one to conclude that democratic oversight of the securitysector is gaining prominence and wider acceptance among criticalstakeholders.For the purpose of this paper, I will limit my assessment of the effectivenessof democratic oversight of the security sector to Nigeria in the last three yearsof civilian dispensation – examining in particular, legislative oversight in thecontext of certain specific benchmarks; namely: • Constitutional provisions and Government policies and procedures regarding oversight of security actors; • The interrelationships among and between security and oversight actors and agencies; • Legal frameworks for security and oversight actors; • Political commitment to oversight and accountability by security actors; • Capacity of Oversight Institutions in terms of technical expertise, funding; sensitivity to issues of professionalismThe extent to which these criteria have been met or subscribed to by thecritical constituencies will determine how security agencies and theiroverseers have performed in relation to the demands of public accountability.It must however be stated that such objective set of criteria notwithstanding,any evaluation of progress in the work of oversight agencies is complicated bythe fact that the nature of democratic transition has varied widely and thetrajectories of transition have produced a wide assortment of post-military 3
  4. 4. political configurations in Nigeria with its attendant dilemma. This necessarilyunderscores the importance of a holistic and comprehensive approach totransformation of the security sector, which does not treat democraticoversight as the only element of importance. It also inhibits generalisationabout the place of oversight and enforcement agencies.Constitutional Dimension of Democratic Oversight If the objective of creating a stable civil-security relations is to beachieved, particular attention must be paid to the principle of accountability ofthe military to the people and their elected representatives. The location ofthe military in terms of its accountability to the executive, the legislature andthe wider society must be clarified in constitutional terms and promoted by theexecutive and legislative branches of government. This is important for anumber of reasons. First, accountability, transparency and openness havebecome fundamental constitutional tenets and the Obasanjo administrationhas pushed accountability to the forefront of its reform agenda. Second, as anational institution, the military relies on the public for support and sustenancein order to fulfil its constitutional mandate and given its recent history, thepopulation remains sceptical of its commitment to accountability andtransparency. Third, the notion that security matters reside exclusively in themilitary constituency is one that is increasingly challenged by the broadenedand inclusive meaning of security in the wider society. Hence, the view that anissue relating to the armed forces and security services must be subjected topublic discourse has gained far greater prominence than could be imagined.Therefore, in promoting accountability, it is now generally accepted that thepublic must have a say as critical stakeholders in the shape and direction ofsecurity sector reform, including on issues relating to democratic governancein the sector, its role and mission and organisational coherence. Groups incivil society have therefore taken upon themselves the need to broaden theirknowledge of the security sector in order to contribute to debates on conflictprevention, police and military reforms, criminal justice system andinternational peacekeeping. 4
  5. 5. Yet, constitutionalising democratic oversight is one thing, exercising itin parliament is a completely different matter. Nigeria typifies the fact thatconstitutions, even where the provisions for oversight are comprehensivelyoutlined, are not a substitute for actual decision-making in the realm of thedefence and security sectors. Three key issues illustrate this in the currentdispensation. a) Role of Parliament in Defence Policy Making & Budgeting b) Use of the military in internal security operations c) Role of external military assistance d) Recent bomb blast in Lagos One critical area in which civil society has taken this up is in terms ofconstitutionalising civil-security sector relations. Previous Nigeriansconstitutions have tended to be unclear and simplistic about the armed forcesand its role in Society. Although Section 217(1) of the 1999 constitutionstipulates the role and broad functions of the Armed Forces: namely, a)defending Nigeria from external aggression, b) maintaining its territorialintegrity and securing its borders from violations on land, sea or air; c) actingin aid of civil authorities to help keep public order and internal security as maybe prescribed by an Act of the National Assembly; and d) performing suchother functions as may be prescribed by an Act of the National Assembly,there was no attempt to reflect on the problems that arose from prolongedmilitary rule in the intervening period and what implications this might have oncivil-security sector relations. While it is arguable that this broad depiction ofthe roles of the security forces gives the political authority enough flexibility todefine what it necessary at relevant periods, this generalised nature of therole and broad functions has also been a problem. This has often been thecase when civilians frequently lack knowledge and understanding of militaryaffairs, and the apportioning of civilian and military responsibilities oftendepend on the military itself, or on a small coterie of elected civilian officialsclose to the President even during civil rule. In the case of Nigeria, this hasled to a further lack of accountability and presidential control, rather thandemocratic governance of the security sector. 5
  6. 6. Given the burden of Nigeria’s authoritarian past and the loss ofcredibility by the military, those knowledgeable about security issues in civilsociety felt elected civilians should play a key role in military restructuring andredefinition of roles and missions. This led to some conflicts between asection of the populace who contend that legislative oversight should becentral to democratic governance of the security sector and others strongly ofthe opinion that the President and his Defence Minister, as ex-military leaders,should have the freedom to restructure the military without adequate ornecessary recourse to other checks and balances within the system simplybecause "they know what they are doing". As a result, the legislature has largely functioned as a rubber-stampnational assembly as far as military matters are concerned. Not only are theyoften unaware of developments in the security sector – perhaps due to lack ofinterest, but often because they have no independent means of investigatingmilitary proposals from the executive branch.i There has been widespreadagitation in civil society about the need to constitutionalise in a comprehensivemanner the role of the military and other security actors in internal securityissues, clarity in the use of emergency powers vis-à-vis the citizens’ non-derogable rights, the place of international human rights law in the practiceand professionalism of the military as well as on issues pertaining to therepresentativeness of the armed forces and law enforcement agencies. Thecurrent review of Nigerias constitution has provided an opportunity in civilsociety to re-examine the constitutional dimension of military matters and aclarification of the role of the executive, the legislative branch, the militaryinstitution and other security actors and the oversight functions in the widersociety in ensuring a stable civil-military relations. On the issue that has become the most critical to the Nigerian public –the quest for an anti-coup strategy – they believe the current Nigerianconstitution does little justice to it. In the view of civil society observers, themost worrying clause in the 1999 constitution is the subordination of theconstitution to Section 315 (5)c of the 1999 constitution, which states that the 6
  7. 7. National Security Act (a body of principles, policies and procedures on theoperation of the security agencies) remains in law and cannot be overriddenby the constitution unless the legislature can muster two-thirds of itsmembership to override it both at the national as well as state assemblies.Opponents are of the view that for an Act that came into being via a militarydecree to still have this imposed legitimacy makes a mockery of thedemocratisation process and exposes the country to the whims and capricesof security agencies which operate largely in the dark.ii Although Section 1(2) of the 1999 constitution stipulates that "TheFederal Republic of Nigeria shall not be governed, nor shall any person orgroup of persons take control of the Government of Nigeria or any partthereof, except in accordance with the provisions of this Constitution, theconcern in civil society remains that a strict legal interpretation of Section 315on the National Security Act indicates that the Act can override theconstitution, in which case an interpretation of the above clause could verywell be that anyone who successfully removes a constitutional government viathe provisions of the National Security Act is acting in a constitutional, or atleast in a legal manner.Finally, beyond the focus on an anti-coup strategy – which is understandablebecause of the country’s history, the civil society has argued that attempts toredefine the role and mission of the security forces most see security in awider context and reflect a perspective that sees security and stability as theflip side of development. There is evidence to suggest that the currentadministration understands the linkiii but this thinking must be translated intopolicy.The Role of Legislative Oversight Agencies in the Security SectorThe lack of informed knowledge and expertise on the part of elected civilianauthorities has posed a key challenge to effective oversight of the securitysector in most countries in Africa. There is a dearth of technical expertise on 7
  8. 8. security matters in national legislatures as they lack resources to engageprofessionals in house knowledge base and outside consultants; lack ofcommunication with military professionals; inefficient use of the Committeesystem in parliament; inexperience with legislative drafting; lack of interest orinvolvement in the shaping of national security policies; lack of clarity on roleand functioning of legislative oversight bodies.Although the problems vary from one country to the next – especially withregards to the establishment and proper functioning of parliamentarycommittees dealing with the security sector – Public Accounts, Defence,Police Affairs, Security & Intelligence, Human Rights etc, it is also fair to saythat there are positive developments in several countries in this regard,although it is driven largely by ad-hocery rather than a systematicarrangement underscored by general principles of oversight in thegovernance of the security sector. For example, the Ghanaian constitutionhas a very extensive section of the constitution devoted to sanctions andincentives relating to illegal overthrow of elected authorities; the South Africanconstitution has perhaps the most elaborate provisions on emergency powers,not just in Africa but also in the entire globe. In addition, it developed aNational Security White Paper with input from all sections of the society –parliament, the military, security agencies, and civil society. In Benin republic,the legislature exercises the power to declare a state of emergency, vote onmilitary budget and declare war upon recommendation of the Council ofMinisters.Key oversight principlesOver the last two years, there has been an increasing effort on the part ofAfrican public sector officials, scholars and civil society activists to begin todevelop a set of principles of oversight and governance in the security sectorthat are applicable across the board. Some of the key principles that havebecome pivotal in the quest for effective oversight of the security sector canbe summarized as follows: 8
  9. 9. • Security sector organizations, particularly in the security forces must be accountable both to elected civil authorities, established independent oversight agencies and to civil society; • Security sector organizations must operate in accordance with the international law and domestic constitutional law; • Information about security sector planning and budgeting are widely available, both within government and to the public, and a comprehensive and disciplined approach to the management of security sector resources is adopted; • Civil-military relations are based on a well-articulated hierarchy of authority between civil authorities and the defence forces, and on a relationship with civil society that is based on the respect for human rights and a culture of civility; • Civil authorities have the capacity to exercise political control over the operations and expenditure of the security forces and civil society has the capacity to monitor the security forces and provide constructive input to the political debate; • An environment exists in which civil society can be consulted on a regular basis on security policies, resource allocation, and other relevant issues; • Security-force personnel are adequately trained to discharge their duties in a professional manner consistent with the requirements of democratic societies; • Fostering an environment supportive of regional and sub-regional peace and security has a high priority for policy-makers”.[DFID:2000]Meeting these benchmarks poses a significant challenge to current Africanregimes. Divergent trajectories of transition have produced a wide assortmentof post-transition political configurations on the continent – somecomplementary and progressive, others contradictory and worrisome. Thisnecessarily inhibits generalisation. Nevertheless, it is clear that most Africancountries are committed to the development of best practice mechanisms inthe functioning of oversight agencies. 9
  10. 10. Oversight Institutions and the Challenge of IndependenceWhile Oversight Institutions are gaining greater prominence in countries likeSouth Africa, Botswana and Uganda – where some landmark cases havepromoted public interest law and judicial activism and led to changes in theConstitution, others reflect a more precarious situation. Indeed, oversightagencies face a serious challenge of relevance and legitimacy in manycountries where they are in operation – primarily because they are not evenconstitutional bodies.The challenge of legitimacy is not just one of operations and legal jurisdiction,but also one of conceptualisation. Conceptually, oversight agencies,especially where they are not legislative bodies, would appear to constitute acontradiction in terms of the accountability of elected authorities andpersonalities to all powerful oversight institutions with appointed officialstasked with ‘supervising’, ‘monitoring’ and/or ‘regulating’ their powers isinherently seen to be ‘undemocratic’. This is more so in situations where theextra-parliamentary oversight institutions are not accountable to parliamentand do not derive their legitimacy from the parliamentary branch ofgovernment. The executive branch sometimes utilises the establishment ofspecial commissions that are not accountable to parliament as a means ofdodging parliamentary scrutiny especially in the security sector. Even wheresuch oversight institutions account to parliament, politicians have argued thatit is a surreptitious way of power brokerage by those who could hardly facethe heat of electoral politics. In many of the countries in question, the viewthat the checks and balances provided by the creative tension among thethree branches of government – the executive, legislature and the judiciary -is adequate is prevalent even though many executive branches ofgovernments in Africa do not always recognise the powers of electedrepresentatives nor the judiciary to regulate their power or question theiractions as already indicated above.Hence – the question of “who guards the guardians” is very central to therelationship between elected officials and members of oversight agencies. In 10
  11. 11. some countries, appointed members of oversight agencies have political partyaffiliation and this casts doubt on their independence and objectivity. It is notuncommon for oversight institutions to be used in the pursuit of personalagenda and therefore overstep their bounds, promote political viewpoints orseek to embarrass elected authorities through biased and partial judgements.While there may be objective reasons for party political affiliation in sayelectoral commissions, reasons largely informed by the need to reflect thevarious tendencies in places where trust has completely broken down – oftenthe practice in post conflict settlement agreements, this shouldn’t result in theparalysis of such oversight institutions if the terms and conditions for sucharrangements are clearly worked out before hand and shared with the public.Transparency therefore holds the key to ensuring that the actions of such abody are not perceived to favour one party to the detriment of the others.Partisan political or ethnic affiliations become an issue when accountabilityagencies confuse their roles and responsibilities with that of the executivebranch or legislative committees. This encroachment into jurisdiction that isoften undefined but which appears outside of the realm of these institutionshas been a key source of problems especially in maturing democracies with agreat deal of potential for reversals. Yet, holding power accountable shouldnot imply determining the way it is exercised, neither does it aim at eliminatingdiscretion through stringent bureaucratic regulation.The challenge of who ‘guards these guardians of state’ is often one to beconfronted. One way of addressing these institutional challenges is bydefining different levels of accountability – governmental, legislative,bureaucratic, judicial, electoral and international and deciding early a clearcode of conduct or behaviour for those involved in independent oversightinstitutions that are constitutionally entrenched and ensure that they areplaced to some degree within the parliamentary oversight system, that theappointment process is transparent and/or that some members be electedfrom the public. In addition, members of oversight institutions, for example,should at the minimum be expected to: 11
  12. 12. • promote the principles of natural justice; promote and protect human rights;• act in an unbiased and impartial manner; not unfairly discriminate against any member of the public on account of race, gender, ethnic or social origin, colour, age, disability, religion, political persuasion, conscience, belief, culture or language;• avoid the use of the oversight institution to which s/he belongs to unfairly promote or prejudice the interests of any person, political party or interest group;• avoid the use of such bodies to persecute individuals on the basis of political persuasion;• promote sound, efficient, effective, transparent and accountable administration in the course of his/her official duties shall report to the appropriate authorities, fraud, corruption, nepotism, maladministration and any other act which constitutes an offence, or which is prejudicial to the public interest• avoid the use of or disclose any official information for personal gain or the gain of others;• execute his/her duty in a transparent and accountable manner;• uphold the integrity of the constitution.(In a number of cases, many of these institutions actually contradict, rather than reinforce the fundamental tenets of the constitution.)Appraisal of Oversight and Enforcement InstitutionsIt is clearly a positive development that Africa’s democratic transitions havegiven rise to attempts to bring oversight agencies into the mainstream ofconstitutional governance and overall public sector management reforms, butchallenges remain. It is to the advantage of States where trust in governmentcapacity to act in the best interest of the citizens has been eroded over theyears to use these institutions to gradually build confidence in the transition 12
  13. 13. years and it is hoped that key stakeholders will show a significant interest inthe strengthening of such institutions..For these institutions to make an impact beyond their appearance inconstitutional documents though, some benchmarks can be used inappraising their effectiveness as oversight agencies responsible for theaccountability of elected authorities. These include: 13