1. Democratic Oversight of the Security Sector – The Nigerian experience
By
J. Kayode Fayemi
Centre for Democracy & Development
Introduction
Governments by nature prefer security sectors that are opaque to the general
public given the secrecy that often surround war and issues of security even
in peace times. The narrow definition that restricts security to its military
dimension precludes the notion that security knowledge should be widespread
and its activities made transparent – even to elected representatives of the
people. Given its antecedents in Nigeria and elsewhere in Africa, the security
services have often been seen as either an alternative or/and independent
power centre hardly subject to scrutiny by legislative bodies and independent
civil institutions. Whilst secrecy in the security sector is not the exclusive
problem of African states, the security sector has successfully managed to
keep prying eyes at bay under the pretext of protecting ‘national security’, thus
preventing proper parliamentary and extra parliamentary monitoring of
security agencies.
Over the last decade, there is a growing awareness in Africa that
constitutional democracy requires governments that are not only accountable
to their citizens but also subject to restraint by elected civil oversight actors
and independent oversight agencies. Interests groups and citizens now hold
strong views that State constitutions must entrench certain fundamental
principles that allow for the creation, existence and practice of oversight
agencies that can safeguard the interests of the people, mediate the excesses
of the government and help to enforce the law. Hence, on the judicial,
1

2. legislative and executive arms of government, there are civil oversight bodies
like the Ministries/Departments of Defence, Police Affairs, Parliamentary
Committees on Defence, Security, Intelligence, Police Affairs and Human
Rights; Financial Management bodies such as Ministry of Finance, Auditor-
General’s Office, Budget Monitoring Units; Judicial and Correctional agencies
such 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-cold
war constitutions have also given a pride of place to extra-parliamentary
oversight institutions such as Constitutional Courts, Anti-Corruption and Public
Accountability Bodies, Ombudsperson, Public Protector and Inspector
General of Government’s activities, Inspectorate of Intelligence Services,
Human Rights, Social Justice, Economic and Cultural Rights Commissions as
has been done in other parts of the world. Whilst upholding the importance of
parliamentary oversight committees, the importance of these complementary
and sometimes parallel institutions for oversight cannot be over-emphasised.
These institutions are seen, especially in civil society, as having the potential
of becoming the major pillars on which the very foundations of good
democratic practices are set, when they are allowed to function independently
of influence from State organs and personalities for the benefit and the cause
of participation in governance by the citizenry. From South Africa to Ghana,
Uganda to Benin republic, the principle of independent commissions as
mediatory organs or ‘honest brokers’ occupying the realm between the
citizens and governments has been central to recent constitution-making
campaigns and it has enriched the debate about the quality and character of
governance in these States.
In addition to parliamentary, state based oversight institutions and extra-
parliamentary oversight agencies, a number of African countries have also
incorporated international mechanisms that promote human security, human
rights and social justice into their domestic laws. For example, the African
Charter of Human and Peoples Rights, the statutes of the International
Criminal Court and the African Court of Justice have been ratified and
2

3. incorporated into the laws of several countries in Africa. Other countries have
incorporated the International Covenants on civil and political rights and on
social, economic and cultural rights into local laws – with serious implications
for the security sector. In spite of these laudable steps, it would be
presumptuous of one to conclude that democratic oversight of the security
sector is gaining prominence and wider acceptance among critical
stakeholders.
For the purpose of this paper, I will limit my assessment of the effectiveness
of democratic oversight of the security sector to Nigeria in the last three years
of civilian dispensation – examining in particular, legislative oversight in the
context 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 professionalism
The extent to which these criteria have been met or subscribed to by the
critical constituencies will determine how security agencies and their
overseers 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 by
the fact that the nature of democratic transition has varied widely and the
trajectories of transition have produced a wide assortment of post-military
3

4. political configurations in Nigeria with its attendant dilemma. This necessarily
underscores the importance of a holistic and comprehensive approach to
transformation of the security sector, which does not treat democratic
oversight as the only element of importance. It also inhibits generalisation
about the place of oversight and enforcement agencies.
Constitutional Dimension of Democratic Oversight
If the objective of creating a stable civil-security relations is to be
achieved, particular attention must be paid to the principle of accountability of
the military to the people and their elected representatives. The location of
the military in terms of its accountability to the executive, the legislature and
the wider society must be clarified in constitutional terms and promoted by the
executive and legislative branches of government. This is important for a
number of reasons. First, accountability, transparency and openness have
become fundamental constitutional tenets and the Obasanjo administration
has pushed accountability to the forefront of its reform agenda. Second, as a
national institution, the military relies on the public for support and sustenance
in order to fulfil its constitutional mandate and given its recent history, the
population remains sceptical of its commitment to accountability and
transparency. Third, the notion that security matters reside exclusively in the
military constituency is one that is increasingly challenged by the broadened
and inclusive meaning of security in the wider society. Hence, the view that an
issue relating to the armed forces and security services must be subjected to
public discourse has gained far greater prominence than could be imagined.
Therefore, in promoting accountability, it is now generally accepted that the
public must have a say as critical stakeholders in the shape and direction of
security sector reform, including on issues relating to democratic governance
in the sector, its role and mission and organisational coherence. Groups in
civil society have therefore taken upon themselves the need to broaden their
knowledge of the security sector in order to contribute to debates on conflict
prevention, police and military reforms, criminal justice system and
international peacekeeping.
4

5. Yet, constitutionalising democratic oversight is one thing, exercising it
in parliament is a completely different matter. Nigeria typifies the fact that
constitutions, even where the provisions for oversight are comprehensively
outlined, are not a substitute for actual decision-making in the realm of the
defence and security sectors. Three key issues illustrate this in the current
dispensation.
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 of
constitutionalising civil-security sector relations. Previous Nigerians
constitutions have tended to be unclear and simplistic about the armed forces
and its role in Society. Although Section 217(1) of the 1999 constitution
stipulates the role and broad functions of the Armed Forces: namely, a)
defending Nigeria from external aggression, b) maintaining its territorial
integrity and securing its borders from violations on land, sea or air; c) acting
in aid of civil authorities to help keep public order and internal security as may
be prescribed by an Act of the National Assembly; and d) performing such
other functions as may be prescribed by an Act of the National Assembly,
there was no attempt to reflect on the problems that arose from prolonged
military rule in the intervening period and what implications this might have on
civil-security sector relations. While it is arguable that this broad depiction of
the roles of the security forces gives the political authority enough flexibility to
define what it necessary at relevant periods, this generalised nature of the
role and broad functions has also been a problem. This has often been the
case when civilians frequently lack knowledge and understanding of military
affairs, and the apportioning of civilian and military responsibilities often
depend on the military itself, or on a small coterie of elected civilian officials
close to the President even during civil rule. In the case of Nigeria, this has
led to a further lack of accountability and presidential control, rather than
democratic governance of the security sector.
5

6. Given the burden of Nigeria’s authoritarian past and the loss of
credibility by the military, those knowledgeable about security issues in civil
society felt elected civilians should play a key role in military restructuring and
redefinition of roles and missions. This led to some conflicts between a
section of the populace who contend that legislative oversight should be
central to democratic governance of the security sector and others strongly of
the opinion that the President and his Defence Minister, as ex-military leaders,
should have the freedom to restructure the military without adequate or
necessary recourse to other checks and balances within the system simply
because "they know what they are doing".
As a result, the legislature has largely functioned as a rubber-stamp
national assembly as far as military matters are concerned. Not only are they
often unaware of developments in the security sector – perhaps due to lack of
interest, but often because they have no independent means of investigating
military proposals from the executive branch.i There has been widespread
agitation in civil society about the need to constitutionalise in a comprehensive
manner the role of the military and other security actors in internal security
issues, clarity in the use of emergency powers vis-à-vis the citizens’ non-
derogable rights, the place of international human rights law in the practice
and professionalism of the military as well as on issues pertaining to the
representativeness of the armed forces and law enforcement agencies. The
current review of Nigeria's constitution has provided an opportunity in civil
society to re-examine the constitutional dimension of military matters and a
clarification of the role of the executive, the legislative branch, the military
institution and other security actors and the oversight functions in the wider
society 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 Nigerian
constitution does little justice to it. In the view of civil society observers, the
most worrying clause in the 1999 constitution is the subordination of the
constitution to Section 315 (5)c of the 1999 constitution, which states that the
6

7. National Security Act (a body of principles, policies and procedures on the
operation of the security agencies) remains in law and cannot be overridden
by the constitution unless the legislature can muster two-thirds of its
membership 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 military
decree to still have this imposed legitimacy makes a mockery of the
democratisation process and exposes the country to the whims and caprices
of security agencies which operate largely in the dark.ii
Although Section 1(2) of the 1999 constitution stipulates that "The
Federal Republic of Nigeria shall not be governed, nor shall any person or
group of persons take control of the Government of Nigeria or any part
thereof, except in accordance with the provisions of this Constitution, the
concern in civil society remains that a strict legal interpretation of Section 315
on the National Security Act indicates that the Act can override the
constitution, in which case an interpretation of the above clause could very
well be that anyone who successfully removes a constitutional government via
the provisions of the National Security Act is acting in a constitutional, or at
least in a legal manner.
Finally, beyond the focus on an anti-coup strategy – which is understandable
because of the country’s history, the civil society has argued that attempts to
redefine the role and mission of the security forces most see security in a
wider context and reflect a perspective that sees security and stability as the
flip side of development. There is evidence to suggest that the current
administration understands the linkiii but this thinking must be translated into
policy.
The Role of Legislative Oversight Agencies in the Security Sector
The lack of informed knowledge and expertise on the part of elected civilian
authorities has posed a key challenge to effective oversight of the security
sector in most countries in Africa. There is a dearth of technical expertise on
7

8. security matters in national legislatures as they lack resources to engage
professionals in house knowledge base and outside consultants; lack of
communication with military professionals; inefficient use of the Committee
system in parliament; inexperience with legislative drafting; lack of interest or
involvement in the shaping of national security policies; lack of clarity on role
and functioning of legislative oversight bodies.
Although the problems vary from one country to the next – especially with
regards to the establishment and proper functioning of parliamentary
committees dealing with the security sector – Public Accounts, Defence,
Police Affairs, Security & Intelligence, Human Rights etc, it is also fair to say
that there are positive developments in several countries in this regard,
although it is driven largely by ad-hocery rather than a systematic
arrangement underscored by general principles of oversight in the
governance of the security sector. For example, the Ghanaian constitution
has a very extensive section of the constitution devoted to sanctions and
incentives relating to illegal overthrow of elected authorities; the South African
constitution has perhaps the most elaborate provisions on emergency powers,
not just in Africa but also in the entire globe. In addition, it developed a
National 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 on
military budget and declare war upon recommendation of the Council of
Ministers.
Key oversight principles
Over the last two years, there has been an increasing effort on the part of
African public sector officials, scholars and civil society activists to begin to
develop a set of principles of oversight and governance in the security sector
that are applicable across the board. Some of the key principles that have
become pivotal in the quest for effective oversight of the security sector can
be summarized as follows:
8

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 African
regimes. Divergent trajectories of transition have produced a wide assortment
of post-transition political configurations on the continent – some
complementary and progressive, others contradictory and worrisome. This
necessarily inhibits generalisation. Nevertheless, it is clear that most African
countries are committed to the development of best practice mechanisms in
the functioning of oversight agencies.
9

10. Oversight Institutions and the Challenge of Independence
While Oversight Institutions are gaining greater prominence in countries like
South Africa, Botswana and Uganda – where some landmark cases have
promoted public interest law and judicial activism and led to changes in the
Constitution, others reflect a more precarious situation. Indeed, oversight
agencies face a serious challenge of relevance and legitimacy in many
countries where they are in operation – primarily because they are not even
constitutional 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 a
contradiction in terms of the accountability of elected authorities and
personalities to all powerful oversight institutions with appointed officials
tasked with ‘supervising’, ‘monitoring’ and/or ‘regulating’ their powers is
inherently seen to be ‘undemocratic’. This is more so in situations where the
extra-parliamentary oversight institutions are not accountable to parliament
and do not derive their legitimacy from the parliamentary branch of
government. The executive branch sometimes utilises the establishment of
special commissions that are not accountable to parliament as a means of
dodging parliamentary scrutiny especially in the security sector. Even where
such oversight institutions account to parliament, politicians have argued that
it is a surreptitious way of power brokerage by those who could hardly face
the heat of electoral politics. In many of the countries in question, the view
that the checks and balances provided by the creative tension among the
three branches of government – the executive, legislature and the judiciary -
is adequate is prevalent even though many executive branches of
governments in Africa do not always recognise the powers of elected
representatives nor the judiciary to regulate their power or question their
actions as already indicated above.
Hence – the question of “who guards the guardians” is very central to the
relationship between elected officials and members of oversight agencies. In
10

11. some countries, appointed members of oversight agencies have political party
affiliation and this casts doubt on their independence and objectivity. It is not
uncommon for oversight institutions to be used in the pursuit of personal
agenda and therefore overstep their bounds, promote political viewpoints or
seek to embarrass elected authorities through biased and partial judgements.
While there may be objective reasons for party political affiliation in say
electoral commissions, reasons largely informed by the need to reflect the
various tendencies in places where trust has completely broken down – often
the practice in post conflict settlement agreements, this shouldn’t result in the
paralysis of such oversight institutions if the terms and conditions for such
arrangements are clearly worked out before hand and shared with the public.
Transparency therefore holds the key to ensuring that the actions of such a
body are not perceived to favour one party to the detriment of the others.
Partisan political or ethnic affiliations become an issue when accountability
agencies confuse their roles and responsibilities with that of the executive
branch or legislative committees. This encroachment into jurisdiction that is
often undefined but which appears outside of the realm of these institutions
has been a key source of problems especially in maturing democracies with a
great deal of potential for reversals. Yet, holding power accountable should
not imply determining the way it is exercised, neither does it aim at eliminating
discretion through stringent bureaucratic regulation.
The challenge of who ‘guards these guardians of state’ is often one to be
confronted. One way of addressing these institutional challenges is by
defining different levels of accountability – governmental, legislative,
bureaucratic, judicial, electoral and international and deciding early a clear
code of conduct or behaviour for those involved in independent oversight
institutions that are constitutionally entrenched and ensure that they are
placed to some degree within the parliamentary oversight system, that the
appointment process is transparent and/or that some members be elected
from the public. In addition, members of oversight institutions, for example,
should at the minimum be expected to:
11

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 Institutions
It is clearly a positive development that Africa’s democratic transitions have
given rise to attempts to bring oversight agencies into the mainstream of
constitutional governance and overall public sector management reforms, but
challenges remain. It is to the advantage of States where trust in government
capacity to act in the best interest of the citizens has been eroded over the
years to use these institutions to gradually build confidence in the transition
12

13. years and it is hoped that key stakeholders will show a significant interest in
the strengthening of such institutions..
For these institutions to make an impact beyond their appearance in
constitutional documents though, some benchmarks can be used in
appraising their effectiveness as oversight agencies responsible for the
accountability of elected authorities. These include:
13