Despite the Economic Community of West African States (ECOWAS) resolution to use force to remove the military junta in Niger in an effort to reinstate ousted President Mohamed Bazoum, the President Bola Tinubu administration is obligated to obtain the consent of both houses of the National Assembly. This is in compliance with section 5(4) of the Constitution of Nigeria 1999 (as amended), which provides as follows:”
“(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.”
However, “Section 5(5) thereof permits the President, in consultation with the National Defence Council, to 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 in imminent danger:
“Provided that the President shall, within seven days of actual combat engagement, seek the Senate’s consent, and the Senate shall thereafter give or refuse the said consent within 14 days.”
While several stakeholders urged caution, the Senate rejected President Tinubu’s request to deploy force against Niger. In addition to the aforementioned constitutional duty, according to article 53(1) of the UN Charter, the ECOWAS is required to seek and gain the UN Security Council’s approval before attacking a sovereign state, according to renowned human rights lawyer and activist, Femi Falana. Mr. Falana further stated that “the Security Council shall, where appropriate, use such regional agreements or bodies for enforcement action within its jurisdiction, according to Article 53(1). However, no enforcement action under regional agreements or by regional agencies shall be performed without the Security Council’s approval. This means that, as a regional agreement, the ECOWAS’ action is governed by the rules of the United Nations Charter, specifically article 53(1), as well as by general international law”.
As a result, ECOWAS cannot justify any intervention in Niger without the Security Council’s approval and in addition to requiring approval from the Security Council, it is evident that any intervention by the ECOWAS must be made collectively rather than unilaterally.
Unless it involves a scenario of self-defense, which is obviously not the case in the situation of the planned operation in Niger, any intervention by the ECOWAS would be unconstitutional without express Security Council authorization.