Human Right and Activist lawyer,
Femi Falana has called on President Muhammadu Buhari to direct the soldiers who
allegedly invaded residence of Nnamdi Kanu, leader of the Indigenous People of
Biafra, IPOB, and Aba town in Abia State to “withdraw and return to their
barracks forthwith.”
Men of the Nigerian Army had
yesterday allegedly held the IPOB leader hostage while shooting
sporadically at his Umuahia residence.
In his reaction, Falana described
the action of the Army as “unconstitutional and illegal.”
Quoting section 215(3) of the
Nigerian Constitution, the activist lawyer said the Nigeria Police Force has
being empowered to maintain peace, public safety and not the Army.
He maintained that under a
democratic dispensation, the “President and Commander-in-chief of the armed
forces lacks the power to deploy members of the armed forces in the maintenance
of internal security in any part of the country.”
Falana, noted that in view of the
above, the Commissioner of Police in the state should be allowed to take over
the case of Kanu in “line with the provisions of the Constitution and the
Police Act.”
He noted that if Kanu is indicted
during police investigations, he should be “charged to court as he is not above
the law.”
The Senior Advocate warned that
on no account should the Army be involved in the “arrest, investigation and
possible prosecution of Kanu or any other civilian in the country.”
According to Falana, “No doubt,
the Federal Government of Nigeria has the duty to maintain law and order in the
country. But it is the duty which cannot be carried out outside the ambit of
the law of the land. Last weekend, armed troops invaded Abia in Abia state to
deal with the alleged threat of Mr. Nnamdi Kanu, the leader of the Indigenous
People of Biafra (IPOB) to destabilise the country.
“It was reported yesterday that
the troops have taken over the family house of Mr Kanu and put him under house
arrest. I wish to submit, without any fear of contradiction, that the
deployment of armed troops in Abia state and the house arrest of Mr. Kanu are
illegal and unconstitutional on the following grounds:
“By virtue of section 215 (3) of
the Constitution the Nigeria Police Force has been conferred with the exclusive
power to maintain law and order and secure public safety and public order in
the country.
“Having filed an application in
the Federal High Court for the re-arrest and detention of Mr. Kanu for
allegedly breaching the conditions attached to his bail the federal government
ought not to have presented the trial judge with afait accompli by resorting to
self help in the circumstance.
“Although the President is
empowered by virtue of section 217(2) of the Constitution to deploy the armed
forces for the “suppression of insurrection and acting in aid of civil
authorities to restore law order” he cannot exercise the power until there is
an insurrection or civil disturbance which cannot be contained by the police.
“Since there was no insurrection
in Aba State which the Nigeria Police Force could not contain the deployment of
armed troops by the President and Commander-in-Chief of the armed forces cannot
be justified in law.
“However, if the federal
government has evidence of other criminal offences recently committed by Mr.
Kanu the Police should have been directed to arrest him and charge him to court
without any delay.
“Neither the Constitution nor the
Armed Forces Act Cap A20 Laws of the Federation of Nigeria, 2004 has empowered
the Nigeria Army to arrest any citizen who is not subject to service law.
“In the case of Yussuf v Obasanjo
(2005) 18 NWLR (Pt 956) 96 the Court of Appeal held that “It is up to the
police to protect our nascent democracy and not the military, otherwise the
democracy might be wittingly or unwittingly militarised. This is not what the
citizenry bargained for in wrestling power from the military in 1999. Conscious
step or steps should be taken to civilianise the polity to ensure the survival
and sustenance of democracy”.
“Regrettably, no conscious
efforts have been made by the civilian government to demilitarise the country
since power was transferred from former military dictators to the civilian wing
of the political class in May 1999. Hence, armed soldiers have been allowed to
continue to be involved in the maintenance of law and order in all the states
of the federation. Up till now, state governments have allowed armed soldiers
to remain members of the police anti robbery squads. They have been deployed,
from time to time, by the President to deal with the menace of herdsmen and
kidnappers. They have just been authorised to deal ruthlessly with civilians
who are involved in any form of agitation for self determination.
“There is no legal basis for
authorising the Nigerian army to take over police duties. Even under the
defunct military era in Nigeria the military dictators had to declare a state
of emergency to legitimise the usurpation of police powers by the armed forces.
But under a democratic dispensation the President and Commander-in-chief of the
armed forces lacks the power to deploy members of the armed forces in the maintenance
of internal security in any part of the country. Hence, in waging the war on
terror in the north east region a state of emergency was declared by President
Jonathan to justify the deployment of members of the armed forces as part of
the extraordinary measures required by him to restore law and order pursuant to
section 305 of the Constitution. Thereafter, the President sought and obtained
the approval of the National Assembly for the said deployment of the armed
forces.
“In view of the foregoing, the
President should direct the armed troops who have invaded Aba in Abia State to
withdraw and return to their barracks forthwith. At the same time, the
Commissioner of Police in Abia state should be allowed to take over the case of
Mr. Kanu in line with the provisions of the Constitution and the Police Act. If
he is indicted in the investigation that is expected to be conducted by the
Police he should be charged to court as he is not above the law. But on no
account the army should be involved in the arrest, investigation and possible
prosecution of Mr. Kanu or any other civilian in the country.”
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