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.”