By Femi 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 Peoples of Biafra (IPOB) to destabilize 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:
*Nnamdi Kanu |
(1) 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.
(2) 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 a fait accompli by resorting to self help in the
circumstance.
(3) 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.
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(4) Since there was no insurrection in
(5) 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.
(7) 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 militarized. This is not what the citizenry
bargained for in wrestling power from the military in 1999. Conscious step or steps
should be taken to civilianize the polity to ensure the survival and sustenance
of democracy".
Regrettably, no conscious efforts have been made by
the civilian government to demilitarize 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 authorized to deal ruthlessly with civilians who are involved in any form
of agitation for self determination.
There is no legal basis for authorizing 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 legitimize 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 the army be involved in the arrest, investigation and
possible prosecution of Mr. Kanu or any other civilian in the country.
*Femi Falana is a Senior
Advocate of Nigeria (SAN)
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