Court Declares Army’s Operation Positive Identification Illegal

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By Kingsley Nwezeh

A Federal High court sitting in Lagos has declared that the Nigerian Army had no power under the Constitution to breach the fundamental rights of Nigerian to free movement within the country.

Justice Rilwan Aikawa’s decision was sequel to a suit filed by human rights Lawyer, Mr. Femi Falana, SAN, challenging the Army’s power to breach Nigerians rights to free and unrestricted movement as guaranteed by the Constitution under the pretence of Operation Positive Identification.

Falana in his suit filed last year with No: FHC/L/CS/1939/2019 prayed the court among others, stopping the Nigerian Army’s operation code name-Positive Identification campaign, arguing that such action would breach the fundamental rights of the Nigerian people to liberty and freedom of movement.

Joined as Respondents in the suit were the Chief of Army Staff, COAS, the Army and the Attorney-General of the Federation.

When the suit was filed, the Attorney General of the Federation filed a response, praying the court to dismiss Falana’s suit, arguing that the human rights lawyer lacked the locus to institute the case.

Mr. Dayo Apata, SAN who represented the Attorney General of the Federation alongside Mrs. Olayemi Badewole, who represented the Nigerian Army had challenged Falana’s locus standi to institute the suit.

They had canvassed that the Army had the power to maintain law and order in any part of the country.

Dismissing the Attorney General’s objections and the Nigerian Army, Justice Aikawa held that the applicant had the locus standi to have brought the case.

Granting Falana’s reliefs, Justice Aikawa held that the plaintiff has locus since the planned military action will affect his (Falana) fundamental rights as guaranteed by the Nigerian constitution as well as other Nigerians.

The court also restrained the Respondents from carrying out the operations as planned, while declaring that such operation would violate the rights of Nigerians to their constitutional freedom of movement.

Falana had argued that the planned nationwide operation expected to run from November 1, to December 23, 2019, by which Nigerian citizens would be required to move about with means of identification is unconstitutional, illegal, null and void.

Falana added that the operation violated his right and that of other Nigerian citizens to liberty, “as encapsulated in Section 35 respectively of the Constitution of Nigeria, 1999 as amended and Article 6 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, (Cap A10) Laws of the Federation of Nigeria, 2004.”

The human rights lawyer had recalled in a supporting affidavit that on October 8, 2019 the Chief of Army Staff, Lt.-Gen. Tukur Buratai disclosed that the operation positive identification, said to be ongoing in the North-east theatre of Boko Haram insurgency would be extended to cover the entire nation.

He said the operation required Nigerian citizens to move about with legitimate means of identification such as the National Identification Card, Voters Registration Card, Drivers’ Licence and passports or other valid official identification.

He noted that the increase in deployment of security forces nationwide would be with potential of movement disruption, and the army had thus advised Nigerians to ensure that they always carry valid means of identification.

Opposing the Army’s plan, Falana argued that by virtue of Section 215 (3) of the Constitution, the Nigerian Police “has the exclusive power to maintain law and order and secure public safety and public order in the country” and not the army.

He contended that going by section 217(1) of the Constitution, only Nigerian President could deploy the armed forces for the suppression of insurrection and acting in aid of civil authorities to restore law and order.“

“There is no insurrection in every part of the country which the Nigeria police cannot contain to warrant the deployment of armed troops all over the country from November 1, 2019 to December 23, 2019,” Falana said.

“Neither the Constitution nor the Armed Forces Act Cap A20 LFN, 2004 has empowered the Nigeria Army to arrest any citizen who is not subject to service law.

“The 1st respondent (the Nigerian Army) under the leadership of the 2nd respondent is not empowered to take over police duties and 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 by virtue of Section 217 (a) (b) and (c) of the 1999 Constitution, as amended.”

Upholding the arguments, the court in its wisdom dismissed the respondents’ preliminary objections, holding that the plaintiff has locus standing to institute the suit as well as declaring that the Army have no right to breach the fundamental rights of Nigerians to move freely within the country.