Operation Positive Identification: Court Says Army Has No Powers To Subject Civilians To Such Exercise

 

The Federal High Court sitting in Lagos has upheld a Fundamental Rights Enforcement Suit instituted by human rights lawyer, Femi Falana (SAN)over the planned implementation of the “Operation Positive Identification’.

Justice Rilwan Aikawa held that the Nigerian Army has no power under the Constitution to subject civilians to such positive identification.

While dismissing the objections of the Attorney General of the Federation and the Nigerian Army, the judge held that the applicant, Femi Falana SAN has the locus standi to have instituted the suit.

The judge also ruled that the fundamental rights of the Nigerian people to liberty and freedom of movement would be breached by the planned positive identification.

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Falana, a Senior Advocate of Nigeria (SAN), had filed the Fundamental Rights Enforcement suit on the 25th of October against the planned exercise by the army scheduled to hold from 1 November to 23 December 2019.

He listed the Nigerian Army, the Chief of Army Staff, Lieutenant General Tukur Buratai, and the Attorney General of the Federation, Abubakar Malami, as the respondents to the suit.

The senior lawyer in his suit asked the court to halt the implementation of the exercise, arguing that the operation – which would entail Nigerians to move around with a valid means of identification such as the National Identification Card, Voters Registration Card, Drivers’ Licence and passports or other valid official identification – is unconstitutional, illegal, null and void.

Citing several authorities, Mr Falana submitted that armed troops are not allowed by law to mount checkpoints on highways in the country. He says this is a job for the police and the respondents have not shown why the soldiers must take over the duties of the police. He also submitted that the appellate courts have ruled severally that the army has no business in civil actions neither are they allowed to get involved in elections.

He argued that the relief sought pertains to his right to life, liberty, and freedom of movement as there was a likelihood that the soldiers could shoot to death any individual who failed to produce any means of identification on demand.

He urged the court to grant his fundamental rights application which he insists are completely anchored on Chapter 4 of the Constitution.

But the three respondents to the suit filed a preliminary objection challenging the suit.

In his ruling on the issue, Justice Aikawa dismissed the objections of the Attorney General of the Federation and the Nigerian Army and held that the applicant has the locus standi to have instituted case.

Operation Positive Identification: Court Fixes May 15 For Verdict

 

The Federal High Court in Lagos has fixed May 15 to give its verdict on a suit instituted by human rights lawyer, Femi Falana, over planned implementation of the “Operation Positive Identification’ by the Nigerian Army.

Justice Rilwan Aikawa fixed the date after listening to arguments from the lawyers representing all the parties in the suit.

Falana, a Senior Advocate of Nigeria (SAN), had filed the Fundamental Rights Enforcement suit on October 25, 2019, against the planned exercise by the army scheduled to hold from November 1 to December 23.

Alongside the Nigerian Army, Mr Falana listed the Chief of Army Staff, Lieutenant General Tukur Buratai; and the Attorney-General of the Federation, Abubakar Malami, as the respondents to the suit.

The senior lawyer in his suit asked the court to stop the implementation of the exercise, arguing that the operation – which would entail Nigerians to move around with a valid means of identification such as the National Identification Card, Voters Registration Card, Drivers’ Licence and passports or other valid official identification – is unconstitutional, illegal, null and void.

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Citing several authorities, Mr Falana submitted that armed troops are not allowed by law to mount checkpoints on highways in the country. He says this is a job for the police and the respondents have not shown why the soldiers must take over the duties of the police.

He also submitted that the Appeal Courts have ruled severally that the army has no business in civil actions neither are they allowed to get involved in elections.

He argued that the relief sought pertains to his right to life, liberty, and freedom of movement as there was a likelihood that the soldiers could shoot to death any individual who failed to produce any means of identification on demand.

While asking the court to grant his fundamental rights application, Falana insisted that his move was completely anchored on Chapter 4 of the 1999 Constitution.

But the three respondents to the suit filed a preliminary objection challenging the suit.

In her arguments on the preliminary objection today, Counsel to the Nigerian Army and the Chief of Army Staff, Mrs Olayemi Badewole asked the court to dismiss the suit for lack of merit.

She argued that Mr Falana’s complaints are all based on Newspaper publications which are speculative. She further stressed that the reliefs sought are spent as the time-lapse for the nationwide operation had since elapsed and the case had become academic. She urged the court to dismiss the suit for lack of merit.

Counsel to the AGF, Mr Terhember Agbe, on his part, asked the court to take judicial notice of the insurgency in the country and the call for the sack of the Service Chiefs.

He stressed that operation positive identification had been going on in the North East and was a means by the army to fish out criminals and stop the breach of peace.

He claimed that the move to extend the exercise to other parts of the country was not aimed at shooting Nigerians or infringing on the fundamental human rights as guaranteed in the nation’s constitution.

Agbe also submitted that no evidence had been placed before the court to show that Operation Positive Identification has caused the death of any Nigerian.

He, therefore, urged the court not to give in to Mr Falana’s fear, a fear which he says is not founded in law and is not in the public interest.

After listening to all the arguments, the court fixed May 15 for its verdict.

Operation Positive Identification: Court Fixes Date For Hearing Of Preliminary Objection

 

Justice Mohammed Aikawa of a Federal High Court in Lagos on Thursday fixed a date for the hearing of the preliminary objection filed by the Nigerian Army against the suit filed by a Senior Advocate of Nigeria (SAN), Femi Falana to challenge the Operation Positive Identification (OPI).

The judge had on earlier November 5, ordered the Army to suspend the operation pending the final determination of the suit.

READ ALSO: Operation Positive Identification: Falana Sues Nigerian Army, Buratai And Malami

An earlier hearing date for yesterday, but the courts new date was fixed as a result of  Mr Falana’s application seeking for short adjournment for him to respond to the respondents’ application.

Counsel representing the Army and the chief of Army Staff (1st and 2nd respondents), Mrs. Olayemi Badewole, didn’t oppose the applicant’s application for short adjournment.

The solicitor general of the Federation, Dayo Apata (SAN), who represented the Attorney General of the Federation (third respondent) did not also oppose it.

In the absence of any opposition from other parties, the court fixed the new date, December 12, for hearing.

The Chief of Army Staff, Lieutenant General Tukur Buratai, the Army and the Attorney-General of the Federation were joined as co-respondents in the suit marked fhc/l/cs/1939/2019.

In the suit, Mr Falana argues that the planned nationwide operation which was scheduled 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, and null and void.

He insisted that the operation violates his right and that of other Nigerian citizens to liberty, “as encapsulated in section 35 respectively of the constitution of the Federal Republic 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.”

In an affidavit in support of the suit, Falana disclosed that by virtue of section 215 (3) of the constitution, the Nigeria Police Force “has the exclusive power to maintain law and order and secure public safety and public order in the country” and not the army.

He further contended that the President could only deploy military to suppress insurrection or restore law and order when such need arises in line with section 217(1) of the constitution.

The silk averred that there is no insurrection in every part of the country which is beyond the control of police to warrant the deployment of armed troops all over the country from November 1, 2019 to December 23, 2019.

According to him, the Nigerian Army under the leadership of Lieutenant General Tukur Buratai is not empowered to take over police duties while the President and Commander In Chief of the Armed Forces also 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 constitution.

He added that neither the constitution nor the armed forces act cap a20 lfn, 2004, empowered the Nigeria Army to arrest any citizen who is not subject to service law.

Court Orders Army To Suspend Operation Positive Identification

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A Federal High Court in Lagos has ordered the Nigerian Army and its Chief of Army Staff (COAS) to suspend the ongoing Operation Positive Identification by the army.

Justice Rilwanu Aikawa ordered both parties to maintain status quo ante pending the determination of a suit filed by Senior Advocate of Nigeria (SAN) Mr. Femi Falana.

Mr. Falana, a rights activist, filed the suit marked on October 25, seeking, among others, an order stopping the operation.

The COAS, the Army and the Attorney-General of the Federation are first to third respondents in the suit.

When the matter came up on Tuesday, none of the respondents were in court.

Falana informed the judge that the respondents had been served the processes and the proof of service was in the court’s file which was confirmed by the court.

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But a Principal legal Officer from the Ministry of Justice, Mr. Adebayo Mokuolu, asked the judge to grant an adjournment to enable the Solicitor-General, Mr. Dayo Apata, handle the matter personally and also give the respondents time to harmonise their positions, a request Mr. Falana did not oppose.

Justice Aikawa, however, granted his application and adjourned further proceedings till November 18.

“In view of the agreement between counsels, I hereby order the first and second defendants to maintain the status quo, pending the determination of the case,” the judge added.

In the suit, Falana argued that the planned nationwide operation which will 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, and null and void.

He argued that the operation violates his right and that of other Nigerian citizens to liberty, “as encapsulated in Section 35 respectively of the Constitution of the Federal Republic 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.”

He filed along with the suit an order seeking an interim injunction restraining the three respondents from going on with the plan pending the hearing of the substantive suit.

In a supporting affidavit sworn to by a lawyer in his team, Mr. Taiwo Olawanle, the plaintiff recalled that on October 8, 2019, the Chief of Army Staff, Lt.-Gen. Tukur Buratai disclosed that 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 a potential of movement disruption, and the army had thus advised Nigerians to ensure that they always carry valid means of identification.

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, the Nigerian President could only deploy the armed forces for the suppression of insurrection and acting in aid of civil authorities to restore law and order.

But he said, “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.

“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.”

Operation Positive Identification: Why I Am Suing Nigerian Army – Falana

A Senior Advocate of Nigeria (SAN) and human rights lawyer, Mr Femi Falana, has given reasons why he is suing the Nigerian Army over the planned Operation Positive Identification.

Falana who spoke during an interview on Channels Television’s Politics Today on Thursday, said the Armed Forces have no constitutional rights to usurp the powers vested on the Nigeria Police in the nation’s internal security.

He advised the armed forces to concentrate their efforts in containing the activities of the Boko Haram terrorists in the northeast rather than embarking on the “planned harassment and intimidation of Nigerians.”

“I am praying the court to restrain the Armed Forces, the Nigerian Army permanently from subjecting Nigerians to such ridiculous harassment as they are planning.

“I am actually telling the court that majority of Nigerians do not have any means of identifying themselves. They do not have passports, driving licences, voters cards or international passports,” he said.

Falana Challenges Governors To Get Involved In Police Administration

When asked if he has secured a court injunction to stop the military from carrying out the exercise, he replied saying: “I am working seriously on an injunction.”

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Speaking further, he warned the military against “subjecting Nigerians and other foreigners to a degrading and dehumanizing farce which is unknown to law.”

He argued that the “Constitution has vested the police the powers of maintaining internal security in Nigeria while the Armed Forces are in charge of defending the territorial integrity of the country.

“There are a number of court decisions, not less than five, that have made it pointedly clear that the military have no business in usurping police powers by attempting to maintain law and order in this country.”

Falana’s comments come two days after Nigerian Army described the viral post of planned nationwide ‘Operation Positive Identification’ (OPI) exercise credited to the Armed Forces as a ‘Fake Alert’.

In a social media post, the Army informed the public that the security advisory which is supposed to commence from November 1, 2019, to December 23, 2019, should be disregarded.

Fake News! Army Dismisses Report Of Operation Positive Identification Exercise

 

The Nigerian Army has regarded as ‘Fake Alert’ a viral post of planned nationwide ‘Operation Positive Identification’ (OPI) exercise credited to the Armed Forces.

In a social media post, the Army informed the public that the security advisory which is supposed to commence from November 1, 2019, to December 23, 2019, should be disregarded.

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The advisory which was doctored with the Army logo was quoted as “Planned Nationwide Military Operation by the Nigerian Armed Forces.

“It has been officially declared that effective from 1st November 2019 to 23rd December 2019, residents shall witness large numbers of uniformed Nigerian Army Personnel parading the roads in an exercise known as OPI”

It added that residents should move around with valid means of identification, and obey all directives by security agents.

See photo below: