Lukman Olabiyi
Justice Mohammed Aikawa of the Federal High Court, Lagos has fixed November 28 for hearing of the preliminary objection filed by the Nigerian Army against the suit filed by a Senior Advocate of Nigeria (SAN), Mr. Femi Falana, to challenge the controversial Operation Positive Identification (OPI).
The judge had at the last hearing of the matter on November 5 ordered army to suspend the operation pending the final determination of the suit.
At yesterday’s proceedings, counsel representing Army and the Chief of Army Staff (1st and 2nd respondents), Mrs. Olayemi Badewole, drew the court’s attention to a motion dated November 14, seeking to regularize her clients’ notice of preliminary objection.
In the absence of any opposition from other parties in the matter, she moved the motion and her request was granted by the court.
The Solicitor General of the Federation, Mr. Dayo Apata (SAN), who represented the Attorney General of the Federation (3rd respondent) had earlier informed the court that necessary processes in respect of the suit has been filed and served on the plaintiff.
Responding, a lawyer from Falana’s chambers, E. E. Olawale, while acknowledging the receipt of the processes, sought for an adjournment to enable him respond appropriately.
Justice Aikawa subsequently adjourned the matter to November 28 for the hearing of all preliminary objections to the suit.
The Chief of Army Staff, Lt. Gen.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, Falana argued 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, 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 Lt. Gen. 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.