OPI Will Violate Constitutional Rights of Nigerians
On October 8, 2019, the Chief of Staff of the Nigerian Army, Lt-General Yusuf Buratai announced that Operation Positive Identification (OPI), which is ongoing in the North East theatre of the Boko Haram insurrection, would be extended to cover the entire nation from November 1- December 23, 2019. Consequently, the Army Chief has directed the Nigerian people to move about with "legitimate means of identification, such as National Identification Card, Voters Registration Card, Drivers’ Licence and International Passport, or other valid official identification", during the duration of the so-called OPI.
According to the official claim of the military authorities, the Operation Positive Identification is being conducted by the Nigerian Army, to combat armed robbery, kidnapping and allied criminal activities in all the 36 States of the Federation. The decision of the leadership of the Nigerian Army to subject law abiding citizens to personal identification on the road, constitutes a gross infringement of their constitutionally guaranteed fundamental rights to freedom of movement and dignity. It is a sad reminder of the illegal practice of the white minority rulers, who compelled Africans to carry pass books outside their homelands or designated areas under the apartheid regime in South Africa.
Apartheid? As Nigerians are not under an apartheid regime, they should not compelled to carry pass books which have been outlawed in the democratic republic of South africa. In the recent past, "Operation Python", "Operation Scorpion" and similar operations conducted by the Nigerian Army in civilian areas, had led to the reckless arrests, detention and extrajudicial killing of innocent citizens. In fact, some of the armed soldiers killed Police officers and raped women, including undergraduates. Since majority of Nigerians do not have any of the aforesaid pass books, they are going to be subjected to unwarranted intimidation and physical attacks by armed soldiers, under the pretext of looking for criminal elements.
Pursuant to Sections 215 (3), 217 (2), (a), (b), (c), 218 (1), (3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the Nigeria Police is saddled with the responsibility to maintain law and order throughout the country. Furthermore, Section 4 of the Police Act states that: “The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required of them by or under the authority of this or any other Act”.
On the other hand, Section 217 (1) thereof has empowered the armed forces to defend Nigeria from external aggression; maintaining its territorial integrity and securing its borders from violation on land, sea or air; and suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly. Owing to the incessant usurpation of Police duties by the armed forces, the courts have had cause to interpret the relevant provisions of the Constitution.
In the case of BUHARI v OBASANJO (2005) 1 WRN 1 at 200 the Court of Appeal had admonished that "in spite of the non-tolerant nature and behaviour of our political class in this country, we should by all means, try to keep armed personnel of whatever status or nature from being part and parcel of our election process. The civilian authorities should be left to conduct and carry out fully the electoral processes at all levels". In the same vein, in Yusuf v Obasanjo (2005) 18 NWLR (Pt. 956) 966 @ 174 – 175, Salami JCA (as he then was) said: “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, after wrestling power from the military in 1999, conscious steps should be taken to civilianise the polity, and ensure survival and sustenance of democracy.”
In ALL PROGRESSIVES CON
GRESS v PEOPLES DEMOCRATIC PARTY AND OTHERS (2015) LPELR- 24349, the Court of Appeal had lucidly stated the position thus: “The law does not appear to make any provisions or provide a role for the Armed Forces or the military to dabble in civil activities like elections to elect civilian leaders, except perhaps to exercise their right of franchise to vote in their Barracks. ...Even the item (2) (c) which talks about Suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President but subject to such conditions as may be prescribed by an Act of the National Assembly, appears to be applicable only in the area of insurrection, to restore order, and even then, the military must be invited by the President, upon the fulfilment of specified conditions, prescribed by an Act of the National Assembly. Thus, even the President of Nigeria has no powers to call out the Armed forces and unleash them (military officers) on a peaceful citizenry. And, even in the event of insurrection or insurgency, the call of the Armed Forces to aid civil authorities to restore order, must be with the approval of the National Assembly which must provide conditions as specified in Section 217 (2) and 218 (4) of the 1999 Constitution".
In HONOURABLE BELLO MOHAMMED GORONYO AND ANOTHER v THE ATTORNEY- GENERAL OF THE FEDERATION, FHC/S/ CS/ 29/2014, Justice R. M Aikawa (as then was) held that, “any purported engagement of the Nigerian Armed Forces in the security, supervision of the Election in the Federal Republic of Nigeria by any person holding the office of the President of the Federal Republic of Nigeria without an Act
“.....WE ARE COMPELLED TO CALL ON COMMANDER-IN-CHIEF OF THE ARMED FORCES, PRESIDENT MUHAMMADU BUHARI, TO RESTRAIN GENERAL BURA FROM FORCING THE NIGERIAN PEOPL TO CARRY PASSES TO EXERCISE THEIR FUNDAMENTAL RIGHT TO FREEDOM O MOVEMENT, GUARANTEED BY SECTIO 41 OF THE CONSTITUTION”
of the National Assembly, shall be unconstitutional and in view of the combined provisions of Sections 217 (2) and 218 (1) and (4) of the Constitution of the Federal Republic of Nigeria (as altered).” A similar
decision was reached in HONOURABLE FEMI GBAJABIAMILA v PRESIDENT FEDERAL REPUBLIC
OF NIGERIA where Ibrahim Buba J. held that the President lacks the power to deploy soldiers for the conduct of election without the approval of the National Assembly.
In view of the foregoing, we are compelled to call on the Commanderin-Chief of the Armed Forces, President Muhammadu Buhari, to restrain General Buratai from forcing the Nigerian people to carry passes to exercise their fundamental right to freedom of movement, guaranteed by Section 41 of the Constitution. In Olisa Agbakoba v Director-General of State Security Service (1999) 3 NWLR (Pt 595) 340 the Supreme Court held that, “It is not in dispute that the Constitution gives to the Nigerian citizens the right to move freely throughout Nigeria, and to reside in any part thereof”.
Femi Falana, SAN, Human Rights Lawyer and Activist, recipient of the prestigious Bernard Simmons Award of the International Bar Association