The Nigerian Army Lacks the Power to Declare Civilians "Wanted" – By Femi Falana - Welcome to Julia Blaise Blog


Monday, 29 August 2016

The Nigerian Army Lacks the Power to Declare Civilians "Wanted" – By Femi Falana

On  Sunday, August 14, 2016, the proscribed Boko Haram terrorist sect released a video showing some of the abducted Chibok girls.  Shortly thereafter, the Nigerian Army declared three persons wanted over alleged links with the terrorist organization and for concealing information from the federal government on the whereabouts of the girls who were kidnapped on April 14, 2014.

The three persons are Ahmed Bolori, Aisha Wakil and Ahmed Salkida, a journalist. Mrs Aisha Wakil, a lawyer and human rights activist and Ahmed Bolori, a social worker.  As soon as the announcement was made Mrs Wakil reported herself to the army but was released and asked to await further instructions. She and Mr. Bolori have since been admitted to “administrative bail” by the army after meeting some conditions including the submission of their international passports. Thus, the planned pilgrimage to Mecca by the duo has been aborted by the army without any legal basis.
In justifying the decision to declare the three persons wanted the Nigerian army spokesperson, Colonel Sani Usman, stated that "There is no doubt that these individuals have links with Boko Haram Terrorist sect and have contacts with them. They must therefore come forward and tell us where the group is keeping the Chibok girls and other abducted persons to enable us rescue them...We rely on the relevant laws of the land and in particular the Terrorism Prevention Act  (as amended) where Nigerians could be punished for failure to disclose information about terrorists or terrorist activities." In his reaction to the serious allegations of withholding information and maintaining contacts with the terrorist organization the wanted journalist, Ahmad Salkida who is in exile in the United Arab Emirates stated via his Twitter that the video in question was sent to him before the girls' abductors uploaded it on Youtube.
Realizing that we are under a constitutional democracy which requires that the infringement of the rights of any citizen be justified in law the army has relied on the provisions of the country's anti terrorism legislation.
Notwithstanding the gravity of the allegations of maintaining contacts  with a terrorist movement and concealing information from the federal government, it is submitted that the decision of the Nigerian army to declare the "suspects" wanted is ultra vires, illegal and unconstitutional in every material particular.
Since the wanted persons are not serving military personnel who are subject to service law they cannot be investigated or tried under the Armed Forces Act Cap A20 LFN, 2004.  Furthermore, under the Terrorism Prevention Act 2011 as amended the army has not been authorized to perform any duty whatsoever. In other words, the powers of arrest, investigation and prosecution under the Act have been vested in the Nigeria Police Force and the State Security Service. In the circumstances, the Nigerian Army ought to have made available to either the Police or the SSS any evidence or information concerning the alleged links of the three persons to the terrorist body.
Thus, by declaring the three persons wanted without any legal authority the army has usurped the statutory powers of both the Police and the SSS.

In the process, it has breached the fundamental rights of the 'suspects' to personal liberty, dignity of the person and fair hearing guaranteed by the Constitution.

In addition, the freedom of movement of Mrs. Wakil and Mr. Bolori whose passports have been illegally impounded has also been violated by the army. Even under the defunct military dictatorship in Nigeria the arrest and detention of journalists as well as the  closure of media houses by security operatives were  declared illegal by several courts. Indeed, on several occasions, the ruling military oligarchy  was ordered to pay monetary damages for the breach of the human rights of journalists and very many other citizens. For instance, the Punch newspaper was awarded reparation of N22 million over the 1994 closure of its business premises and detention of its editor, Mr. Bola Bolawole by the combined team of armed soldiers and mobile policemen under the Sani Abacha junta.

In Civil Liberties Organisation v Nigeria (2001) AHRLR 75 some journalists who reported s phantom  coup plot against the Abacha junta were tried before  a Special Military Tribunal. They were convicted and jailed for being accessories after the fact of treason. The complainant dragged the federal government to the African Commission on Human and Peoples' Rights in Banjul, The Gambia. As the federal military government had no defense to the allegations of mistrial the African Commission held that the arrest, investigation and prosecution of the convicts violated Article 7 (1) of the African Charter on Human and Peoples Rights. Similar trials of civilians by military courts in Mauritania and Sudan have been vitiated by the Commission on the ground that they failed to meet the independence test. 

Although military dictatorship was terminated in Nigeria 17 years ago, the armed forces have continued to subject the civilian population to untold harassment and intimidation. On a regular basis, individual citizens have been arrested, beaten up or killed in cold blood while communities have been invaded  by armed soldiers. In many instances, it has been a tale of "sorrows, tears and blood" in the words of the late Fela Anikapo-Kuti. In one of such encounters 348 unarmed civilians including women and children were massacred in Zaria, Kaduna state last December. As if that was not enough the army decided to bury the bodies of the deceased secretly in a mass grave. Even though the national leader of the Islamic Movement in Nigeria, Sheik Ibraheem El-zakzaky and his wife were not at the scene of the military they have been detained without trial for over 9 months.

Even though the country is under a democratic dispensation the federal government has failed to restrain the armed forces from subjecting journalists and indeed all citizens to intimidation. Sometime in 2014 the Nigerian army arrested two journalists (who are staff of Aljazeera News Agency) in Maiduguri, Borno state. When all efforts by their employer to secure their release proved abortive our law firm was instructed to challenge their illegal incarceration in a military custody.  But as soon as we filed an application for the enforcement of the fundamental right of both detainees to personal liberty at the federal high court the Chief of Army Staff ordered their immediate release. 

However, while the armed forces deserve commendation for the success recorded so far in the counter insurgency operations in the north east region the military authorities ought to ensure that the human rights of citizens are respected. Since journalists and other civilians in combat operations are entitled to full legal protection under the Constitution and the Geneva Convention the Nigerian Army should be directed by the Chief of Army Staff to stop any further harassment of the "wanted" persons. As a matter of urgency, the National Human Rights Commission should make it clear to the members of the armed forces that we are no longer under military dictatorship  when the fundamental rights of the Nigerian people were violated with impunity.

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