Men of the Nigerian Army had yesterday allegedly held the IPOB leader hostage while shooting sporadically at his Umuahia residence.
In his reaction, Falana described the action of the Army as “unconstitutional and illegal.”
Quoting section 215(3) of the Nigerian Constitution, the activist lawyer said the Nigeria Police Force has being empowered to maintain peace, public safety and not the Army.
He maintained that under a democratic dispensation, 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.”
Falana, noted that in view of the above, the Commissioner of Police in the state should be allowed to take over the case of Kanu in “line with the provisions of the Constitution and the Police Act.”
He noted that if Kanu is indicted during police investigations, he should be “charged to court as he is not above the law.”
The Senior Advocate warned that on no account should the Army be involved in the “arrest, investigation and possible prosecution of Kanu or any other civilian in the country.”
According to Falana, “No doubt, the Federal Government of Nigeria has the duty to maintain law and order in the country. But it is the duty which cannot be carried out outside the ambit of the law of the land. Last weekend, armed troops invaded Abia in Abia state to deal with the alleged threat of Mr. Nnamdi Kanu, the leader of the Indigenous People of Biafra (IPOB) to destabilise the country.
“It was reported yesterday that the troops have taken over the family house of Mr Kanu and put him under house arrest. I wish to submit, without any fear of contradiction, that the deployment of armed troops in Abia state and the house arrest of Mr. Kanu are illegal and unconstitutional on the following grounds:
“By virtue of section 215 (3) of the Constitution the Nigeria Police Force has been conferred with the exclusive power to maintain law and order and secure public safety and public order in the country.
“Having filed an application in the Federal High Court for the re-arrest and detention of Mr. Kanu for allegedly breaching the conditions attached to his bail the federal government ought not to have presented the trial judge with afait accompli by resorting to self help in the circumstance.
“Although the President is empowered by virtue of section 217(2) of the Constitution to deploy the armed forces for the “suppression of insurrection and acting in aid of civil authorities to restore law order” he cannot exercise the power until there is an insurrection or civil disturbance which cannot be contained by the police.
“Since there was no insurrection in Aba State which the Nigeria Police Force could not contain the deployment of armed troops by the President and Commander-in-Chief of the armed forces cannot be justified in law.
“However, if the federal government has evidence of other criminal offences recently committed by Mr. Kanu the Police should have been directed to arrest him and charge him to court without any delay.
“Neither the Constitution nor the Armed Forces Act Cap A20 Laws of the Federation of Nigeria, 2004 has empowered the Nigeria Army to arrest any citizen who is not subject to service law.