Nigeria has not stopped amazing the likes of me. It is, indeed, a country where all things are possible: including standing the law on its head. Quite pathetic.
I have been deliberately mute over the ongoing macabre dance of the Federal Government (FG) of Nigeria on the secessionist agitations/protests by the South-Eastern based Indigenous People of Biafra (IPOB). What irked me most is the alleged proscription of IPOB by the Nigerian Army and South-East Governors’ Forum at its meeting in Enugu yesterday. I got up angry this morning and decided to purge myself and state my candid opinion, since the recent development has touched on my Legal Area of Specialisation: Anti -Terrorism Law and Human Rights.
The news dailies of the 15th and 16th September, 2017 reported both press releases held by the Nigerian Army and South-East Governors where they allegedly informed Nigerian public that they have proscribed and declared IPOB as Terrorist Organisation in Nigeria. Please, see http://thenigerialawyer.com/
As a member of the legal fraternity, I am aware that the law that regulates and/or punishes offences relating to conducts connected terrorism in Nigeria is the Terrorism (Prevention) Act, 2011 (as amended in 2013). That Act defines both “Terrorist Organisation” and “Proscribed Organisation” and more importantly, mentioned the agencies/persons that have the POWERS to make DECLARATIONS and PROSCRIBE organisations found to be involved in terrorist activities.
Section 19 (d) of the Terrorism (Prevention) (Amendment) Act 2013 amended Section 40 of the Principal Act (2011) and inserted the following: “proscribed organization” is a group involved in terrorism and is prohibited by law from operating in Nigeria and –
(i) declared to be a proscribed organization under section 2 of this Act; and
(ii) includes a group which has been declared to be an international terrorist group under section 9 of this Act…”
The same Section 19(h) provides that “terrorist organization” means any group of terrorist that-
(i) commits, or attempts to commit terrorist acts by any means, directly or indirectly, unlawfully and willfully,
(ii) participates as an accomplice in terrorist acts,
(iii) organizes or directs others to commit terrorist acts, or
(iv) contributes to the commission of terrorist acts by a group of persons acting with a common purpose where the contribution is made intentionally and with the aim of furthering the terrorist act or with the knowledge of the intention of the group to commit a terrorist act ..”
No doubts, it is within the powers of the executive to ‘declare’ or ‘proscribe’ any group as “terrorist organisation” under the said section 2. However, that power must be exercised according to the provisions of the Act. It cannot be done through hosting of press conferences and counter-press conferences.
On the procedure for the proscription of an organisation, the Act is sufficiently clear.
Section 2. Proscribed Organisation.
It provides thus: “(1). Where two or more persons associate for the purpose of or wherein organization engages in— (a) Participating or collaborating in an act of terrorism;
(b) promoting, encouraging or exhorting others to commit an act of terrorism; or
(c) setting up or pursuing acts of terrorism, the judge in Chambers may on an application made by the Attorney General, National Security Adviser or Inspector General of Police on the approval of the President; declare any entity to be a proscribed organization and the notice should be published in official gazette.
In compliance with the foregoing provisions, and particularly Section 2(1)(c), the Federal Government (under Fmr. President G.E. Jonathan) approached the Federal High Court in Suit No.FHC/ABJ/CS/368/2013 on 24/05/2013 for the declaration/proscription of the notorious Boko Haram. That was granted (per Kafarati J of Federal High Court No.2 Abuja) and Boko Haram was officially “proscribed” by the COURT on the APPLICATION of the then ATTORNEY GENERAL OF THE FEDERATION. Not the Army or the Governors. Not in the Court of Public Opinion (Media) but in the Court of Law.
Consequent upon that proscription and in compliance with Section 9(4) & (7) of the Terrorism (Prevention) Act 2011, the Federal Government proceeded to Gazette same in Federal Republic of Nigeria Official Gazette No. 34, Volume 100.
That Gazette was successfully relied upon in the cases of Federal Republic of Nigeria v. Mustapha Fawaz & 4 Ors (Unreported Charge No. FHC/ABJ/CR/112/13 (a Judgment delivered on 29/11/2013 per Hon. Justice A.F.A. Ademola of Federal High Court No. 6 Abuja) and Federal Republic of Nigeria v. Murktar Ibrahim (Unreported Charge No:FHC/ABJ/CR/178/2017) per Justice G.O. Kolawole (of the Federal High Court No. 5 Abuja) on 20/11/2015.
Now, in the instant case of IPOB, has the above legal provision been complied with? I am not aware of such compliance. Assuming but not conceding that IPOB truly exhibits the core traits of terrorist outfits, is that not double standard in a country where the rule of law and equally before the law are claimed to be part of our legal norms?
If the National Security Adviser and Inspector-General of Police are unaware of the above provisions of the law, that may be pardoned but not the Attorney-General of the Federation. Why is Mr Malami (SAN) so glaringly slacking in his duties as the Chief Law Officer of the Federation?
While we await the responses to those germane interrogatories, may I quickly request anyone that that has access to the Government (the Presidency, acting through the Army Authorities and the South East Governors Forum), to advise them to stop fulfilling the wishes of the Arewa Youths and comply with the law of the land. How? By approaching the court and apply for proscription of IPOB if they have sufficient grounds for that. In the spirit of Separations of Powers, let the judiciary decide either way. But I will not be surprise if the present administration of President Muhammadu Buhari continues to jettison this noble and entrenched legal procedure, considering its antecedental flouting of court orders in the ongoing trial of the embattled the Leader of IPOB – Mazi Nnamdi Kanu & Ors.
May it be emphasised here that unless and until that is done, IPOB remains a non-terrorist group. Instead, IPOB should be seen and treated as self-determination or freedom fighting movement, peacefully asking for referendum on the continued South Eastern corporate co-existence with the rest Nigerians.
Further, In the likely event that the Federal Government is ignorant of the case pending before ECOWAS Court of Justice against it, please draw their attention to that and the yet to be refuted fact that IPOB is a civil and non-violent organization registered in the United Kingdom. That it was registered under the United Kingdom Companies Act 2006. That it was issued a certificate registration with Reg. No. 9141882 and that it has more than 30 branches globally, including in Nigeria, according to the papers filed in that Court.
On the strength of the foregoing unassailable points of law and facts, the alleged declaration and/or proscription of IPOB by the DHQ and SEGF is NULL & VOID.
Fiat justitia ruat cælum.
H.U. Okoronkwo, (Ph.D in View)
Faculty of Law, University of Delhi.
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