Is The Terrorism (Prevention) Act Valid?

By Abubakar D. Sani, Esq.

This question is prompted by the apparent disconnect between the terrorist offences and acts of terrorism which are outlined in the Terrorism (Prevention) Act, 2011, as amended, and the plenitude of law-making powers which the Constitution donates to the National Assembly. That the Assembly does not have a blank cheque to enact whatever law it deems fit is a constitutional truism, which is so notorious that even non-lawyers are familiar with it. However, in case judicial validation of this is required, we need look no further than TOGUN vs. OPUTA (No.2) (2001) 16 NWLR pt. 740 pg. 597 @ 644 where the Court of Appeal held that:

“Nigeria is a Federal Republic with a Constitution in which the legislative powers of the National Assembly and State Houses of Assembly are clearly defined. We have the Exclusive and the Concurrent Lists in which the National Assembly could legislate. This leaves the State Houses of Assembly to legislate exclusively on residual matters not included in either the Exclusive or Concurrent Lists”.

The foregoing is reinforced by the decision of the apex court in DOHERTY vs. BALEWA (1961) 2 NSCC 248 @ 252 where it explicitly stated that: “The Federal Parliament can legislate for the Federation only on those matters in respect of which it is specifically empowered to legislate under the Constitution”.

Status of the Terrorism Prevention Act

To the extent that the Terrorism Prevention Act (“TPA”) was enacted by the National Assembly, the obvious question is if the Constitution empowers the Assembly to enact it. This necessarily takes us to the fine print of the TPA, specifically the conduct, acts or omissions which it prohibits on the grounds that they are “acts of terrorism” as aforesaid. This provision (Section 1 (3) of the TPA, as amended) together with those of Section 1 (2) of the Act, put a person in grave risk of his (or her) life if convicted of violating them. Given their obvious importance, it is imperative to set them out verbatim, as follows:

 – Section 1(2): “A person or body corporate who knowingly in or outside Nigeria directly or indirectly willingly –

(a) Does, attempts or threatens any act of terrorism;

(b) Commits an act preparatory to or in furtherance of an act of terrorism;

(c) Omits to do anything that is reasonably necessary to prevent an act of terrorism;

(d) Assists or facilitates the activities or persons engaged in an act of terrorism or is an accessory to any offence under this Act;

(e) Participates as an accomplice in or contributes to the commission of any act of terrorism or offences under this Act;

(f) Assists, facilitates, organizes or directs the activities of persons or organizations engaged in any act of terrorism;

(g) Is an accessory to any act of terrorism; or

(h) Incites, promises or induces any other person by any means whatsoever to commit any act of terrorism or any of the offences referred to in this Act, commits an offence under this Act and is liable on conviction to the maximum of death sentence”
– Section 1(3): “In this section, ‘act of terrorism’ means an act which is deliberately done with malice aforethought and which:

(a) May seriously harm or damage a country or an international organization;

(b) Is intended or can reasonably be regarded as having been intended to –
i. Unduly compel a government or international organization to perform or abstain from performing any act;
ii. Seriously intimidate a population;
iii. Seriously destabilize or destroy the fundamental political, constitutional, economic or social structures of a country or an international organization or otherwise influence such government or international organization by intimidation or coercion; and

(c) Involves or causes, as the case may be –

i. An attack upon a person’s life which may cause serious bodily harm or death;

ii. Kidnapping of a person;

iii. Destruction to a government or public facility, a transport system, an infrastructural facility, including an information system, a fixed platform located on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss;

iv. The seizure of an aircraft, ship or other means of public or goods transport and diversion or the use of such means of transportation for any of the purpose in paragraph (b)(iv) of this subsection;

v. The manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of biological and chemical weapons without lawful authority;

vi. The release of dangerous substances or causing of fire, which is to endanger human life;

vii. Interference with or disruption of the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life;

(d) An act or omission in or outside Nigeria which constitutes an offence within the scope of counter-terrorism protocols and conventions duly ratified by Nigeria”

As previously stated, the next question is whether any of these provisions are within the legislative competence of the National Assembly under the Constitution. If they are not, it simply means that they are ultra vires, invalid, null and void in all the 36 States of the Federation – with the obvious exception of the FCT, Abuja for which the National Assembly legislates by virtue of Section 299(a) of the Constitution – in much the same way that the 36 States Houses of Assembly legislate directly for the States.

In this regard, if the TPA is juxtaposed with the Exclusive and Concurrent Legislative Lists of the Constitution, it will be seen that, apart from references to ships, the continental shelf, seizure of aircraft, nuclear biological/chemical and other kinds of weapons and explosives, power, duly ratified anti-terrorism treaties and railways, none of the remaining so-called ‘acts of terrorism’ itemized in the TPA enjoy the backing of the Constitution. The aforesaid exceptions, in my opinion, are the subject of the following specific provisions in the Constitution, namely Items 2, 3, 17, 21, 31, 36, 41, 46, 55 and 68 of the Exclusive Legislative List as well as Paragraph 1(a) of Part III of the 2^nd Schedule thereof.

The implication of this is that, things like kidnapping, physical assault, destruction of government facilities, non-ship/non-aircraft/non-rail transport systems/infrastructure (including  those relating to information technology) – even if they (regrettably) cause serious bodily harm or death – which are purportedly ‘acts of terrorism’ under the TPA, are in excess of the powers of the National Assembly under the Constitution. Accordingly, in my view, they ought not to be classified as terrorist acts punishable under the TPA. Therefore, with the exception of the FCT, Abuja, the affected provisions of the Act are unenforceable in any of the 36 States of the Federation. As the Supreme Court held in BODE GEORGE vs. FRN (2014) All FWLR pt. 718 pg. 879, the National Assembly is incompetent to enact a general criminal law applicable across Nigeria

Conclusion

The inclusion of matters in the TPA which are in excess of the powers of the National Assembly under the Constitution can only be rationalized as the predictable reaction of a nation under siege, increasingly reeling from the pull of multiple centripetal forces. The latest manifestation of this was the classification and proscription of bandits, a few weeks ago, as terrorists. Whether such legislative interventions will stem the tide of insecurity in Nigeria remains to be seen. What is clear is that such blanket statutory demonization speak more to the failure of governance at all levels than to genuine belief in the efficacy of draconian laws as a deterrent. That we have continued to resort to that option despite the lessons of history is nothing but the triumph of hope over experience.

Abubakar D. Sani, Esq.