Nothing reflects the controversy surrounding the description of a terrorist better than the recent proscription of the Islamic Movement in Nigeria (IMN) as a terrorist organization by the federal government following an order of the Federal High Court.
The decision has also exposed major shortcomings of not only the Terrorism Prevention Act 2011 (TPA), but the notorious absence of a global consensus on the descriptive characterization of terrorism. The definition of terrorism in the TPA is vague; only political parties are immune from designation and proscription as terrorist organizations, and the procedure for the designation of a group as a terrorist organization and its deproscription is unsatisfactory and open to abuse. Any group of persons can be labeled a terrorist organization based on loosely defined opinions. The use of proscription powers is a standard practice under terrorism law, although the infusion of checks and balances remains controversial.
Despite the fact that the procedure adopted by the federal government in designating the IMN as a terrorist organization complies with Section 2 of the Terrorism Prevention Act 2011 and has therefore followed the due process of the extant terrorism law, the provision gives the Attorney General of the Federation (AGF), National Security Adviser (NSA), Inspector General of Police (IGP), and the President of the Federal Republic of Nigeria, unfettered powers over which body they may proscribe. The duty of the court throughout the proceedings is essentially only to formalize and consummate the process, and not to examine the merit of the application. Afterwards, the Attorney General may, subject to the approval of the President, apply to the court for a withdrawal of the order if he is satisfied that the organization has refrained from acts of terrorism and no longer constitutes a threat to the security of the country. In the absence of that, the proscription order may last forever. In consequence, the AGF, NSA, IGP, and the President of the Federal Republic of Nigeria together, make the grave decision to proscribe an organization or to review the order. There is no requirement under the TPA to balance the executive, legislative and judicial powers of state.
The Attorney General, NSA, or IGP is not even required by the Terrorism Prevention Act to make the decision to proscribe an organization on ‘reasonable ground’. This leads to the question, whether the executive, legislature, or the judiciary should be the proper or final authority to decide not only whether a proscription order should be made, but also to make it. The proper action to take, so as not to breach the rule of fair hearing since the court is involved at the preliminary stage, is for the AGF, NSA, or IGP, to apply to the Federal High Court for an order inviting the organization sought to be proscribed, or any member of it, to show cause why it should not be declared a terrorist organization. Presently, the TPA does not require any of them to take this step. The proscription power in the TPA has been criticized because of its potential interference with civil liberties and the necessity of subjecting it to independent judicial or legislative control.
The procedure, also used for the proscription of the Indigenous People of Biafra (IPOB) in 2017 generated public outcry. Presently again, mixed reactions have trailed the designation of the IMN as a terrorist organization. Section 2 of the TPA 2011provides that:
- Where two or more persons associate for the purpose of or where an 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.
- An order made under subsection (I) of this section shall be published in the
official gazette, in two National newspapers and at such other places as the judge in Chambers may determine.
- A publication made under subsection (2) of this section shall contain such
relevant particulars as the judge in Chambers may specify;
- a person who belongs or professes to belong to a proscribed organization commits an offence under this Act and shall on conviction be liable to imprisonment for a maximum term of 2 years;
(ii) for the avoidance of doubts, political parties should not be regarded as proscribed organizations and nobody should be treated as such because of his or her political beliefs.
(4) It is a defence for a person charged under subsection (3) of this section to prove that the organization had not been declared a proscribed organization at the time the person charged became or began to profess to be a member of the organization and that he has not taken part in the activities of the organization at any time after it has been declared to be proscribed organization.
(5) The Attorney General upon the approval of the President may
withdraw the order if satisfied that such proscribed organization has ceased to engage in an act of terrorism-
- the proscribed organization or person affected by the order made an application on notice; and
- he is satisfied that a proscribed organization has ceased to engage in the acts specified in subsection (1) of this section and that there is no likelihood of the organization engaging in such acts in the future and shall be published in the official gazette.
India, Australia, Uganda, Kenya, Malaysia, and the United Kingdom have comparable laws or procedures for the proscription of terrorist organizations.
In India, the central government may by an order, in the Official Gazette, add an organization to the schedule of terrorist organizations, only if it believes that the organization is involved in terrorism, or remove it from the list if it no longer thinks so (section 18, The Prevention of Terrorism Act 2002). The organization or any person affected by the order may apply to the central government for a reversal of the order. If the application is refused, the applicant may apply to a Review Committee constituted by the central government. The Review Committee consists of a legal practitioner who is, or has been a Judge of the High Court, and not more than three other members (Section 60). The Nigerian TPA does not establish a Review Committee to which appeals against the decision of the Attorney General may lie.
Two legislations regulate the proscription of terrorist organizations in Australia: The Security Legislation Amendment (Terrorism) Act 2002 (or here referred to as the SLAT Act), and The Criminal Code Act, 1995. Division 102.1 (3) of the SLAT Act authorizes the Governor-General to make a regulation specifying an organization to be a terrorist organization if the relevant minister is satisfied on reasonable grounds that (a) the Security Council of the United Nations has made a decision relating wholly or partly to terrorism; and (b) the organization is identified in the decision, or using a mechanism established under the decision, as an organization to which the decision relates; and (c) the organization is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur). Australian law imposes a high threshold requirement which an organization must meet before it may be proscribed, that is, its level of violence and atrocities must have attracted the attention and condemnation of the United Nations Security Council through its pronouncements. In contrast, the Nigerian TPA imposes a very low threshold for declaring a body a terrorist organization.
The Governor-General of Australia is required to address the Leader of the Opposition in the House of Representatives before passing the regulation (Division 102.1 (2A), Criminal Code Act 1995). The regulation becomes ineffective after two years (Division 102. 1 (3) Criminal Code Act 1995). It may be repealed before it ceases to have effect or a new regulation may be passed on the same subject before or after the current one lapses. If the Minister is satisfied that an organization is no longer involved in terrorism, he must publish that finding by notice in a gazette, and the regulation specifying the organization as a terrorist organization becomes null and void. If the Minister is satisfied on reasonable grounds that an organization is involved in terrorism, he may make a public announcement stating that a regulation would be passed specifying the organization as a terrorist organization. The regulation would take effect from the date of the announcement. A copy of the announcement must be published on the internet and in a newspaper circulating in each state in Australia. The specified organization may apply to the Minister for a review of his decision, and if he is satisfied with the application, he must publish it by notice in a gazette as earlier stated. The Parliamentary Joint Committee on the Australian Security Intelligence Organization, Australian Secret Intelligence Service and the Defence Signals Directorate, is required to review (a) regulations specifying organizations as terrorist organizations and, (b) the provisions in the Criminal Code Act 1995 under which organizations are specified as terrorist organizations, and report its comments and recommendations to each House of the Parliament. In effect, the power to declare an entity a terrorist organization is subject to Parliamentary review. In 2017, the Governor-General of the Commonwealth of Australia passed another regulation, the Criminal Code (Terrorist Organization-Boko Haram) Regulations 2017, specifying Boko Haram as a terrorist organization.
The Lord’s Resistance Army, The Lord’s Resistance Movement, Allied Democratic Forces, and Al-Qaeda, are specified as terrorist organizations in the Second Schedule of the Anti-Terrorism Act of Uganda, 2002. By Section 10 (2) of the Anti-Terrorism Act, the Minister of Internal Affairs, may by statutory instrument, made with the approval of the Cabinet, amend the Second Schedule. The amendment must be laid before Parliament within 14 days after been published in the Gazette, and may be annulled by Parliament within 21 days. Section 10 (5) of the Act empowers the Minister of Internal Affairs, by statutory instrument, to declare any terrorist organization dissolved; provide for the winding up of the organization; and provide for the forfeiture of the assets of the terrorist organization to the state. In effect, an organization can be designated and proscribed as a terrorist organization by including its name in the Second Schedule of the Anti-Terrorism Act. The procedure to designate a body as a terrorist organization is the prerogative of the Minister of Internal Affairs; the Cabinet, and the Parliament. There is no provision under which the designated organization may apply for review.
Kenyan law uses the term ‘specified entity’ for terrorist organization. Under Section 3 (1) of the Prevention of Terrorism Act 2012, where the Inspector-General of the National Police Service has reasonable grounds to believe that an entity committed or is prepared to commit an act of terrorism, he may recommend to the Cabinet Secretary responsible to matters relating to internal security, that an order be made declaring the entity to be a “specified entity”. Before making that recommendation, the Inspector-General must give the affected organization the opportunity to demonstrate why it should not be declared a specified entity (section 3 (2)). If the Cabinet Secretary is satisfied that there are reasonable grounds to support the Inspector-General’s recommendation, he declares by an order published in the Gazette, that the entity is a specified entity. The Cabinet Secretary must communicate in writing, to the entity, his decision to make it a specified entity and the reasons for his decision (section 3 (4)). The specified entity may apply to the Inspector-General for the revocation of the order, and if refused, the specified entity may apply to the High Court for a review of the decision of the Inspector-General (section 3(5), (6) and (7)). The Nigerian TPA lacks a comparable provision for High Court review or for the affected organization to be heard before the proscription order is made.
The Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, uses the term, specified entity, for terrorist organization. By section 66B (1), where the Minister of Home Affairs is satisfied on information given to him by a police officer, that an entity has knowingly committed or attempted to commit a terrorist act, the Minister may by order published in the Gazette declare the entity to be a specified entity. Within 60 days of the publication of the order in the Gazette, the specified entity may submit a written application to the Minister for the revocation of the order (section 66B (6)). The Minister must revoke the order and publish the order of revocation in the Gazette, if he decides that there are reasonable grounds for revoking it. If he decides that there are no reasonable grounds for revocation, he may within 60 days, inform the applicant of his decision (section 66B (7)). The decision of the Minister is final (section 66B (7)). Under section 66B (9), the Minister is required to review the order specifying an entity as a terrorist organization, every six months to determine whether there are still reasonable grounds for the order to remain valid, and if there are no such reasonable grounds, he must immediately revoke the order. As already stated, there is no right of appeal against the decision of the Minister.
The United Kingdom
Under section 3 (1) of the Terrorism Act 2000, an organization concerned with terrorism is proscribed if it is listed in schedule 2 of the Act. The Secretary of State may by an order, add or remove an organization from the schedule (section 3 (3)). The proscribed organization or any person affected by the proscription order may apply to the Secretary of State for an order deproscribing the organization (section 4 (1) and (2). The Secretary of State is required to make regulations prescribing the procedure for deproscription applications (section 4 (3)). Section 5 of the Act establishes a commission known as the Proscribed Organizations Appeal Commission, authorized to hear appeals against the decision of the Secretary of State refusing a deproscription application. A party may appeal against the decision of the Proscribed Organizations Appeal Commission on questions of law, to the Court of Appeal in England and Wales, the Court of Session in Scotland, or the Court of Appeal in Northern Island (section 6).
A blend of the Kenyan and the UK positions on proscriptions provide safer guarantees for the protection of civil liberties than the present rules in the Nigerian Terrorism Prevention Act 2011 do. The procedures are transparent, simpler, and do not confer upon any arm of government, the sole responsibility of determining which organizations to proscribe. A proscription order should have a lifespan, so that a status review of the proscribed organization is automatically activated periodically.
Amade Roberts Amana, PhD. BL. , Email: [email protected]
Practical Considerations to Negotiate an Enforceable Joint Operating Agreement in Civil Law Jurisdictions (Netherlands: Kluwer Law International, 2020) By Professor Damilola S. Olawuyi, LL. B (1st Class), BL (1st Class), LL.M (Calgary), LL.M (Harvard), DPhil (Oxford), Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti, Nigeria, www.damilolaolawuyi.com. & Professor Eduardo G. Pereira, LL. B (Brazil), LL.M (Aberdeen), PhD (Aberdeen),www.eduardogpereira.com
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