The Rule Of Law And The Fight Against Terrorism In Africa: Balancing National Security And Human Rights Protection By Agbo J. Madaki, PhD

INTRODUCTION

Terrorism which stems from the Latin word terrere¹ is not a new phenomenon. We  may safely state that terrorism is almost as old as man’s willingness to use violence to affect changes in the polity. The sicarii, a Jewish   extremist group who murdered enemies and collaborators in their campaign to oust their Roman rulers from Judea in the first century is recorded as one of the earliest terrorist sect².Another ancient group whose mode of operation fits the current definition of terrorism was the Hashhashin ( from whom the word “ assassin” is derived) who  were a secretive *Prof.Agbo.J.Madaki was the Program Chair, Private and Business Law, School of Law, American University of Nigeria, Yola, Nigeria. He has lectured extensively in Nigerian and Kenyan universities.

¹Oche, 0 & Dokubo, C ‘’The Scorge of Globalized Networks of Terror and Nigerian’s Security’’  quoted in Oviasogie, F.O ‘’State Failure, Terrorism and Global Security: an Appraisal of the Boko Haram Insurgency in Northern Nigeria’’

(2003) Journal of Sustainable Society Vol. 2, No.1 2013, P.2

²Zalman, A . The History Of Terrorism   archived from www.terrorism. about.com accessed 25/8/2015

Islamic sect active in Iran and Syria from the 11th to the 13th century.^[1] Albeit modern terrorism is traced to the French revolution of 1893 where enemies of the revolution were killed as a necessity in the transformation of the monarchy to a liberal democracy.⁴ This regrettably, laid the foundation of modern terrorism, a belief anchored sometimes on the need of ushering a better society.  

Since then the resort to the use of force or violence by individuals or group and even government to achieve certain ideological goals has become wide spread, so much so that hardly is any country spared from the ugly scars of terrorism. Some of the notorious acts of terrorisms in recent time include the bombing and sinking of the ship carrying Jewish immigrants on the 25^th November 1940 at Haifa, British Palestine, and the 1978 arson at a theatre in Abadan, Iran where 477 persons were killed, the 1988 mid- air bombing of Pan Am flight over Lockerbie, Scotland killing all of the 270 passengers   and  the  September 11, 2007 crashing of  hijacked planes  into the World Trade Centre, New York  , the  Pentagon in Alexandria, Virginia  and at a site in  Pennsylvania all in the  U.S.A^[2] killing 2993 persons. The September 11 attack also called 9/11 was credited to Al- Qaeda, a militant Islamic organization. It remains the most deadly single terrorist attack in recent history as virtually all countries were affected. More than 90 countries lost their citizens in the attacks^[3][4].

On the African continent the activities of various terrorist groups come to mind. In September 2013 members of al – Shaabab attacked the Westgate Mall at the heart of Nairobi killing 71 persons and leaving over 200 others in critical conditions.⁷ Other incidence include the April, 2014 abduction of about 200 girl from their dormitories in the dead of the night in the town of Chibok in north eastern Nigeria by heavily armed Boko Haram members⁸ and the  2015 hijacking of a plane with224 people on board in Egypt by the Province of the Islamic State. The plane crashed in Northern Sinai killing everybody on board.^[5]

The fight against terrorism pits national security against the doctrine of rule of law.

This collision course is inevitable. Dicey’s conception of the rule of law connotes that in terms of the equality before the law, no man is above the law. Regardless of what an individual’s rank or condition is, he is subjected to the ordinary law of the realm and is bounded to the jurisdiction of the ordinary tribunals. As a result, whether an ordinary private citizen or a state official breach the same law, they would be treated in the same way. This is founded on Dicey’s belief that the common law affords greater protection to the citizens than a written constitution.^[6]

According to Dicey the rule of law curbs arbitrary power, it protects individual liberty, and it protects human dignity. To him, the protection of human dignity is the greatest.^[7]Expatiating further on the advantages of rule of law Morton highlighted some of the following:

1. Enhances the freedom of the individual

Where rule of law operates, government are expected to allow the expression of divergent views in the society. The government is also expected to ensure the freedom of the mass media, which includes the radio, television, newspapers and lately the news portals and social media.

1. Promotes qualitative life

Where rule of law operates to the letter, the quality of life of the citizens is greatly enhanced, this is because the modern definition off rule of law encourages the creation of the social conditions that would make it possible for the citizens to enjoy the social order. Once this is achieved, the quality of the life of the individual would be enhanced.

1. Preserves the Constitution

Another advantage of the operation of rule of law is that it helps to preserve the constitution of the land. The constitution ultimately is the law of the land and rule of law ensures the certainty of the law. This being so, as the rule of law operates, the constitution is also preserved.

1. Prevents arbitrariness and dictatorship.

Where the rule of law operates properly, the citizens become very aware of their rights and liberties. This way they are able to know if their rights are being trampled upon or not. It also help them to check arbitrariness on the part of government appointee and the rise of dictatorship.^[8]

Rule of law has found normative expression under international law as well as municipal law. Articles 7, 8 and 9 of the Universal Declaration of Human Rights provide the rights of equality before the law and for equal protection of the law, right to effective remedy by competent national tribunals for acts of violation of the rights granted by the constitution or law and the right preventing arbitrary arrest and detention.^[9]

The rule of law is an enduring core value in Western civilization. We value it for protecting us from the arbitrary exercise of state power, and for allowing us to live by well-defined and established laws. That core value always comes under stress when national security emergencies arise. During times of war, individual liberties and certain protections under law may be limited. Society accepts this temporary loss of rights as a reasonable cost to defend the homeland and defeat an adversary.^[10]

This accord with Article 4 of the International Covenant on Civil and Political Right which provides:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures to derogate from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, or social origin.

As necessarily as this may be when properly resorted to, it should never become a blank cheque for flagrant violation or breaches of rule of law as “the reason to maintain a strong rule of law, even in the face of a continuing national security emergency, is not just to preserve a “national value.” A strong rule of law is essential to providing a society with the national security it demands.”^[11]

2.0 DIALECTICAL DIAGNOSIS OF TERRORISM 

The word terrorism has never been given to any easy definition because of the shifting nature of the crime. One thing that has always been certain however, is that terrorism is a grave crime. Many scholars, governments and institutions have offered definition of terrorism.

The Black’s Law Dictionary defines terrorism as “the use or threat of violence to intimidate or cause panic, especially as a means of affecting political conduct”¹⁶. This emphasis on the attainment of political goal though not exhaustive, finds more support.   Cline and Alexander also define terrorism as the deliberate employment of violence or the use of violence by sovereign states as well as some national groups, assisted by sovereign states in order to attain strategic and political objectives through the violation of law¹⁷

This definition by Cline and Alexander does not hold true in all circumstances as it wrongly assumes that all acts of terrorism are either carried out by state actors or by other groups at the behest of sovereign states.

• Bryan A. Garner,Black’s Law Dictionary, 8^th Edition, (Ed),( Thomson West (Minnesota) 2004) 1512
• ¹⁷Quoted in Oviasogie, F.O ‘’State Failure, Terrorism and Global Security: an Appraisal of the Boko Haram

Insurgency’’. P21

The United States Department of Defense (USDD) define terrorism as the “calculated use  of  unlawful violence or threat of unlawful violence  to inculcate fear, intended to coerce or to intimidate government or society in the pursuit of goals that are generally political, religious or ideological”. The United States Department of States (USDS) took it a notch higher when it defined terrorism as “premeditated politically motivated violence perpetrated against non- combatant targets by sub- national groups or clandestine agent, usually intended to influence an audience^[12].

Even the United Nation (UN) admitted the difficulty of arriving at a comprehensive definition of terrorism by the international community. Be that as it may, in 1994 the General Assembly Declaration of Measures to Eliminating  International Terrorism, set out in its resolution 49/60, defined  terrorism   to include  “criminal act intended or calculated to provoke a state of terror in the general public, group of persons or particular  persons for political purposes  and that  such act are in any circumstances unjustifiable whatever the consideration of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.”^[13]

Drawing from the challenges of definition, the African Union (then OAU) chose a more elaborate and all-embracing definition of terrorism. Article 1(3) of the OAU Convention on the Prevention and Combating of Terrorism²⁰  defines terrorist action to mean:

1. a) any act which is a violation of the criminal law of a state party and which may endanger the life, physical integrity or freedom of, or cause serious injuries or death to, any person, any member or persons or group of persons or may course damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to:
2. i) Intimidate , put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof to do or abstain from doing any  act or to adopt or abandon  a particular, standpoint or to act according to certain principles; or ii) Disrupt public service, the delivery of any essential service to the public or to create a public emergency, or

²⁰ The Convention On The Prevention and Combating Of Terrorism (The Algiers Convention) was adopted In July

1999  in Algeria at The 35^th Ordinary Session of the A.U Assembly of Heads Of States and Government. It Entered

Into force On 6^th December 2002

iii) Create general insurrection in a state.

1. b) Any promotion, sponsoring, contribution to, command, aid, incitement , encouragement, attempt, threat, conspiracy , organizing, or procurement of any person with the  intent to commit any act  referred to  in paragraph

(i)  to (iii).

From a combine reading of the various definitions, we are able to distill some common denominators of terrorism. Terrorism therefore is the use or deployment of violence in a criminal manner on civil and civilian target calculated at instilling fear or to provoke a state of terror with the intention of  achieving goals that could be ideological or even more.

Many countries as a result of the seismic effect of the September 9/11 attacks on strategic targets in the U.S and other acts of domestic terrorism, have enacted legislation on terrorism. In Nigeria it is the   Terrorism Prevention Act 2011,^[14] in Kenya it is the Prevention of Terrorism Act 2012 and at the regional level, we have AU Convention on the Prevention and Combating of Terrorism.

From the methods of operation of terrorists and the sophistry with which they carry out their acts, terrorism transcends national boundaries and therefore may be classified into domestic, international and cyber terrorism. Domestic terrorism occurs within territorial jurisdiction of a state and often times against one’s own government.^[15] International terrorism on the other hand occurs primarily outside territorial jurisdiction and transcends national boundaries. It is remarkably distinctive by the means by which it is carried out, the people they set out to intimidate or the place where the perpetrators operate or seek asylum^[16]

One of the triggers of international terrorism has been attributed to globalization which in turn has encouraged and facilitated   international migration of skilled and unskilled labor^[17]

Another factor which we have identified as fueling terrorism across bounders is the influx of refugees to host countries made possible by the application of the Refugees Convention of 1957

A good example is the infiltration of Al-Shabab terrorists into refugees’ camps in Kenya and the rise of terrorism within that country.

Cyber terrorism and the potency of this type of terrorism remains underestimated in most of parts of the word. It is committed by using computers to make unlawful attacks or threats of attacks against computer networks and electronically stored information   and actually causing the target to fear or experience harm ^[18] It is also the politically motivated use of computers and information technology to cause severe disruption or widespread fear.

Terrorism is a major threat to international peace as the world now is gripped on a continuous basis with the fear of it and indeed this has eroded trust and confidence in inter-personal relationship thus increasing racial and cultural profiling. To repeat the obvious, according to Elu and Price “terrorism has become a bloody and robust venture around the world, which is not only a challenge for national and international policy makers, but also an issue for present and future national security.”²⁶

3.0 TERRORISM IN AFRICA

3.1 The “Terrorism Knowledge Base” database indicates that the top ten terrorist groups in the world are located in Africa and South Asia. In recent years, both of these regions seem to be fertile breeding and cultivating grounds for terrorist groups that want to relocate. Indeed, a recent study reveals that most lethal effective perpetrators groups from 2009 to 2012 are based in Africa.^[19] Africa and South Asia have long histories of breeding terrorist groups, and these groups have high-level of activities/incidents. Groups such as Al-Qaeda, Abu Nidal, Algeria’s Armed Islamic

Group, the Lord’s Resistance Army, and the Communist Party of Nepal-Maoist are housed in Afghanistan, Iraq, Libya, Syria, Algeria, Sudan, Uganda, and India. Boko Haram operating in Nigeria and al – Shaabab in East Africa are two of the most deadly terrorist groups operating in Africa.

We shall now deconstruct some of the terrorist groups in the continent. The Table below shows clearly that no African country is spared the acts of terrorism.

The Table reports for each African country, per capita gross national income (GNI), its Human Development Index (HDI) ranking, and the number of terrorists’ attacks between 1980 and 2013.

We shall now examine within the context of this paper terrorism and counterterrorism in select African countries; Nigeria, Kenya and Egypt.

3.1.1 The Book Haram Insurgency in Nigeria

Nigeria as at 2015 was ranked 7th in the Global Terrorism Index (GTI). ^[20]  This poor ranking out of 158 countries reveals a disturbing trend. Nigeria according to the GTI of 2018 is among the five most impacted countries.^[21] Nigeria is considered as one of the most terrorized countries in the world. It is no gain saying that this unenviable position of Nigerian on the GTI can rightly be attributed to the Boko Haram

Insurgency. Our Assertion finds credence in a report in the Nation Newspaper of August 1^st 2012^[22] which stated that out of 978 terrorist attacks in Africa in 2011, Boko Haram was responsible for 138 attacks recorded in Nigeria.^[23]

The north east part of Nigeria from where Boko Haram was conceived historically has always been the hot bed of political and religious radicalism. This is more pronounced around the present day Bornu State.

What is today known as Boko Haram is actually an Islamic fundamentalist group going by the name Jama’atAllalSannalidda’awatiwal-Jihad which translates to ‘’the

Association of the People of the Sunna for Proselytisation and Armed struggle’’. However, the group is popularly known as Boko Haram due to its opposition to secular and westernizing influences^[24] . .

Tracing the metamorphosis of Boko Haram to armed insurgency, Adam Higazi wrote

“Boko Haram emerged after breaking away from the reformist salafi/wahhabi groups in northern Nigeria that since the late 1970s have been challenging the established sufi order, the Tijamiyya and Qadiriyya. The ideology of Boko Haram draw selectively on Salafi ideas which are diverse but hold that Muslims should live according to the rules and modes of conduct established by the Prophet Muhammad(PBU) and the first three generation of his followers… the Boko Haram ideology, condemning secular education and any government or civil service work, deviates from salafi doctrine.^[25]

However, the group which emerged around 2001 purely for the propagation of their own understanding of Islam regrettably and in a sad twist of faith mutated and evolved into a terrorist group after the capture and extra-judicial killing of the leader of the group, Mohammed Yusuf by the Nigerian police. When Mohammed Yusuf was captured by the military and handed over to the police he was unarmed.^[26]

This extra judicial execution of the leader of the group stoke the fire of revenge in the group and that was the real beginning of the insurgency of which end is not in sight even many years after. Kate Meagher shares this view too when she state The shift to terrorism followed the killing of Yusuf in police custody and the deaths of 700 of his followers in 2009 in a clash with police. Boko Haram returned as a more aggressive terrorist organization in 2010 under the leadership of Abubakar Shekau. More violent attacks on churches, drinking places, Muslim critics and schools were accompanied by new tactics such as suicide bombing and kidnapping.^[27]

The group with earlier success became more vicious and daring in methods, scale of attacks, geographical spread and selection of targets.^[28] In August 2011 they extended their attacks outside the comfort zone of north east Nigeria and launched a devastating attack on the U.N. Headquarters in Abuja, thus internationalizing their act. It was the first suicide bomb attack in Nigeria.

Keeping tab on Boko Haram attacks across northern Nigeria is no easy task. On April 14^th 2014 Boko Haram Insurgent stormed a Federal Government owned secondary school in Chibok and abducted over 276 school girls, the fate of whom remains unknown for a long time.^[29] This singular act drew the ire of the international community including world leaders who not only condemned the abduction, but offered to help Nigeria rescue the girls. Gladly most of the Chibok girls have regained their freedom but five years after the attack, more than 112 girls are still missing.^[30]

What seems to be the deadliest attack by the Boko Haram occurred in early January of 2015.  In a sustained attack on Baga, a town on the border with Chad, the insurgent seized a military base. According to Amnesty International, the town was razed down and as many as 2,000 people were killed. Most of the victims were children, women and elderly people who could not run fast enough.^[31]

3.2. TERRORISM IN KENYA

Terrorist attacks in Kenya obviously predates Al-Shaabab and can be traced to 1975.

Prior to the country’s intervention in Somalia in 2011, terrorism had claimed about 300 lives.^[32]

Al – Shaabab is the largest terrorist network in East Africa with active presence in Somalia, Kenya, Tanzania, Mozambique and even Yemen. The full name of the group is Harakat al – Shabaab al- Mujahideen, translated loosely to mean “ Mujahideen Youth Movement” or “ Movement of Striving Youth.” It is a jihadist fundamental group based in East Africa with strong link to Al – Qaeda.^[33]Somalia remains the operational headquarters of Al-Shabaab with the group at a point calling the shot from Mogadishu and large portion of the Somali country-side. Analysts say the forerunner of al-Shabaab, and the incubator for many of its leader, was al-Ittihad al-Islami (AIAI, or “Unity of Islam”), a militant Salafi group that reached it apogee after the fall of Said Barre in 1991.^[34]

The Center for International Security and Cooperation has catalogued some of Al-

Shabaab deadliest attacks to include the following;

1. In March 2007 a man named Adam Salam Adam used a car bomb to carry out a suicide attack against Ethiopian soldiers in Mogadishu which claimed 73 lives.
2. In October 2008 Al-Shabaab conducted five simultaneous suicide car bombings in the cities of Hargeisa and Bosasso, targeting UN and government buildings killing 29 people and wounding 36 others.

• July 11, 2010 Al-Shabaab conducted two simultaneous suicide bombings in Kampala, Uganda. One took place at an Ethiopian restaurant, while the second occurred at a rugby club with a combined death toll of 74 with 84 wounded.

1. September 21, 2013 Al-Shabaab gunmen attacked the Westgate Mall in

Nairobi, Kenya, triggering a four-day siege by government forces killing 68 people and wounding 175 others.

1. In June 2014 the group attacked several targets in the Kenyan town of Mpeketoni, including a police station, a bank, several hotels, and a hall in which people were viewing the World Cup. The next day, gunmen conducted attack on the nearby village of Poromoko. 49 people were

killed.

1. November 2014 the group attacked a bus with sixty passenger traveling from Kenya’s Mandera to Nairobi. The militant executed passengers who

could not recite Koran verses as well as those who resisted the attack. 28 were killed.

• April 2015 Al-Shabaab gunmen attacked Garissa University College in

Kenya, targeting non-Muslim students killing 131 students.

• In January 2016 roughly 200 Al-Shabaab militants attacked an AMISOM base in el-Ade, Somalia, beginning with a suicide bomb attack and continuing with an assault by gunmen. It has remained the country’s greatest military defeat since independence in 1963. Observers deemed the attack a “massacre.” 141 were killed.

1. On October 14, 2017 in what many Somalis considered their 9/11, two truck bombs exploded in busy districts of Mogadishu. Entire buildings and streets were severely damaged in the attack. 512 people were killed, 312 wounded with 62 declared missing.
2. In January 2019 Al-Shabaab militants besieged the five-star DusitD2 hotel in Nairobi, Kenya for 19 hours. The group claimed that the attack was retaliation for U.S. President Donald Trump’s increased airstrikes in Somalia and the move of the U.S. embassy in Israel to Jerusalem. 21 people were killed.^[35]

Kenya would appear to have borne the larger brunt of the attacks. The reason for this is not far-fetch. Kenya has always being perceived as a lackey of western powers. However, analysis of more recent trends have focused on Kenya’s military role in the region and the widespread recruitment of Kenyan youth into terrorist activities. Studies on the rise of extremist recruitment suggest that radicalization in Kenya is driven by perceived marginalization, socioeconomic inequalities, and high levels of unemployment.^[36]

3.3 TERRORISM IN EGYPT

Egypt is not insulated from the wave of terrorism sweeping across Africa. Since the assassination of President Sadat in 1981, Egypt has continue to witness acts of terrorism, often times targeted at the jugular of the Egyptian economy; tourism and also at military and religious targets. Not until recently, Egypt ranked very high on the Global Terrorism Index. It is asserted that “Ayman Al–Zawahiri, an Egyptian doctor and leader of Egyptian Islamic Jihad group, is believed to be the mastermind behind the operations of al Qaeda.^[37] Four out of 30 people on the United States

Federal Bureau of Investigation “most wanted” terrorist list are Egyptian.^[38]

One of the most active group in the country is Al Jama’a Al Islamiya which has been blamed for many terrorist acts in Egypt.^[39] On 18^th November 1997 the group attacked tourists at the Temple of Hatshebsut leading to hundreds of deaths. However,  Wilayat Sinai is the largest armed violent group in Egypt, and reportedly has only around a thousand members.^[40]

One terrorist attack in Egypt which concomitantly altered forever Egyptian counterterrorism strategy was the Luxor massacre of 17^th November, 1977 which led to the death of 62 persons mainly tourist. The location of the senseless and heartless attack was at Deir el-Bahri an archeological site and a major tourist destination. Recanting the gory incident, an online military source reported as follow:

In     the    mid-morning    attack,    six    gunmen    from     the     Islamic

Group and Vanguards of Conquest massacred 62 people. The six assailants were armed with automatic firearms and knives, and disguised as members of the security forces. They descended on the Temple of Hatshepsut at around 08:45. They killed two armed guards at the site. With the tourists trapped inside the temple, the killing went on systematically for 45 minutes, during which many bodies, especially of women, were mutilated with machetes. They used both guns and butcher knives. A note praising Islam was found inside a disemboweled body. The dead included a five-year-old British child and four Japanese couples on honeymoon. The attackers then hijacked a bus, but ran into a checkpoint of armed Egyptian tourist police and military forces.^[41]

Whatever political mileage was sought to be gained from the attack became wasted as there were widespread public condemnation of the attack.

Perhaps the most notorious case in the insurgency in Egypt is the assassination of Prosecutor General Hisham Barakat, who died on 29 June 2015 after a bomb exploded in his car as he travelled to work.^[42]

Some of the notorious cases of recent terrorist attacks include the following:

• On June 29, an explosive device targeted Prosecutor General Hisham Barakat’s motorcade shortly after Barakat departed his home in Heliopolis. Barakat succumbed to his wounds later that afternoon and nine other people were injured. A claim of responsibility by a group that calls itself Giza Popular Resistance could not be confirmed.
• On July 1, as many as 70 ISIL-SP operatives simultaneously attacked several police and security installations in the Sinai’s Sheiykh Zuweid region. The multifaceted attack resulted in the deaths of 35 people.
• On July 11, a bomb heavily damaged the Italian Consulate in downtown Cairo and killed one civilian. Islamic State-Egypt claimed responsibility for the attack on social media.
• On July 16, a missile was launched from the shore in Sinai and hit an Egyptian naval vessel and set it ablaze. ISIL-SP claimed responsibility.
• On July 22, Croatian citizen Tomislav Salopek, who worked as a topographer for a French energy company, was kidnapped in the Western Desert, west of the Cairo suburb of 6th of October City. On August 5, in a video posted on a Twitter account associated with ISIL-SP, the group claimed responsibility for the abduction and demanded the release of all female Muslims in Egyptian prisons within 48 hours in exchange for Salopek. Salopek was ultimately beheaded; ISILSP claimed responsibility for the killing.
• On August 20, a VBIED^[43] attack occurred adjacent to a National Security Sector (NSS) building in Cairo’s Shubra El Kheima neighborhood. The explosion resulted in substantial damage to the exterior of the building and injured 30. Islamic State-Egypt claimed responsibility via social media.
• On October 31, an A-321 Airbus operated by the Russian charter company Kogalymavia crashed 23 minutes after taking off from Sharm El-Sheikh International Airport, killing all 224 people on board. While the official investigation remained ongoing at year’s end, ISIL-SP claimed responsibility. Russian and other international investigators have claimed that an explosive device was responsible for the crash.^[44]

4.0 CAUSES AND CONSEQUENCES OF TERRORISM IN AFRICA

4.1 CAUSES

There are many explanations for why terrorist attacks occur and some attribute it to poor economic conditions, which is consistent with the popular theory of deprivation and poverty; low education attainment, and historical events such as slavery and ethnic conflicts have also been used to explain terrorism.

Other than those reasons, the high handedness with which the counter- terrorism measures are implemented by the military, resulting into equal deaths of innocent civilians, rather draws sympathy to terrorist groups.

4.1.1 Politics and Ethnicity

Politics and ethnicity were the leading perceived causes of violent extremism, according to 22 percent and 16 percent of respondents, respectively. Ethnicity is a major instrument for political mobilization in Kenya. It also forms the basis for patronage, resulting in ethnic inequalities in the distribution of government jobs and other opportunities. Of the remaining respondents, only 5 percent cited religion as the main cause. This finding is significant, as it negates the assumed relationship between Islam and terrorism. Respondents also noted poverty, unemployment, and inequality as contributors. The link between economic status and violent extremism is important in prioritizing responses.^[45]

In Kenya to be specific, research has shown that several factors have contributed to

Al-Shabaab’s attacks in. These include the country’s proximity to Somalia, the visibility of US and Israeli interests, and Kenya’s role in the US-led global war on terrorism. But most notable is Kenya’s military intervention in Somalia aimed at reducing the threat posed by Al-Shabaab.^[46]

4.1.2 International Migration and the Refugee Crises.

Most countries in Africa and some in the Middle East are engulf in one crisis  or the other leading to mass displacement of millions of people and thus worsening the refugee situation. This available pool of psychologically traumatized and very vulnerable people become easy preys for recruitment into violent extremist groups. This is made possible as a result of the desperate and seemingly hopeless situations they are thrown into and therefore more prone to radicalization. Presenting his new report to the UN General Assembly, the UN expert on counter-terrorism and human rights warmed that migration policies which are restrictive or violate fundamental human rights may in fact create conditions conducive to terrorism.^[47]

4.1.3 Religious and Violent Extremism

Religious influence impacts heavily in the philosophical underpinning of terrorism. The imprint of religion on terrorism stands out clearly for all to see. In Egypt Islamic writer Sayyid Qutb is credited as the inspiration for extremism trough his writings. In his  Maalin fi al – tariq (Milestone) advocates for armed jihad to bring about the kingdom of God on earth and to eliminate the kingdom of man.^[48] Most of the terrorist attacks in Egypt were traced to Islamic extremism groups.^[49]

As a result of acts of terrorism perpetrated in many parts of the world, a high number by violent and radical Islamic groups, many people have reached the conclusions that Islam is a violent religion and wrongly assert that the Quran supports violence, consequently the inclination to terrorism. This conclusion is a totally wrong reading of the complex psychology of the terrorist. As a matter of fact the Quran condemns violence. Quran 5:32 provides that ‘’whosoever kills an innocent human beings, it shall be as if he has killed all mankind, and whosoever saves the life of one, it shall be as if he has saved the life of all mankind’’.

Gladly, steps are being taken to wean the youths of the over bearing influence of religious leaders with violent extremist views. Recently the Kenyan government launched the National Strategy to Counter Violent Extremism. The aim was to step up efforts to counter violent extremism by dealing with the radicalization of young people. It was also designed to encourage efforts to rehabilitate, repatriate, and reintegrate foreign terrorist returnees. A number of civil society organizations, such as Haki Africa, are now addressing radicalization and violent extremism in the country.^[50]

4.1.4 Ratio of Success and Benefits.

Most criminal activities are executed after examining the risk – benefit factors, the likelihood of success and the attendant benefits are elixir for the execution of their plans. In this wise, terrorism is no exception. Enders and Sanders in their work found that terrorist incidents such as bombings, assassinations, kidnappings, and skyjackings were reduced through intervention policies that lower the benefit–cost ratio of terror, given the high probability of unsuccessful attempts after the implementation of such counterterrorism policies.^[51] Other studies have also confirmed that the frequency of aerial hijackings decline when the probabilities of success decreased.^[52]

These studies also find that the frequency of aerial hijackings decline when the probabilities of success decreased. Other studies by Becker ^[53]  and Erhlich ^[54] also show that the probability of apprehension, convictions, and long-term incarceration served as a deterrent for terrorist hijacking.

4.1.5 Corruption in Military Defense Spending 

It has been argued by researchers that lack of transparency and accountability in defense budget and spending in Africa fuels terrorism on the continent. In many African countries security expenditures are shrouded in secrecy based on the warped hypothesis that public accountability of defense spending is antithetical to national security.

According to Transparency International (TI), every single African country surveyed scored failing or near-failing grade when it comes to preventing graft in their defense sectors.^[55] The report further states:

“Defense spending is on the rise across the continent, but without better tracking on how the money is spent, there is little to ensure that it will go to the areas that need it most in a new era of terror attacks, namely counter-terror and security programs. With such limited oversight on military spending, there are many opportunities for corruption and graft that can in turn contribute to rising insecurity in the region”^[56]

Corruption in military spending in the fight against terrorism can lead to blackmarket arms sale to terror groups, or in some cases, bolster funding for those groups. The proliferation of small arms and even lethal weapons across the continent lends credence to this assertion.

4.2 CONSEQUENCIES OF TERRORISM

Terrorism breeds consequences of unimaginable proportions. The activities of the various terrorist groups in Africa have bled the continent so much so now the continent is anemic .Not only have these groups created national and regional security threats in their own right, but their strategies have also interacted with and exacerbated other human security challenges in the region, such as internal displacement, forced migration, porous borders, food insecurity and various forms of transnational organized crime. These challenges have compounded existing, development, justice and governance deficits.^[57]

4.2.1 Threat to International Peace.

Terrorism is a major threat to international peace as the whole world now is gripped on a continuous basis with the fear of terrorism and indeed this has eroded trust and confidence in inter-personal relationship thus increasing racial and cultural profiling.

To repeat the obvious, according to Elu and Price “terrorism has become a bloody and robust venture around the world, which is not only a challenge for national and international policy makers, but also an issue for present and future national security.”^[58]

4.2.2 Increase in Military Budget.

As a result of escalating waves of terrorism globally, combating the scourge has become a high priority for many nations including nations that were initially complacent. According to a study conducted by the Stimson Centre, from 2002 to 2017, the United States spent 16% of its entire discretionary budget fighting terrorism. According to the study, the amount spent on counter-terrorism in the period under review was $2.8 trillion. This humongous amount is more than the combined defense budget of Russia, India and South Korea. ^[59] While the US can conveniently spend this much on counter-terrorism, in Africa fighting terrorism comes at a great cost to national development, as scarce resources are appropriated to defense.

While military expenditures gladly is on the decrease in Africa, however, military spending in Africa in 2018 was still 9.2% higher than in 2009. Military expenditures in North Africa in 2018 peaked at $22.2 billion. On the other hand, in sub-Saharan Africa, military spending was $18.4 billion  in the same year.^[60]

Nigerian military spending continues to increase annually to the detriment of other key development areas like health and education. Military spending rose from Naira 224 Billion in 2009 to N381 Billion in 2013 representing 9.78 of the total national budget for the year.^[61]

4.2.3 Education

The massive displacement of people from their ordinary place of residence has impacted negatively on education thus increasing the number of out-of-school children in Africa.

We need to state that education is a fundamental right and is core to the enjoyment of all other human right as properly stated by the Indian Supreme Court in Jain v.

Union of India^[62] where it was   observed that:

“Right to life’ is the compendious expression for all those rights which the court must enforced because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education”

That education is kernel to the realization of most rights is well captured in Article 13 (1) of the ICESCR. The Article provides-:

The states parties to the present covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnics or religious groups, and further the activities of the United Nation for the maintenance of peace.

Terrorism has led to massive displacement and dislocation of millions across the continent thus worsening the ratio of out of school children.

4.2.4 Tourism

Tourism is a product of modern social arrangements and was believed to have its origin in Western Europe in the 17^th century.^[63] It is the act and process of spending time away from home in pursuit of recreation, relaxation and pleasure.⁷² The contribution of the tourism sector to the global economy cannot be underplayed. In fact it is one of the fastest growing economic sectors in the world. In 2017 international tourist arrivals grew by 7% to 1,323 million and generating $1.6 trillion in export earnings. ^[64]

African nations are not exempt from the global tourism industry.  In some countries tourism contributes immensely to the economy of the nations that have identified and prioritized tourism. Major tourism industry players in Africa  are Egypt, Kenya,

Morocco,  South Africa and Tunisia, while the fringe player are countries like Cameroon, Tanzania, Sierra Leone, Cape Verde, Seychelles. To the African economy, tourism had a direct contribution in 2015 of $180 billion while its contribution to the economy of North Africa in the same period was $71 billion.⁷⁴

In the light of the foregoing therefore, terrorism is bound to have a crippling effect on the tourism industry in Africa. “Random acts of terrorism curtail travel activity until the public’s memories of the publicized incidents fade. Persistent terrorism, however, can tarnish a destination’s image of safety and attractiveness and jeopardize its entire tourism industry.^[65] This is exactly what is playing out in Africa.

Following the downing of an airplane carrying Russian tourists which took off from Sham El Sheik airport on 31^st October 2015, Russian and Britain stopped all flights to Sham El Sheik. This led to a sharp drop in tourism income in Egypt from $12 billion in 2010 to almost half in 2016.^[66]

5.0    AFRICA’S APPROACH TO COUNTER TERRORISM

Africa is deeply concerned over the scope and seriousness of the phenomenon of terrorism and the danger it poses to the stability of the region, convinced that terrorism constitutes a serious violation of human rights and impedes   socioeconomic development through destabilization of States. Terrorism cannot be justified under any circumstances and, consequently, should be combated in all its forms and manifestations, including those in which States are involved directly or indirectly. Therefore, resolutely determined to eliminate terrorism in all its forms and manifestations the AU Assembly of States adopted the OAU Convention on the Prevention and Combating of Terrorism on 1st July, 1999 in Algiers and it entered into force on 6th December, 2002.

Article 4 of the convention mandates member states of the African Union to adopt any legitimate measures aimed at preventing and combating terrorist acts in accordance with the provisions of this Convention and their respective national legislation. To this end, many African countries have enacted anti-terrorism legislation aim at eliminating the evil scourge plaguing the continent.

To avoid abuse of the Convention, Article 22 provides:

Nothing in this Convention shall be interpreted as derogating from the general principles of international law, in particular the principles of international humanitarian law, as well as the African Charter on Human and Peoples’ Rights.

Other efforts aimed at combating terrorism within the confines of the rule of law in

Africa include the AU Plan of Action on the Prevention and Combatting of Terrorism (2002) and the African Centre for the Study and Research on Terrorism (2004). All these measures adhere to the general principles of international human rights law and commit states to protect the human rights of all their citizens, including terrorist suspects.

In West Africa, ECOWAS adopted the Political Declaration and Common Position Against Terrorism in 2013 as a regional framework for preventing and combatting terrorism. The declaration calls for the elimination of terrorism in the region but reaffirms states ‘commitments to upholding international law:

All Member States collectively abhor torture and other degrading and inhumane treatment of terrorist suspects, and undertake to strengthen democratic practices and rule of law to ensure due process, fair trial and equality before the law for all citizens. The Political Declaration includes a Counter Terrorism Strategy and Implementation Plan grounded in the rule of law and respect for human rights. It explicitly states that ‘under no circumstances should counterterrorism be used as a justification for the violation of human and people’s rights’. All three of the strategy’s pillars foreground the importance of the rule of law and human rights approaches to combatting terrorism.44

We shall now examine the counter-terrorism measures put in place by the member states the subject of this paper.

5.1 The Nigerian Approach

At the onset of the Boko Haram insurgency, the Nigerian government did not give it the necessary attention it required. The assertion that the Nigerian government initially did not see the potency of the group and therefore ignored earlier report of the activities of the sect is reinforced by Higazi when he stated that ‘‘the Nigerian state did not effectively curb the preaching or stop the movement from spreading’’.^[67]

Government’s initial reaction was the heavy deployment of military force to eliminate and extinguished the sect. This was initially successful as over 700 members of the sect were killed including the leader Mohammed Yusuf.

The Nigerian government adopted a three dimensional strategy to combat the Boko Haram insurgency to wit; employment of hard (military) power, anti-terrorism legislation and dialogue. This strategy is more of a stick and carrot approach.

Hard military action was adopted as the Nigeria police could not match the fire power of the sect. The combined force of the military and police adopted high handedness in their bid to crush the insurgents resulting in the killing of over 700 people including civilians. In carrying out this curtailment action, little attention was paid to the military Rule of Engagement and the Geneva Convention Relative to the Protection of Civilians Persons in Time of war 1949.

With the condemnation that the military high- handedness received from human rights activists and the international community, and the failure of the scorched earth strategy, the government began to weigh other approaches. The evolved strategy focused on public safety and national stability with reliance on technology for intelligence gathering, surveillance and detection.

Expatiating on the new policy Udounwa an army colonel explained that a Joint Military Task Force code named ‘Operation Restore Order I and II’ was established in 2009 to conduct large scale military operations in Borno and Yobe States where Boko Haram was then strongest. Permanent new military units were established in the two states and the National Focal Point on Terrorism (NFPP) was formed bringing under a central operational control over a dozen security agencies and government departments responsible for the implementation of Nigerian’s national security agenda. The activities of the task force were controlled by the Office of the National Security Adviser (ONSA). He conceded that while the strategy achieved some measure of success especially in 2012, Boko Haram remained a potent threat.^[68]

The execution of the strategy was constrained by the obsolete weaponry in the armory of the military coupled with a low fighting morale of the fighting force. The fact of lack of relevant equipment was compounded by the refusal of the US government to sell lethal weapons to Nigeria. The refusal was predicated on U.S. reliance on the Leahy Law which is actually the Foreign Assistance Act ( hereinafter referred to as FAA) 1961 (as amended). Section 620M of the Law prohibits the furnishing of assistance authorized by the FAA and the Arms Export Control Act, (as amended) to any foreign security force unit that is credibly believed to have committed a gross violation of human rights. The term gross violation of internationally recognized human rights includes torture or cruel, inhuman or degrading treatment or punishment, prolong detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the rights to life, liberty or security of persons.^[69]

The glaring inability of the Nigerian state to guarantee the safety of lives and properties of citizens in the affected states galvanized the communities to put together a self-defense militia with the active support of the military under the umbrella of a Civilian Joint Task Force (CJTF) The CJTF achieved some astonishing and spectacular successes in the fight against the Boko Haram insurgency. They are even credited with pushing Boko Haram out of the metropolitan city of Maiduguri forcing the insurgent to dissolve into the country side.^[70]

The effort of the CJTF as commendable as it is, the group is also condemned for carrying out many of the human rights violations pinned on the Nigerian military.^[71] With Federal and state elections approaching in 2015, the Federal Government hurriedly rolled out in 2015 another National Security Strategy to combat terrorism in the country. The strategy is contained in three different documents. National

Security Strategy, Counter Terrorism Strategy and Cyber Security Plan and Strategy.

The new strategy demanded multi-sectorial, domestic and international approaches, efforts and cooperation.

The Terrorism Prevention Act (TPA) 2011 was enacted in 2011^[72]. This Act complements other existing penal laws in Nigeria that punish some limited aspects of terrorism. Section 2 of the Act empowers the courts to declare any entities (be it two or more persons or an organization) proscribed if it participates or collaborates in act of terrorism or if it promotes, encourages or exhorts others to commit acts of terrorism.

The Act as amended prescribes penalties for various terrorism offenses. Section 1(2) of the Act imposes the death penalty for a number of offences. Section 3-25 of the amended Act increased penalties for other offences ranging from fines to life imprisonment.

Section 12 of the Principal Act (as amended) empowers the National Security Advisers or the Inspector General of Police with the approval of the President to seize any fund connected to or being proceeds of act of terrorism. Such funds or property is liable to forfeiture upon process issued by the court following an application made by the Attorney General, the National Security Adviser or the Inspector General of Police with the approval of the President.

All financial institutions are obligated to report within 72 hours any suspicious transactions relating to terrorism to the Financial Intelligence Unit which shall process such information and forward it to the relevant law enforcement agency.

Any breach of this mandatory provision upon conviction can attract a fine of Naira 5,000,000 or a term of imprisonment not exceedingly 5 years for the principal officer of the financial institution or the defaulting officer^[73].

Even without an order from a judge, where a person is arrested under reasonable suspicion of having committed a terrorism related offence under the Act, the National Security Adviser, the Inspector General of Police or a delegated police officer not below the rank of a Chief Superintendent of Police or its equivalent may direct that such a person be detained in custody for a period not exceedingly 24 hours without access to any person other than his medical doctor and legal counsel.

There is in place the Prison Service De-Radicalization Programme implemented by Nigerian Correctional Service (NCS) and the ONSA to change the beliefs, views, values and attitudes of the violent extremist prisoners. There is also the Money Laundering (Prohibition) Act 2011 (as amended) on the prohibiting of financing of terrorism and the laundering of the proceeds of crime. The Counter Terrorism Centre (CTC) (2012) is located within the ONSA and houses the Joint Terrorism Analysis Branch, National Counter Terrorism Strategy, Explosive Devices Analysis Office and the Preventing and Countering Violent Extremism Unit.

The National Action Plan for Preventing Violent Extremism strengthens Nigerian institutions to prevent violent extremism; strengthens the rule of law, access to justice and human rights approach; builds community engagement and resilience; and integrates strategic communication to prevent violent extremism.

5.2 Kenya

As discussed earlier, since 1975 Kenya has had more than her fair share of terrorist attacks. It is the most terrorized country in Eastern Africa and the trend seems not to abate. The upsurge and ferocity of the attacks galvanized the country to prioritize the development of counter-terrorism policies and strategies which according to Mwangi “hinged on many elements including legislation, law enforcement and border security.”^[74] Kenya’s approach to terrorism can best be described largely as militaristic and security-focused.

Kenya’s counter-terrorism legislations include the Prevention of Terrorism Act, Proceeds of Crime and Anti-Money Laundering Act and Prevention of Organised Crime Act. Until 2014, the Prevention of Terrorism Act was the main antiterrorism legislation. The Act   greatly expanded police powers, and allowed the state to create lists of suspected terrorists and terrorist organizations without due process.

For instance, in the aftermath of the 2015 al-Shabaab attack on Garissa University College, two civil society organizations (CSOs) based in Mombasa County had their bank accounts suspended after they were accused of funding terrorism. However, the state was unable to prove the allegations in court. In a 2015 report, the Kenya National Commission on Human Rights (KNCHR) documented over 120 cases of egregious human rights violations, including 25 extrajudicial killings and 81 enforced disappearances, since the start of the crackdown against terrorism in 2013 (KNCHR, 2015). The Anti-Terrorism Police Unit (ATPU), a law enforcement agency, has come to be associated mainly with extrajudicial killings (Human Rights Watch, 2014).

Terrorism Police Unit (ATPU), a law enforcement agency, has come to be associated mainly with extrajudicial killings. Though Kenya is a strong partner of the United States in the fight against terrorism throughout East Africa, the CRT 2005 on Kenya issued by the United States Department of States (USDS) indicted the country of violation of human rights by Kenya’s police and military forces during counterterrorism operations, including allegations of extra-judicial killings, disappearances and torture.^[75]

With more persistent attacks. Especially the Westgate attack, the Government enacted the Security Laws (Amendment) Act 2014. The Security Laws

(Amendment) Act altered 20 existing laws to further strengthen Kenya’s legislative framework to fight terrorism. Positive steps contained in the SLAA include the criminalization of participating in terrorist training, laying out the foundation for a coordinated border control agency, strengthening the mandate of Kenya’s National Counter-Terrorism Centre (NCTC), and broadening evidentiary standards to allow greater use of electronic evidence and recorded testimony in terrorism prosecutions.  Effectiveness remained impeded by limited interagency coordination, resources, and training, as well as corruption among some personnel and unclear command and control.

In September 2016, the Government of Kenya launched a National Strategy to Counter Violent Extremism (NSCVE), which calls for a significant shift in approach, including the involvement of non-state actors. NSCVE emphasizes “soft approaches” such as the provision of employment options, business opportunities, and life skills to reduce the recruitment of youth to violent extremism. The strategy focuses on promoting national and community-level cohesion, constitutionalism, and the rule of law, and enhancing coordination and partnership among people and groups who work on countering violent extremism (CVE), including non-state actors. This approach is in line with UN Resolution 1456 adopted in 2003 and Article 4 of the OAU Convention on Prevention and Combating of Terrorism both of which oblige states to adhere to international human rights, refugee, and humanitarian law in the fight against terrorism.

On the flipside of the war against terrorism in Kenya is the rise in human rights violation and ethnic profiling. This is typically exemplified by the branding of all Somali refugees in Kenya as a security risk. Somali refugees, and refugee camps predominantly occupied by Somalis, are misleadingly described as abetting terrorism. This has allowed the state to normalise counter-terrorism measures among refugee populations.^[76]

As a result, the rights of Somali refugees have been repeatedly violated. The effect of this, combined with the impact of corruption and the securitization of refugees, has led to an increase in the numbers of young people being radicalized.^[77]

5.3 Counter Terrorism Measures in Egypt

Egyptian President Abdel Fattah Al Sisi continued to focus on counterterrorism in Egypt. In the wake of the assassination of Egyptian Prosecutor General Hisham Barakat, the Egyptian government approved a new counterterrorism law, increasing the state’s legal authorities to counter terrorism. The law provides a broad definition of terrorism, to include “any act harming national unity or social peace.^[78] This law only adds to the body of laws that form the corpus of counter-terrorism legislation in Egypt. .Some of the laws include the following legislation:

On August 15, 2015, the Counter-terrorism Law was published in the Official Gazette and went into effect. It had previously been approved by the cabinet on July 1, 2015, during a period in which there was no sitting parliament. The law was retroactively approved by the House of Representatives in a hasty process that involved the  review of 341 decrees in 15 days.^[79]

The law establishes a number of significant punishments including life imprisonment and death sentences for founders and heads of terrorist organizations, five-year prison terms for propagating “ideas and beliefs calling for the use of violence” or inciting terrorism through social media, and fines of 200,000–500,000 Egyptian pounds for publishing “false news” about terrorist acts or counter-terror operations. The law also establishes procedures for the prosecution of terrorism, including the creation of a specialized circuit to try all terrorism cases and expanded monitoring and surveillance authority during the investigation of an alleged terrorist crime.⁹⁰

There is also the Elimination of civil society law 2017. The law handcuffs NGOs with regulations and strangles the funding mechanism, essentially eliminating civil societies in Egypt. Introduced under the guise of National security, the implementation of this new legislation attempt to eradicate the human rights movement in Egypt. Under the law, NGOs will be only allowed to engage in activities that conform to national development plan while non- compliance will be met with jail terms of up to 5 years. Human rights work is bound under this law; similarly NGOs may not conduct work that harm “”national security”.⁹¹

6.0 THE STRUGGLE BETWEEN NATIONAL SECURITY AND THE RULE OF LAW

There is no doubt that that terrorism must frontally be confronted.  We are in agreement with the judgment of the High court of Kenya in COALITION FOR

REFORMS AND DEMOCRACY (CORD) AND 2 ORS V REPUBLIC OF

KENYA AND 10 ORS ⁹²when it properly reasoned that:

• “Counrer-terrorism Law” Tahir Institute for Middle East Policy. Loc. Cit
• Egypt: elimination of civil society signed into law by President Sisi “Published by International

Federation for Human Rights, Archived from www.refworld.org”(accessed on 22/08/2019) ⁹²  CFRN 1999, s 36 (6)

“It cannot be disputed that the fight against terrorism is an important purpose. The state has an obligation to protect citizens from internal and external threats but it must maintain a delicate balance between protecting the fundamental rights of citizens and protecting them from terrorists by providing them national security.

 Responding militarily to terrorism is not an easy task as it differ completely from the old wars that often times were between states and organized armed group and therefore subject to international humanitarian as particularly set out in the Four Geneva Convention. Terrorism falls under conflicts that are now classified as new wars. While old wars were fought by the regular armed forces of States new wars are fought by varying combinations of networks of State and non-State actors.

In response to the challenges posed by the characteristics of terrorism, nations have evolved different strategies to combat the scourge,

Mwangi argues that in kenya corruption and human rights violation adversely affect the formulation and implementation of counter-terrorism policies especially the strategies and tactics that deal with the use of coercion, leading to the unintended negative outcomes of such policies. He further cited religious discrimination in the implementation of such policies as leading to increase in physical insecurity and religious radicalization which rather exacerbate than mitigate terrorism in the country.^[80]

The difficulty of balancing national security with the dictates of rule of law remains the bane of the war against terrorism. The western democracies taunted as the bastion of democracy are not exempt from this dilemma. Different states therefore have different perspectives on the correct balance between individual freedom, state power, law, and how to counter external threats. Some states believe the best guarantee for security is state supremacy over the individual.

In Nigeria some members of the Nigerian military have also been accused of reneging on their responsibility to protect civilians during Boko Haram attacks.

Nigerian security forces is described as ‘dysfunctional, overstretched and illequipped, and therefore unable to mount an adequate defence, resulting in greater insecurity. In 2016 a Nigerian Army human rights desk was established in response to ‘increasing interest of the local and international human rights bodies.

The Directorate of Civil-Military Affairs runs human rights workshops and sensitization seminars on human rights abuses to raise awareness about the importance of protecting human rights during military operations.

Therefore, there is the need to strike a delicate balance between safeguarding national interest and the country’s obligation under international law; more so when the UN General Assembly much earlier had affirmed that all states must ensure that any measure taken to combat terrorism complied with their obligation under international law, in particular international human rights law, the Refugees

Convention and humanitarian law^[81]

7.0 OBSERVATIONS

The provisions in the counter- terrorism legislations in most African countries that derogates from rule of law derive their legitimacy, from national constitution. In

Nigeria section 45(1) of the Constitution provides that “nothing in sections 37,38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-

• In the interest of defense, public safely, public order, public morality or public health, or
• For the purpose of protecting the rights and freedom of other persons.

When can derogation be justified in a democratic society? The Nigerian Constitution seems not to provide any satisfactory answer in this regards. The Constitution of Kenya 2010 appears to answer these posers in Article 24 which allows for limitation of rights or fundamental freedom. Article 24(1) of the Constitution of Kenya provides:

24.(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only  to the extent  that the limitation is reasonable and justifiable in an open  and democratic  society based on human dignity, equality and freedom,  taking  into account all relevant factors , including-

1. The nature of the right or fundamental freedom
2. The importance of the purpose of the limitation
3. The nature and extent of the limitation,
4. The need to ensure that the enjoyment of rights and fundamentals freedom by any individual does not prejudice the rights and fundamental freedoms of others and
5. The relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

It is therefore clear and leaves no room for ambiguity the circumstances under which  a right  or fundamental freedom could  be limited in Kenya.  The Constitution   sets out parameters to gauge the utilitarian value of the limitation. Therefore, the state in justifying the limitation of a right, must demonstrate that the societal need   for the limitation of the rights outweighs the individual’s right to enjoy the right or freedom in questions^[82].Furthermore, the objective of the law limiting a right or freedom must be pressing and substantial, that is, it must be important to the society^[83].

This constitutional safety values in Article 24(1) of the Constitution of Kenya is what is lacking in the Nigerian constitution.

8.0 RECOMMENDATIONS

African countries must as a matter of urgency review their counter terrorism measure by emphasizing more on early detection and foiling terrorist plots rather than concentrating on use of military might.

Due to the complexity and lethality of terrorism in Africa, there is a need to reconsider new strategies for conflict resolution, such as human security-based approaches, which are prerequisite for effective counterterrorism measures.^[84]

All the offences listed in section 1(2) of the TPA of Nigeria (as amended) carry the death penalty. This is indeed unfortunate as the country undertakes to strengthen and enhance the existing legal frame work to ensure conformity of Nigeria’s counterterrorism laws and policies with International Standards and United Nations Conventions on Terrorism. Death penalty should be rarely imposed as Article 6(2) of the International Covenant on Civil and Political Rights expect countries to abolish the death penalty; and even when it must be imposed as a punishment, it should be for the most serious crimes. In any case, the death penalty has never served as deterrence and therefore cannot be justified for utilitarian considerations.

There is the urgent need to redesign antiterrorism campaign to address the structural drivers of radicalization and local recruitment, such as lack of employment opportunities for youth and socioeconomic inequalities. It is also important to emphasize collaborative strategies, including roles for  citizens and non-state actors in ensuring adherence to human rights and the rule of law.

To streamline counter-terrorism measures to be rule of law compliant we recommend further as follows:

1. We advocate for the reorientation of antiterrorism campaigns to ensure that agencies responsible for Countering Violent Extremism (CVE) carry out their operations within the ambit of human rights and the rule of law.
2. Engage in research to ascertain community priorities for CVE-related efforts and use the resulting data to design interactive civic-empowerment programs and conduct policy advocacy.
3. Create active platforms to involve citizens in CVE discussions at both the national and county levels to ensure their effective participation.^[85]

9.0 CONCLUSION   

Terrorism is an ill wind that blows nobody no good. It is indeed like a Tsunami that destroys anything and everything on its part. Therefore no effort must be spared in countering terrorism. The fight against terrorism is an important purpose and the state has an overriding obligation to protect citizens from internal and external threats; the security and welfare of the people is of concern to any government.

Clearly, different states have different perspectives on the correct balance between individual liberty, state power, law, and how to counter external threats. Some states believe the best guarantee for security is state supremacy over the individual. The United States and the European Union have set the global standard in seeking to balance civil liberties and national security, although they admittedly face different problems when formulating their respective responses.^[86][87]

Be that as it may, the point must be made that the state must maintained a delicate balance between protecting the fundamentals rights of its citizens and protecting them from terrorists by providing national security.  Guarantee of civil liberties is one of the major pillars on which the rules of law stands as protection of fundamental freedom is a primary objective of every democratic constitution and such as an essential characteristic of democracy.

In the bid to stemmed terrorism the some provisions of counter terrorism legislations appears to be at variance with rights guaranteed by national constitutions and international law. This problem is exacerbated by the wide and unguarded latitude given to the State to limit fundamental freedoms under such laws. Such power given to the State is like an unbridled horse let lose, which is not the contemplation of the principles of derogation. We are in agreement with the U.N Security Council when it resolved that the imperative to combat terrorism in all its forms and manifestation by all means must conform to the Charter of the United Nations and international law^[88].

This resolution was further re-echoed  in the U.N Global Counter- Terrorism Strategy when it reaffirm  that respect for human rights  and the rule of law must be the fundamental  basis for the fight against terrorism. The General Assembly further reaffirmed that the promotion and protection of human rights for all are essential component of the strategy, and recognized that effective counter- terrorism measures and the protection of human rights  are not conflicting  goals but complimentary^[89]

Therefore the fights against terrorism must as a matter of international obligation be re- aligned to be human rights compliant as the two are not mutually antagonistic but  mutually  inclusive and reinforcing.

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[9] Articles 14 and 17 of the International Covenant on Civil and Political Rights which entered into force in1976 provide for same rights.

[10] “The Rule of Law in the Age of Terrorism” Archived from: https://www.wilsoncenter.org (Accessed on 12/08/2019)

[11] Loc Cit

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[13] Human Rights, Terrorism  And Counter – Terrorism , Fact Sheets No 32 Office Of The United Nations High Commissioner For Human Rights

[14] The  Terrorism  Prevention Act  2011 comprised  of  41 sessions and gives the government  wide ranging powers to tackle  the scourge of terrorism including the  powers to to carry out or conduct   searches without warrant.

[15] Blacks’  Law  Dictionary p 1512 -1523

[16] Blacks’  Law  Dictionary p 1512 -1523

[17] Chisti, S. ‘’Globalization, International Economic Relations and the Developing Countries’’(2002) International

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[18] Blacks’  Law  Dictionary p 1512 -1523 ²⁶ Juliet Elu & Gregory Price (2015) “Causes and Consequences of Terrorism in Africa” Available at:

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[27] Kate Meagher,’’ Beyond Terror: Addressing the Boko Haram Challenge in Nigeria’’ (2014 )Norwegian Peace building Resource Centre.(Policy Brief)

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[29] Factsheets and Guides.  Sourced from:  www.africacheck.org   accessed 30 July 2015.

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[32] Oscar G.Mwangi ,“ How Kenya is managing security 20  years after the Nairo blast”Archived from: https://www.theconversation.com>how-kenya-is managing –(Accessed on 20/08/2019)

[33] “Al-Shabaab (militant group)” Archived from: https://en.wikipedia.org>wiki>Al-Shabaab (Accessed on12/08/2019)

[34] “Al-Shabaab” Archived from: https://www.cfr.org>backgrounder>al-shabaab (Accessed on 13/08/2019)

[35] “ Mapping Militants” CISAC Archived from: https://cisac.fsi,stanford,edu>profile>al-shabaab (Accessd on 13/08/2019)

[36] “Kenya’s Antiterrorism Strategy Should Prioritize Human Rights, Rule of Law” Archived from: https://freedomhouse.org/report/special–reports/kenyas–antiterrorism–strategy–should–prioritizehuman–rights–rule–law (Accessed on 12/08/2019)

[37] “ Terrorism in Egypt” Archived from: https://military.wikia.org/wiki/Terrorism_in_Egypt (Accessed on 17/08/2019)

[38] FBI’s Most Wanted Terrorists List, 9 May 2011

[39] “ We need to talk about Egypt: how brutal counter-terrorism is failing Egypt and its allies’ ” Archived from:

https://www.saferwould.org.uk/long–reads/we–need–to–talk (Accessed on 13/08/2019)

[40] Loc cit

[41] “Luxor Massacre” Archived from: https://military.wikia.org/wiki/Luxor_massacre (Accessed on12/08/2019)

[42] “ We need to talk about Egypt: how brutal counter-terrorism is failing Egypt and its allies’ ” loc cit

[43] Vehicle-borne improvised explosive device

[44] “Country Report on Terrorism 2015” Published by the United States Department of State, Archived from: https://www.refworld.org/docid/57518dc210.htm (Accessed on 20/08/2019)

[45] “Kenya’s Antiterrorism Strategy Should Prioritize Human Rights, Rule of Law” Archived

from:https://freedomhouse.org/report/special–reports/kenyas–antiterrorismstrategy–should–prioritize–human–rights–rule–law (Accessed on 12/08/2019)

[46] Oscar G. Mwangi “How Kenya is managing security 20 years after the Nairobi blast “ sourced from  http://theconversation.com/how–kenya–is–managing–security–20–years–after–the–nairobi–blast–101143

Visited on 12/10/19

[47] “Perception That Refugees Are More Prone To Radicalization Wrong And Dangerous” sourced from www.un.org on 12/10/19

[48] Murphy Caryle “Passion for Islam: Shaping the Modern Middle East: The Egyptian Experience” Scribner, 2002, p.57. Dale C. Ekmeier in his work “ Qutbism: an Ideology of Islamic Facism” (Parameters, Spring) pp. 85 – 98 wrote extensively on the impact of the works of Qutb on Islamic fundamentalism.

[49] Awad, Marwa (23 January, 2011) “Egypt blames Gaza militant for church bomb” sourced from http://www.reuters.com visited on 14/10/19

[50] Oscar G. Mwangi “How Kenya is managing security 20 years after the Nairobi blast “ sourced from  http://theconversation.com/how–kenya–is–managing–security–20–years–after–the–nairobi–blast–101143

Visited on 12/10/19

[51] Enders, W., and Sandler, T. (2006). The Political Economy of Terrorism. New York: Cambridge University Press

[52] Dugan, L., LaFree, G., and Piquero, A.R. (2005). Testing a rational choice model of airline hijackings. Criminology, 43:3

[53] Becker, S., Gary Crime and Punishment: An Economic Approach. Author(s): The Journal of

Political Economy,Vol. 76, No. 2 (Mar. – Apr. 1968), pp. 169-217

[54] Ehrlich, P., and Liu, J. (2006). Socioeconomic and demographic roots of terrorism, in J.J.F. Frost (ed.), The Making of a Terrorist: Recruitment, Training and Root Causes. Westport: Praeger Security International, pp. 161–171.

[55] Sourced from www.government.defenceindex.org visited on 10/10/19

[56] Aryn Baker “ Corruption in Military Defense Spending Could Be Behind Rise In Africa Terror Attacks” published in TIME sourced from www.time.com visited on 10/10/19

[57] COUNTER-TERRORISM, HUMAN RIGHTS AND THE RULE OF LAW IN WEST

AFRICA https://issafrica.s3.amazonaws.com visited on 13/10/19

[58] Juliet Elu & Gregory Price (2015) “Causes and Consequences of Terrorism in Africa” Available at: www.oxfordhandbooks.com. (Accessed on 11/08/2019)

[59] Kristina Zucchi ‘What Countries Spend on Antiterrorism’ sourced from www.investopedia.com visited on 10/10/19

[60] “African military spending continue to decrease. “published by  DefenceWeb. Sourced from www.defenceweb.co.za visited on 10/10/19

[61] Index Mundi ‘’Nigeria military expenditures’’ www.indexmundi.com accessed 27 September 2016

[62] (1992) 3 S.C 666. see also Unnikrishnan v. State of Andpra Praesh (1993) SC (1) 645

[63] John K. Walton, “Tourism” Archived from: https://www.britanical.com>topic>tourism (Accessed on 18/08/2019) ⁷² Op cit

[64] Archived from: www.2.unwto.org>content>why-tourism (Accessed on 18/08/2019) ⁷⁴ Diriye Hussein, “ Theeffect of Terrorism on Tourism in Africain the 21^st Century: ACase Study of Kenya ” Op. Cit

[65] Tarlow, P. E. (2006). “Tourism and Terrorism”. In Wilks J, Pendergast D & Leggat P. (Eds) Tourism in turbulent times: Towards safe experiences for visitors (Advances in Tourism Research), Elsevier, Oxford, pp. 80–82.

[66] Emily Harris, “ People Aren’t Coming To See The Pyramids or Snorkel In The Red Sea” Archived from:

https://www.knkx.org>post>people-aren’t-coming-to-see-the-pyramids Accessed on18/08/2019

[67] Higazi, A. ‘’Insurgency and Counter – Insurgency in North East Nigeria’’

[68] Udounwa, S. see footnote 34

[69] Section 502B (d)(1) C22 U.S.C. 2340 (d) (1) of FAA.

[70] Sourced from:  www.thedailybeast.com/…/Nigeria–s–do–it–yourself–boko–haram–buster–.htm accessed 2 August 2015

[71] “Military Converts Civilian JTF to Professional Fighting Force”. THISDAYLIVE@www.thisdaylive,com accessed  2 August 2015

[72] Terrorism  Prevention Act 2011 Laws of the Federation of Nigeria. Amended by TPAA 2013

[73] TPAA 2013, s 14

[74] Oscar G. Mwangi, (How Kenya is managing security 20 years after the Nairobi  blast) Op. Cit

[75] Available on: https://www.refworld.org.docid (Accessed on 29/08/2019)

[76] Oscar Mwangi. Op. cit

[77] Oscar Mwangi. Op. cit

[78] “Country Report on Terrorism 2015” Published by the United States Department of State, Archived from: https://www.refworld.org/docid/57518dc210.htm (Accessed on 20/08/2019)

[79] Counter-terrorism Law published by the TAHIR INSTITUTE FOR MIDDLE EAST POLICY

sourced from    https://timep.org/reports–briefings/timep–brief–counter–terrorism–law/ visited on 13/10/19

[80] Oscar G. Mwangi, “ Corruption, Human, Rights Violation And Counterterrorism In Kenya ” Archived from: www.link.springer.com (Accessed on 19/08/2019)

[81] General Assembly Resolution A/Res/57/219 of 18^th December 2002

[82] TPA 2011, s 1A (2)

[83] See: S.v. Zuma & Others (1952) 2 S A 642

[84] Lweendo Kambela (2019) “Terrorism in Africa: A Manifestation of New Wars.” Available at https://www.accord.org.za (accessed on 10/08/2019)

[85] “Kenya’s Antiterrorism Strategy Should Prioritize Human Rights, Rule of Law” Archived from: https://freedomhouse.org/report/special–reports/kenyas–antiterrorism–strategy–should–prioritizehuman–rights–rule–law (Accessed on 12/08/2019)

[86] “The Rule of Law in the Age of Terrorism” Archived from: www.wilsoncenter.org (Accessed on

[87] /08/2019)

[88] FHC/ABJ/CR./112/2013. The copy of this judgment was supplied to us by the prosecutor,  Simon C.Egede on 3/08/2015

[89] See: UN Security Council Resolution 1566 (2006), S/Res/1566 (2004) adopted by the security council at its 5053^rd meeting on 8 October 2004

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