I wish to point out a very salient observation which may have been overlooked by these pundits. But before I do so, I must state upfront that I do not support any of these groups. I have consistently argued that the modus operandi of IPoB is uncivilized and unintelligent. And I have described the Boko Haram sect as a barbaric, devilish and bloodthirsty band of fanatics. Generally, I detest persons and groups who believe that the only way they can achieve their ends is by the visitation of unnecessary violence. The above notwithstanding, I hold the strong view that the right to self determination of persons and groups is sacrosanct. It is the hallmark of the human specie. To that extent, it must be afforded the highest levels of protection and given free expression at all times. Having made the above clarification, I will now turn to the issue at hand. The law under which any organization can be proscribed by the Federal Government as a terrorist group is the Terrorism (Prevention) Act, 2011 as amended in 2013 (the Act). Basically, s.2 of the Act provides that a judge of the Federal High Court may declare any entity to be a proscribed organization on the application of the Attorney General, National Security Adviser or Inspector General of Police on the approval of the President. And when such a declaration is made, it should be published in the official gazette and two national newspapers. The manner in which this application is to be brought before the court is by motion exparte. To the legally uninitiated, this means that the group to be proscribed is not put on notice. In other words, the group is, legally speaking, unaware of the application in court and the case against it. As such, it cannot put up a defence to the case against it – even if a member were in court. And then the sad part, the decision of the court under the Act is not an interim or interlocutory one; it is final in the sense of a final judgment. However, is this entire procedure not in conflict with the constitution of Nigeria? Well, let us see: s.36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the constitution) provides that “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing…by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”. It is worth noting at this juncture that ‘a person’ in this section refers to both natural and artificial persons. The courts of Nigeria, especially the Supreme Court, have variously described fair hearing in the following terms: audi alteram partem and nemo judex in causa sua. These Latin maxims respectively mean: hear the other party and a person must not be a judge in his own case. This is what is often referred to as the twin-pillars of justice. It has been said that God Himself even heard from Adam before the latter was punished i.e. sent out of the Garden of Eden. In fact, this principle is so fundamental in any proceedings that a violation of one of the strands renders the entire proceedings null and void. See the Supreme Court’s cases of: Danladi vs Dangiri (2015) 2 NWLR (Pt 1441) 124; and Omoniyi vs Alabi (2015) 6 NWLR (Pt 1456) 572. Interestingly, the Supreme Court in the case of Pam vs Mohammed (2008) 16 NWLR (Pt 1112) 1 at 49-50, Paras F-D, had this to say on the import of fair hearing under the constitution: “The very essence of fair hearing…is a hearing which is fair to both parties to the suit….A party who will be affected by the result of a judicial enquiry must be given an opportunity of being heard. Otherwise, the action taken following the enquiry will be unconstitutional and illegal”. But what do we have under the Act? In one short phrase, the stark opposite! Under the Act, the court is to hear from only one party, the government – the superior party! Is this not open to all manner of abuses by the government? Does this not give the government the leeway to give any group a bad name in order to hang it? All of these legitimate concerns point to one incontrovertible fact: that provision cannot stand an intense scrutiny by the constitution. This is especially so when we realise that what the Act and the entire process seeks to achieve is the deprivation of the fundamental right of citizens to assemble and associate freely as guaranteed by s.40 of the same constitution. Thankfully, the Supreme Court has in a plethora of cases declared such anomalous legal provisions as unconstitutional, null and void in line with s.1(3) of the constitution. See the cases of Ugba vs Suswam (2014) 14 NWLR (Pt 1427) 264; and Kayili vs Yilbuk (2015) 7 NWLR (Pt 1457) 26. Nonetheless, the courts are not given to academic, hypothetical or moot issues. To activate the adjudicatory jurisdiction of the courts, live cases must be brought before them. And so, I implore affected persons and groups, especially the IPoB, to approach the courts to judicially interpret the provisions in question. While doing so, they must bear the wise words of Bada, JCA in Igbinedion vs E.S.B.I.R. (2017) 13 NWLR (Pt 1583) 503 at 515, Para B, in mind: “The right to fair hearing is a fundamental and constitutional right of a party to a dispute to be afforded an opportunity to present his case to the adjudicating authority. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in the case”. O. D. Nengim, Esq. A legal practitioner based in Port Harcourt]]>
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