The Prominent Civil Rights Advocacy group -: HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) has asked President Muhammadu Buhari to immediately activate mechanisms to unravel the role of fifth columnists who are undermining the goals, objectives and gains of the current war on terror being undertaken by gallant operatives of the Nigerian Military.
The Rights group in a statement by the National Coordinator Comrade Emmanuel Onwubiko and the National Media Affairs Director Miss Zainab Yusuf said that it is of the considered position that the recent killings and losses suffered by innocent citizens in the hands of armed terrorists may not have occurred if these daredevil dubious saboteurs were stopped from hatching and executing their diabolical plots and scheming against the hierarchies of the nation’s security forces and against the President and commander-in-chief of the Armed forces of the Federal Republic of Nigeria.
HURIWA has appealed to the President and the National Assembly to initiate forensic investigations to ascertain whether the same ‘political lepers’ who midwifed the daredevil terror operations that culminated in the eventual kidnap of over 300 school children from Chibok in Borno state are not back to the natural abode and are the characters contributing to the escalation of the conflicts in the North East of Nigeria and thereby compounding the war on terror that the Nigerian Military were on the verge of ultimate victory.
“Mr. President kindly look into the possibility that those behind the kidnap of the Chibok girls are back again because Chibok girls were kidnapped to stop Jonathan from declaring a state of emergency in Borno State and the actors are either in the Senate or in government houses today.”
We are beginning to understand that since the Attorney General of the Federation Abubakar Malami (SAN) declared that Local Government Areas must hold elections and restore constitutional order in the country, politically instigated attacks in Borno State has increased. Sir, kindly check if the political goons are fooling Nigerians but one thing is certain they cannot fool all of the people all of the time. To stop Boko Haram and restore peace totally in Borno State and Nigeria, we call for citizens’ support for the war on terror. We also call for a stop to the releases of the so-called repentant boko haram terrorists.
THE LEGAL NECESSITY FOR PUBLIC SUPPORT OF A LAW BASED WAR ON TERROR AND PROMOTION OF NATIONAL SECURITY
Terrorism and insecurity are twin evils which have bedeviled the Nigerian State for high on now. Although the term “terrorism” has poses legal definition challenge, its peculiar characteristics manifest in motive founded on ideology, identifiable by signature violence and targets primarily intended to compel compliance.
In the wake of the 9/11 terrorist attacks in the USA, the United Nations Security Council (UNSC) passed Resolution 1373 which required member states to make not only terrorism a serious crime in domestic legislation along with terrorists funding and but also other ancillary offences. The first direct attempt at tackling the problem was included in some sections of the EFCC (Establishment) Act 2004. A comprehensive Terrorism Bill was proposed at the National Assembly 2005 but did not pass into law. However, the situation changed with the passage of the Terrorism Prevention Act of 2011 which was amended in 2013 (referred herein as TPA).
Be that as it may, the problem of Nigeria is not the lack of applicable laws in the different spheres but lack of proper or outright non-implementation. This is so much a norm that it is said our laws are better observed in breach. Government and the public cannot be on different levels of operation and expect to have a sane society, more so that the twin evils of terror and insecurity are largely by products of people-government interaction and to a large extent a measure of the state of health of the relationship. This makes this discourse a most relevant one at this time of our national life.
Legal Necessity of Public Support
No policy government succeeds without public support. The war on terror is no exception. The primary way in which the law advocates support for the war on terror is the proscription of support for terrorism. Section 4(1) of the TPA provides that a person who knowingly, in any manner, solicits or renders support foran act of terrorism ora proscribed organization or an internationally suspected terrorist group, commits an offence under the Act and shall on conviction be liable to imprisonment for a maximum term of 20 years and a sentence of death where death results from the terror. It is interesting that support for terrorism is defined under subsection 3(c) to include offer or provision of moral assistance.
In same vein, section 5 of the PTA makes it a criminal offence to harbour, conceal or cause to be harboured or concealed a person known to have committed, or to have been convicted of an act of terrorism or a terror fugitive and makes such act punishable with imprisonment for a maximum term of 10 years.
Also the TPA, under section 7, requires any one with useful information which could prevent the commission of terrorism or aid the apprehension of a suspect to supply such to the appropriate authority and failure to do so as soon as reasonably practicable is an offence which attracts a maximum imprisonment term of 10 years. Section 8 of the Act makes it criminal offence to disclose information which could prejudice the investigation of terrorist activities, so also is obstruction of the investigation of suspected terrorist activities.
It is in recognition of the need to support the fight against terrorism and promote national security that in the case of Achem v. F.R.N. (2014) LPELR-23202 (CA), the Court of Appeal per EKANEM, JCA at pages 16-17, paras. F-A held thus:
“It should be mentioned that the applicant was convicted and sentenced for offences relating to terrorism which in recent times have grown in intensity and magnitude, and have become a threat to our national security. Courts should therefore be very circumspect in granting bail pending appeal to a person convicted for any offence relating thereto.”
Similarly, in the case of Dokubo-Asari v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320, 358-359, the Supreme Court gave its nod of approval to the refusal to grant bail pending trial to the Appellant on ground, inter alia, of threat to national security. The public must become decisive about terror by not only not supporting terrorists but also being willing to support the war.
Law based War on Terror and Promotion of National Security
In the same vein the government must engage in a law based war by enforcing anti-terrorism laws. Section 1A (4) of the TPA (as amended) empowers “the law enforcement agencies” to “enforce all laws and regulations on counter–terrorism in Nigeria”. Prior to the TPA, Section 46 of the EFCC Act 2004 defines “terrorism” to mean a violation of the Criminal Code or the Penal Code and with likelihood of endangering life, integrity or freedom, or causing serious injury or death with the intent to force the person(s) or body or government to do or not to do certain things or disrupt and includes financing or aiding terrorism. The punishment for the crime by Section 15 of the EFCC Act is imprisonment for life.
Section 1(3) of the TPA (as amended) defines an ‘act of terrorism’ as that deliberately done with malice aforethought and which may seriously harm or damage a country or an international organization. Any act also amounts to terrorism when it is done deliberately with malice aforethought and intended to unduly compel a government or international organization to perform or abstain from performing any act. A terrorist act is committed when done with the requisite intent; it seriously destabilizes or destroys the fundamental political, constitutional, economic or social structure of a country or international organization by intimidation or coercion. It also amounts to a terrorist act where it involves an attack upon a person’s life that possibly results in serious bodily harm or death. Intimidating or coercing a government or international organization is a terrorist act where it involves or causes: the kidnapping of a person, or destruction of a government public facility, or private property etc. This is particularly so where the act is likely to endanger human life or result in major economic loss. By section 2 (b) (I), which defines terrorism as acts done to unduly compel a government or international organization to perform or abstain from performing any act the definition of terrorism is confined to non-state actors thereby excluding state terrorism from the ambit of its definition. There is an omnibus provision which criminalizes and treats as terrorist act ‘any act or omission’ in or outside Nigeria which constitutes an offence within the scope of a counter-terrorism protocols and conventions duly ratified by Nigeria
It is difficult to dismiss the general notion that the Nigerian State has not shown political will and commitment to the war on terror. It seems that not only have the real brains behind it not been prosecuted but are also being shielded. An ideology based crime does not end with the incarceration of the “foot soldiers”. Unfortunately usual extra judicial killing of high profile suspects suggests a pattern of cover up. Both Mohammed Yusuf and Alhaji Buji Foi, Boko Haram leader and the financier respectively, suffered the same fate while in police custody.
Closely related is the manner of enforcement of the law on the subject; enforcement must be within the arm bit of general sense of legality. This implies that government should be conducted within the framework of recognized rules and principles which restrict discretionary power as opposed to the uncertain and crooked cord of discretion as held by the Court in the cases of Miscellaneous Offences Tribunals v. Okoroafor (2001) 10 NWLR (Pt. 745) P. 310 and All Nigerian Peoples Party v. Benue State Independent Electoral Commission (2006) 11 NWLR (Pt. 992) p. 597.
In the English case of Arthur Yates & Co. Pty. Ltd. v. Vegetable Seeds Committee9, Herring C.J held thus in this regard:
“It is not the English view of the law that whatever is officially done is law … On the contrary, the principle of English law is that what is done officially must be done in accordance with the law.”
Nations which have achieved stability and national security are those which have elevated law above political, religious, ethnic sentiments. The present federal government advocates national security on the basis of sacrifice of not only individual rights but also the rule of law. It is important to note that by section 1 (3) of the Terrorism Prevention Act (as amended) strikes and demonstrations are excluded from the definition of terrorist acts, provided they are not intended to result in any harm referred to in subsection (2) (b) (i) (ii) or (iv) such as seriously intimidating a population, influencing a government or international organization by coercion or intimidation. The demands of citizens, whether individually or collectively, which accord with law is not terrorism and cannot be proscribed. Section 14(1) and (2) of the Constitution of the Federal republic of Nigeria, 1999 (as amended) provides that Nigeria shall be a State based on the principles of democracy and social justice with security and welfare of the people as the primary purpose of government. In the same vein Section 17(1) and (2) provides that the State shall be founded on ideals of freedom, equality and justice and that government action shall be humane and the independence and integrity of the courts shall be secured and maintained.
Closely related is the necessity to build institutions which the State utilizes in the war against terror and towards the promotion of national security. Paramount among these institutions is the judiciary with its Court. Unless there is the utmost respect for the Court and its orders, national security will remain a wish. The present Attorney General of the Federation, and by extension the Federal Government, has proven over time to have a misconceived idea of the interrelationship between respect of the Court and balance between private and public rights vis a vis national security. A case is point is the response of the IPOB and Islamic Movement of Nigeria which both addressed their proscription by the federal government as ridiculous in view of the fact that the same government has been culpable as regards Court orders. The matter may appear to have been settled, but it remains a volatile situation.
In the case of Safekun v. Akinyemi & Ors (1980) 5 – 7 SC, P. 25, the Supreme Court per Aniagolu, JSC held thus:
“It is essential in constitutional democracy such as we have in this country, that for the protection of rights of citizens, for the guarantee of the rule of law, which include according to fair trial to the citizen under procedural irregularity, and for checking arbitrary use of power by the executive or its agencies, the power and jurisdiction of courts under the Constitution must not only be kept intact and unfettered but also must not be nibbled at … Indeed, so important is that preservation of and non-interference with, the jurisdiction of the Courts that our present Constitution has specifically provided in S. 4(8) that neither the National Assembly or House of Assembly shall enact any law that ousts or purports to oust the jurisdiction of a Court of law or a judicial tribunal established by law.”
Besides, in the case of Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 622 the Supreme Court held thus:
“It is a very serious matter for anyone to flout a positive order of a court and proceed to insult the court further by seeking a remedy in a higher court while still in contempt.”
In Oba Lamidi Adeyemi (Alafin of Oyo) & Ors. v. Attorney General of Oyo State & Ors. (1984) 1 SCNLR, p. 525 at p. 602, the Supreme Court per Aniagolu J.S.C. observed thus:
“It cannot be too often repeated … that the jurisdiction of the Courts must be jealously guarded if only for the reason that the beginning of dictatorships in many parts of the world had often commences with usurpations of authority of Courts and many dictators were often known to become restive under the procedural and structural safeguards employed by the Courts for the purpose of enhancing the rule of law and preserving the personal and propriety rights of individuals. It is in this vein that the Courts must insist wherever possible, on a rigid adherence to the Constitution of the Land and curb the tendency of those who would like to establish what virtually Kangaroo Courts are under different guises and smoke screens of judicial regularity.”
Another institution which is suffering the heat of the terror due to the approach being deployed in tackling it is the Nigerian army. While it is agreed that one special role of the military is support of State’s internal security apparatus in quelling internal insurrection, its traditional role remains protection of the nation from external aggression in defence of sovereignty. The implications of over utilizing the military internally are diverse including grave consequences illegality, human rights violations, lack of popular support by the people and even the likelihood its mode of operation robbing off on other civil security agencies in the light of inter-agency collaboration. This association has ability to influence the police to become brutal or increase the sophistication and aggression of the terrorists or terror groups who ordinarily should be weakened by intelligence of the police or other trained civil organizations in collaboration with the people with whom the criminals ordinarily associate and sometimes live among. This abnormally can only be corrected by return to the legal foundations and basis for these organizations and legality in operation; only intelligence with the public support and not use of brute force and brutality, can win the war on terror. There is urgent need to demilitarize the domestic counter-terrorist approaches.
A law based terror war is people oriented and respects not only fundamental human rights (which are the rights granted in the priority law of the land like the Nigerian Constitution) but also recognizes and accords the people due respect as partners on the war and thereby consciously protects the humanity of the people. It must be clear that if the public is terrorized in the war on terror, the government will lose support in the war and that will complicate it. The object of the war should be defined to be the people’s interest for the security and safety of the public. It must be carried out it the most civilized way possible. A lot of times these essentials to the success of the fight are lost in the heat of emotion and stress occasioned by the havoc of the menace resulting in callous raids, arbitrary arrests lacking intelligence, unlawful arrests with ulterior motives, brutalization of suspects without iota of facts or evidence about their involvement or even outright arrests of relatives or friends who have not aided or abetted the crime.
It is said for the umpteen times that there is no such thing as vicarious criminal liability. The Supreme Court made this point abundantly clear in the case of PML (Nig) LTD v. Federal Republic of Nigeria (2017) LPELR – 43480 (SC). So however closely related a person may be to a criminal or suspect of a crime, they cannot be held liable for their crimes unless they are culpable or complicit in the crime one way or the other. But the story never ends about how different security operatives raid houses or places and brutalize people who are not directly connected to the crimes. In some cases they are detained as a strategy to secure the arrest of their suspects. This is most cruel and illegal. One option available to the USA and which was the safest for the US navy seal during the raid that killed Osama Bin Laden was to bomb his hide out at Abbottabad in Pakistan but it was not utilized avoid incurring casualties of other occupants of the building who obviously were related to him. The lesson is very clear, even the attack on the world’s terror leader and most wanted man was not callous or reckless.
A law based war against terror is also fearless and jettisons the popular believe that law is only enforced against the poor. This factor is particularly important because although the actual perpetrators are recruits from vulnerable people, the masterminds are the politically inclined or high class members of society. For instance it is very disappointing that although some top politicians were fingered as the brains behind and sponsors of terrorism in Nigeria, they have never been invited by law enforcement agents for questioning let alone charged with the crime.
Again the war must be holistic. Although a system founded on might has propensity for abuse, the root cause or aggravating factor of criminality is inequality which largely stems from government irresponsibility and irresponsiveness. No nation can successfully win a war on terror when its most active class are either unemployed or grossly underemployed and underpaid. A youthful unemployed population is a threat to peace, stability and security if at all there can be such society. There is therefore a need to revamp the economy and as an urgent interim measure reduce cost of governance and increase employment.
It is the belief that peaceful co-existence and security are the desire of all; this is a fact self-evident in the communal nature of man. Crime is only an alternative that not all members adopt in response to the social malfunctions of the systems of society. It presupposes that any program meant to ensure the safety of that society would always be supported by it. The vulnerable percentage will also support the scheme if well implemented to their persuasion. It then remains a tiny percentage of the population involved in deviance or non-conformity and this group will naturally be overcome by government anti-crime strategy which will always succeed with the support of the public. Following this prototype, law based war on terror with public support is the panacea to the current insecurity debacle.
TEXT OF A PRESS BRIEFING DELIVERED BY HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) TODAY DATED 13TH FEBRUARY 2020.
* Comrade Emmanuel Onwubiko