Nigerian lawyers on Friday night expressed divergent views on the
legality of the military’s declaration of separatist group, IPOB, as a
terrorist organisation. While some said the military’s action was in order, others said it was not done in a constitutional manner.
A
senior lawyer, Mike Ozekhome, in a statement made available to PREMIUM
TIMES said the instances cited by the defence headquarters in reaching
its decision were not sufficient to term IPOB as terrorists.
The
military cited the following as its reasons for placing the terrorist
tag on IPOB: formation of a Biafra Secret Service; formation of the
Biafra National Guard; unauthorised blocking of public access roads;
extortion of money from innocent civilians at illegal roadblocks;
militant possession and use of weapons (stones, Molotov cocktails,
machetes and broken bottles among others) on a military patrol on 10
September 2017; physical confrontation of troops by Nnamdi Kanu and
other IPOB actors at a checkpoint on 11 September 2017 and also attempts
to snatch their rifles; attacks by IPOB members, on a military
checkpoint on 12 September 2017, at Isialangwa, where one IPOB actor
attempted to snatch a female soldier’s rifle.
But Mr. Ozekhome, a Senior Advocate of Nigeria disagreed with the military’s position on the matter.
“I do not believe the instances cited by the Defence Headquarters to justify declaring IPOB a terrorist organization,” he said.
“The
last time I checked, I can’t remember any of such organisation
operating in the country being declared terrorist organisations.
“The
herdsmen who go on rampage daily, maiming, raping, killing; those
responsible for the Agatu massacre; Shiites massacre, Southern Kaduna
pogrom, indiscriminate killings, brazen quit notices’ givers, across
Nigeria, etc, have never been arrested, prosecuted, let alone been
proscribed and stigmatised as terrorist organisations.
“We must
surely have and operate two sets of laws for two sets of people in
Nigeria. Nigeria, we hail thee. A government should be seen to be fair
to all component parts of Nigeria.”
In his reaction, lawyer and activist, Jiti Ogunye, described the declaration as ‘‘curious and strange in nature.’’
“I
find it rather strange and curious that the army would declare a group a
terrorist organisation. I said that because under the Section 2,
subsection (C) of the terrorism prevention act 2011, it is the
Attorney-General of the Federation, the National Security Adviser or
Inspector-General of Police that can declare an organisation a
proscribed or terrorist organisation.
“And it cannot just do so.
The two arms of government have to be involved for an organisation to be
proscribed. Also involved are the various arms of government mentioned,
as well as the president himself who must give an approval. The
executive arm of government will approach the court with an application
to give an order. This is to allow for a dispassionate and rational
assessment of the application to see whether it is warranted.
“The
judge is not part of the executive, he is independent. We have not been
told by the military or the Federal Government of Nigeria that an
application has been made to the Federal High Court in Nigeria. That is
why I said it is curious. If it is the military that has not done this,
then it is unconstitutional and illegal. We are not in a military
regime, no matter what the situation is, we have to follow the rule of
law so if no order has been obtained to this effect. What has been done
is unlawful,” Mr. Ogunye said.
He
added that the previous declaration by the Kaduna State Governor, Nasir
El-rufai, that the Shiite IMN is a terrorist group, is also
unconstitutional.
“Of course, it is an illegal
declaration. Who gave the Kaduna State Governor the power to do that?
The right to association, freedom of opinion, right to hold an opinion,
freedom of conscience and the right to freedom of speech are guaranteed.
These are entrenched rights in the constitution, so when you are taking
these rights away you have to follow very thoroughly and to the
minutest details, the dictates of the law.
“If a power is
supposed to be exercised by an authority and that power is not something
you can delegate, no other authority can exercise that power. The law
is that penal legislation; that is penalties that contain sanctions must
be construed so narrowly lest the rights of the people will be the
immediate casualty. The law construes such sections narrowly so that the
slightest mistake will be held against the person who is claiming
refuge to the dictates of that law,” Mr. Ogunye added.
The
lawyer argued further that the declaration of IPOB as a terror group
has a reverberating effect on likely innocent supporters of the group.
“It
is a monstrous law; even the Ohaneze Indigbo, the South-east governors
that would want to defend these groups cannot do that because the
terrorism act is saying that you cannot associate with them: because if
you do, you have become a co-conspirator.”
Mr. Ogunye noted that
although the military has the right of way and the area reportedly
overtaken by the IPOB members, where they attempted to prevent the army
from passing, is not an IPOB territory, ‘‘the army themselves are not
above the law.’’
He noted further that the section of the law
which defines the actions that constitute terrorism is rather wide in
its description.
“Section 1 subsection (2) of the Act that
describes what a terrorist organisation is, is so wide that
organisations (indeed) any organisation involved in massive mobilisation
against the government of the day can be labelled a terrorist
organisation.
“Section 2 (3) of the act paragraph 2 provides that
for the avoidance of doubt, political parties should not be described
as a proscribed organisation and nobody should be treated as such
because of his or her political belief. It is true that this provision
is there, but when you look at section 1 of the act which gives the wide
description of organisations that can be described as a terrorist
organisation, then you will see that any organisation can be regarded as
a terrorist organisation if it is fighting the government for whatever
cause.’’
According to Mr. Ogunye, it is important in the light of
the provisions of the act, ‘‘to consider the relationship between IPOB
and the acclaimed Boko Haram terrorists and, with a view to determining
whether they have something in common.’’
Another lawyer, Gloria Ezedika, also cautioned against flouting Nigerian law in making such declarations.
‘‘The
problem we have is that most of these people do not know what the law
says. It is important to understand what the definition of terrorism is
and to determine the signs of terrorism that we have seen in the actions
of the actions of the IPOB members. No arm of government surpasses the
law.
“The constitution should guide every act and whatever is
done that does not conform with the provisions of the constitution is
illegal and unconstitutional,” she said.
Also,
Akinolu Kehinde, a Senior Advocate of Nigeria, said the law has to be
followed fully and an order of a court is necessary before such a
declaration can be made.
“The power to declare a group a
terrorist group belongs to the Honourable Attorney-General of the
Federation, the NSA or the IGP. After any of these arms have made the
declaration, following the approval of the president, the
attorney-general will now apply to the court, to get a judicial seal.
The court still has to make a pronouncement,’’ Mr. Kehinde said.
However, other senior lawyers said the military’s action was not unconstitutional.
A Senior Advocate of Nigeria, Rotimi Jacobs, said the executive arm of government has the power to make the said declaration.
He added that military, working as an arm of government ‘‘can speak for the President.’’
“It
should be the executive and I believe the military has the mandate of
the President. The president has not said anything to the contrary, so I
believe they are speaking the opinion of the President,” Mr. Jacobs
said.
In his reaction, another Senior Advocate of Nigeria,
Samson Ameh, said the Nigerian President had the right to declare the
group a terrorist organisation, adding that the president had ‘’peculiar
rights over’’ to take such an action.
“The president has
the right to make such a declaration. He has peculiar rights regarding
the security of a country. It’s like declaring a war, in America, it is
called the affirmative action. That is what we call the police action
here. Also, the Inspector-General of Police can make the declaration on
behalf of the President,” Mr. Ameh said.
In a related
matter, South-east governors on Friday announced the proscription of
IPOB following the spread of the violence in the region after the
organisation clashed with the military.
Also, the controversial
governor of Ekiti State, Ayodele Fayose, described the “maltreatment”
and “killing” of IPOB members agitating for the state of Biafra, as
ethnic cleansing.
“I have said it before now that it is only God
that can help the Igbo people. What I see going on in the South-east is
ethnic cleansing when you see the video clips of that occupation, the
behaviour of the soldiers, leaves much to be desired but they cannot act
like that without a whistleblower, somebody is behind them telling them
go and ‘cleanse the people,’” he said in Ado-Ekiti on Friday.
“That
is recklessness, human rights violation in Nigeria today is second to
none. And I hope the international community would not be quiet on this.
It is unfortunate.”
Mr. Fayose, a vocal critic of the APC
administration, noted that the IPOB struggle was beyond Mr. Kanu,
stating that the South-east region was facing serious challenges and
difficult times.
“The herdsmen wreaking havoc all over, and
killing, what has the military done to deal with them? Has anyone of the
herdsmen been prosecuted, let alone giving them this kind of
treatment?” he asked.
“You went to court to revoke Kanu’s bail
but you can’t even wait for the court to take a decision before
occupying his house. Nigeria is in trouble except the Lord helps us.”
WHAT THE LAW SAYS
According
to the Section 2 (c) of the terrorism prevention act, in setting up or
pursuing acts of terrorism, the judge in chambers may on an application
made by the Attorney-General, National Security Adviser or
Inspector-General of Police on the approval of the President; declare an
entity to be a proscribed organisation and the notice should be
published in official gazette.
Subsection (2) of the same act
adds that: “An order made under sub-section (1) of this section shall be
published in the official gazette, in two National newspapers and at
such other places as the judge in Chambers may determine.’’
Subsection
three adds that; “A publication made under sub-section (2) of this
section shall contain such relevant particulars as the judge in Chambers
may specify.’’
Source: Premium Times
Lawyers "Take" On Military Declaration Of IPOB As Terrorist Group/Organization
Reviewed by Exlink Lodge
on
Sunday, September 17, 2017
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