Friday, September 15, 2017

The Defence Headquarters Has no Statutory Powers to Proscribe Terrorist Organization by Barrister Jiti Ogunye.

Two anomalies have occurred today in dealing with the challenges posed by IPOB:

First, the Nigerian Armed Forces, through the Ministry of Defence ( Defence Headquarters), announced that it ( IPOB ) has been designated a " terrorist organization ".

Second, the Governors of the South East States rose from their meeting with the military in Enugu and announced that IPOB and its activities have been proscribed in all the South Eastern states. 

Both steps are illegal and unconstitutional. 

Under Section 2 (1)(c) of the Terrorism Act, No. 10, 2011, a judge of the federal high court in chambers may on an application made by the Attorney General of the Federation, 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 a National Gazette. 

When the Judge sits in Chambers, he usually sits on an application ex parte. In this case, an application is heard and determined without the target party, the organization being sought to be proscribed being first heard and granted a fair hearing. However, upon the proscription of the organization, it, rightly, can approach the court for a deproscription order. 

Evidently, therefore, the Defence Headquarters had no statutory power to proscribe terrorist organization. The military, in recognition of its subordination to civil authority, ought to have liaised with the designated authorities that possess the power, if they are armed with intelligence or security reports warranting the designation of IPOB as a terrorist organization, and its proscription. This smacks of the lack of coherence and coordination of law enforcement and security agencies that afflicts the Buhari presidency.

The law is that statutory powers specifically donated to certain authorities cannot lawfully be exercised by any other authority. And also provisions of a law that contains penal provisions or provisions abridging entrenched fundamental rights must be construed and interpreted very narrowly. Any slight deviation from its prescriptions shall be held against the authority claiming its benefits, and who intends to rely on the provisions of the law to justify its action. 

The intendment of the law giver in making the two branches of government ( executive and the judiciary to collaborate in proscribing an organization is obvious. The judiciary is the independent arm of government that can soberly and dispassionately assess and determine whether there is a basis in law, having regards to the definition of acts of terrorism under Section 1 (2) of the Terrorism Act, to grant an order proscribing an association. In this regard, the provisIon of Section 2( 3) (2) must be kept in view. It provides that " for the avoidance of doubt, political parties should not n regarded as proscribed organizations and nobody should be treated as such because of his or her political beliefs. " 

Apart from the issue of statutory compliance, fairness requires that we interrogate whether the intendment of the law giver has been dutifully and patriotically served in the designation of IPOB as a terrorist organization. Are this designation and proscription a hurried, knee-jerk approach by the military to provide justification for Operation Python Dance II in the South East in the face of allegations that the South East was being invaded? Of course, the definition of "acts of terrorism" under Section 1 (2) of the Act is so wide that IPOB easily will fit the designation. 

But is this alleged proscription done in good faith? Or is it done as a " deus ex machina" to enable the military to reap maximum operational benefits from it, in order to be better able to accomplish the mission of their operation?

If an operation is being questioned and challenged as untenable, what are the better tactics to justify the operation than to quickly declare one of the objects, if not the main object of the mission a terrorist organization? With that, the case is closed. Anybody that associates with the organization thenceforth becomes a conspirator or a terrorist sympathizer or helper, a criminal offense under the Act? 

Can we honestly place IPOB and Boko Haram on the same pedestal? These and more questions will be asked in the coming days. 

On the second issue, it is baffling that the South East Governors came out with that communique, proscribing IPOB. Under the law and the Constitution, they lack the power to do so. They are not military administrators ruling by edicts. That decision shows that they were in a panic mode. Were they acting altruistically but ignorantly; or acting under intimidation or pressure? 

Moving forward, our assessment is that the FGN needs a more coherent legal strategy in handling IPOB.