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Currently, this initiative has produced Igbo youths who freely refer to Nigeria as a Zoo, fellow Nigerians as animals and baboons and the president of the Federal Republic as a “pedophile president and terrorist”. The youths also have been emboldened to threaten fellow Nigerians and to freely discuss war, terror and violence as part of their mindset and solutions to the Nigerian problem. This is surely an ill wind that blows nobody any good and a subtle conditioning and radicalisation that does not augur well for the peace of Nigeria and the world system.

In the light of the many commentaries I have come across on Nnamdi Kanu’s arrest by the Nigerian government and the right of Biafran people to self-determination, I am minded to try to comment on some of the legal issues raised by Radio Biafra’s broadcasts and which may have informed the government’s decision to arrest its director.

I must state categorically from the beginning that as an Igbo by ethnic identification, I should be pleased with anything that would advance the Igbo cause and welfare but unfortunately any moderately thoughtful Igbo man who believes in the need to obey the law, in decency and the tenets of human civilisation will cringe at the methods employed by the Radio Biafra operators in the name of speaking the truth or espousing the right to self-determination.

In the light of the discussions one has listened to on the Biafra Station and open discussions of orchestrated eliminations of perceived saboteurs on their social media pages, one would have feared to openly express the view that the modus operandi of this movement borders on illegality and criminality and clearly transgresses the fundamental principles that guide the international community of states. But we cannot ignore the duty to inform our fellow compatriots of the legal ramifications of the issue at hand. Maybe they may come to see a better way of pursuing justice for their perceived grievances, and a senseless bloody conflict may be avoided.

We are not unaware that self-determination is a right guaranteed to “peoples” in international law. Most of the agitator have not fully explained to their teeming followers that self-determination may either be internal self-determination or external self-determination. Neither have they informed them that the territory of any state that conducts itself in accordance with the right of self-determination and has a government that is representative of the entire peoples on its territory is sacrosanct and protected in international law or that secession from a parent state is permissible only in specially and carefully defined circumstances – the so-called “remedial only” theory of secession.

We will therefore seek in this two part article to show that the modus operandi of radio Biafra and their sponsors raise fundamental questions of legality/criminality and that if they must seek self-determination in the acceptable way, they must necessarily reconsider their modus operandi. We will also briefly show in the second part that secession is frowned upon in international law and is only recognised in very limited circumstances, and that rather than levying war against Nigeria, there are other internationally recognised constitutional alternatives that require negotiations and discussions with the other component parts of Nigeria, even if the only acceptable outcome is secession.

Criminal Law Issues Raised By Radio Biafra’s Mode of Operation

At the international level, analysis of most of the Radio’s previous broadcasts leads to a suspicion that hate speech is being spread and incitement to genocide is being committed through these broadcasts. While at the national level, issues of sedition, treason and defamation may be raised by these broadcasts.

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Hate speech is defined as an expression of hatred towards another person or group of people using various means such as writing, speech or any other form of communication.

Nigeria has not fulfilled its obligations under the International Covenant on Civil and Political Rights (ICCPR) to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence as required by article 20(2) of the ICCPR. It equally has not complied with article 4(a) of the Convention on the Elimination of Racial Discrimination to make “all dissemination of ideas based on racial superiority or hatred” a punishable offence” and has also not domesticated the Genocide Convention.

One wonders whether the agitators will simply stop at the planned secession of Biafra or would go further to find a way to pay back their perceived enemies for the purported genocide of the Igbos in the civil war. No person left with some measure of humaneness would be happy listening to broadcasts that suggest that another ethnic group is worthy of extermination no matter the past injustices that group may have meted out to your ethnic group.

However, most countries of Europe have done so and have laws that criminalise hate speech and incitement to genocide.

The UK Public Order Act 1986 for example in its section 17 defines racial hatred as “In this Part “racial hatred” means hatred against a group of persons… defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.

It then provides in its section 22 that:

“If a programme involving threatening, abusive or insulting visual images or sounds is included in a programme service, each of the persons mentioned in subsection (2) is guilty of an offence if —
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

As to the international crime of incitement to commit genocide, international prosecution of the offence may be traced back to the conviction of Julius Streicher, the Nazi editor whose publication was found to have ‘infected into the minds of thousands of Germans ‘a poison’ that caused them to support the national socialist policy of Jewish persecution and extermination.’ It was subsequently consolidated in the trials of the International Criminal Tribunal for Rwanda.

The Akayesu Judgment defined public and direct incitement as “directly provoking the perpetrators to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings or through the public display of placards or posters, or through any other means of audiovisual communication.”

The International Criminal Tribunal for Rwanda stated in Prosecutor v Nahimana et al that, “the crime of direct and public incitement to commit genocide is an inchoate offence, punishable even if no act of genocide has resulted therefrom… In most cases, direct and public incitement to commit genocide can be preceded or accompanied by hate speech…”

Inasmuch as the question of whether any offence has been committed is left to the courts to decide, many of the Radio Biafra broadcasts raise the presumption that hate speech and incitement to genocide is being propagated through the Radio. Even though Nigeria may not be able to prosecute such offences, European states can.

On the Nigerian front, the Nigerian legal system criminalises certain acts which are considered inimical to the security of the state. Under this classification of crimes, we have still extant in our Criminal and Penal Codes, the offences of sedition and treason.

Even though the offence of sedition seemed to have been consigned to the trash can as being incompatible with the right to freedom of speech in the case of Arthur Nwankwo v the State (1985) 6 NCLR 288, it however still exists in our laws and has not been repealed.

When one considers the current mayhem being unleashed on the Northern states of Nigeria by the Boko Haram group and the resultant losses to the Hausa nation and its development, one realises that no matter how appealing the idea of violence and war may seem to persons who have no tangible hopes of survival, in the long run, it is detrimental to the development of a people. The tenets of humanity and civilisation and the criminal law do not seem to agree with the methods being employed by this current initiative. We are of the opinion that the government is well within its rights and is fulfilling its duty both nationally and internationally in clamping down on the movement even though this must be done within the bounds of due process and rule of law.

The law of sedition discourages criticisms of the government through virulent and malignant attacks which are capable of affecting the public peace as was held in the case of DPP v. Chike Obi. Section 51 of the Criminal Code prohibits doing or attempting to do any act with seditious intention.

A seditious intention is defined in section 50(2) as an intention; to bring into hatred or contempt or to excite disaffection against the person of the president, or of the governor of a state or the government of the federation or administration of justice; to excite the citizens or other inhabitants of Nigeria to attempt to procure the alteration otherwise than by lawful means of any matter in Nigeria as by law established; or to raise dis-content or disaffection amongst the citizens or other inhabitants of Nigeria; TO PROMOTE FEELINGS OF ILL-WILL AND HOSTILITY BETWEEN THE DIFFERENT CLASSES OF THE POPULATION OF NIGERIA.

Despite the various ingenious defences that may be raised by a clever counsel, referring to the president as a pedophile president (this may amount to defamation despite the justification advanced that the president married his wife when she was under-age), encouraging animosity and hatred between the ethnic groups, as well as encouraging violence and elimination of perceived saboteurs as a means of achieving self-determination may closely border on sedition.

Treason is defined by section 37 of the Criminal Code as levying war against the state, in order to intimidate or overawe the president or the governor of a state or conspiring with any person, either within or without Nigeria, to levy war against the state with the intent to cause such levying of war as would be treason if committed by a citizen of Nigeria.

Levying war is defined as “The assembling of a body of men for the purpose of effecting by force a treasonable object; and all who perform any part however minute, or however remote from the scene of action, and who are leagued in the general conspiracy”. Section 41 describes as treasonable an intention to levy war against Nigeria in order to force or constrain or compel the President to change his measures or counsel… It is an offence punishable by death.

Video evidence has surfaced online of the Radio Biafra director soliciting for arms to use against the Nigerian government and raises the matter to a higher and more serious plane which calls for caution on the part of anyone who would wish to support their cause. I would also comment on this in part II in the light of some of the recent decisions of international tribunals.

Conclusion

A thoughtful person who listens to Radio Biafra and hears people being encouraged to share the names, phone numbers and addresses of fellow Igbo men who are perceived as saboteurs and the director openly or veiledly threatening to deal with such individuals who are deemed to be saboteurs for failing to comply with their instructions, would really wonder at the type of repressive state the agitators are trying to create where dissent is not tolerated but stamped as deserving of death and punishment.

Also when one hears the station using the same kind of terrible stereotyping and denigration of all other ethnic groups as sub-standard and inferior to the Igbo race one immediately remembers the Nazi philosophy of Arian Superiority that led in the end to the genocide of millions of Jews.

We may finally assert that if the group must validate their claim to being agents of light, they must demonstrate the attributes of light in order to attract the sympathy of right thinking members of the world community.

The agitators fail to recognise that the same Declaration on the Rights of Indigenous Peoples on which they premise their agitation clearly states that “all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.”

One wonders whether the agitators will simply stop at the planned secession of Biafra or would go further to find a way to pay back their perceived enemies for the purported genocide of the Igbos in the civil war. No person left with some measure of humaneness would be happy listening to broadcasts that suggest that another ethnic group is worthy of extermination no matter the past injustices that group may have meted out to your ethnic group.

Currently, this initiative has produced Igbo youths who freely refer to Nigeria as a Zoo, fellow Nigerians as animals and baboons and the president of the Federal Republic as a “pedophile president and terrorist”. The youths also have been emboldened to threaten fellow Nigerians and to freely discuss war, terror and violence as part of their mindset and solutions to the Nigerian problem. This is surely an ill wind that blows nobody any good and a subtle conditioning and radicalisation that does not augur well for the peace of Nigeria and the world system.

When one considers the current mayhem being unleashed on the Northern states of Nigeria by the Boko Haram group and the resultant losses to the Hausa nation and its development, one realises that no matter how appealing the idea of violence and war may seem to persons who have no tangible hopes of survival, in the long run, it is detrimental to the development of a people. The tenets of humanity and civilisation and the criminal law do not seem to agree with the methods being employed by this current initiative. We are of the opinion that the government is well within its rights and is fulfilling its duty both nationally and internationally in clamping down on the movement even though this must be done within the bounds of due process and rule of law.

We may finally assert that if the group must validate its claim to being agents of light, it must demonstrate the attributes of light in order to attract the sympathy of right thinking members of the world community.

Nonso Robert Attoh is a law lecturer in the Faculty of Law, University of Nigeria, Nsukka, Enugu Campus.