IPOB, the Armed Forces and a Coup Against Civil Authorities, By Kennedy Emetulu
…this latest declaration of IPOB as a terrorist organisation may yet be the worst exhibition of illegality by the Armed Forces. They need to retrace their steps now for their own professional good. The Armed Forces remain one of the only remaining national institutions patriotic citizens look up to. Their leaders must not let Nigerians begin to lose confidence in them.
In a democracy, where the military is under the control of civilian authorities, any unlawful act of the military is seen as a coup against civil authorities. That is how the Nigerian military’s unilateral declaration of IPOB as a terrorist organisation must be seen. The Defence Headquarters’ statement making the declaration was released by the director, Defence Information, Major-General John Enenche on Friday, September 15, 2017. Below is the full statement:
Public Awareness on the State of Independent People of Biafra
1. The Independent People of Biafra (IPOB) group which has posed to be a security challenge in the country, has been metamorphosing from one stage to the other. After due professional analysis and recent developments, it has become expedient, to notify the general public that; the claim by IPOB actors that the organisation is non-violent is not true. Hence, the need to bring to public awareness the true and current state of IPOB. In this regard, some of their actions, clandestinely and actively, that has been terrorising the general public, among others, include;
a. The formation of a Biafra Secret Service.
b. Claimed formation of Biafra National Guard.
c. Unauthorised blocking of public access roads.
d. Extortion of money from innocent civilians at illegal road blocks.
e. Militant possession and use of weapons (stones, molotov cocktails, machetes and broken bottles among others) on a military patrol on 10 September 2017.
f. Physical confrontation of troops by Nnamdi Kanu and other IPOB actors at a check point on 11 September 2017 and also attempts to snatch their rifles.
g. Attack by IPOB members, on a military check point on 12 September 2017, at Isialangwa, where one IPOB actor attempted to snatch a female soldier’s rifle.
3. From the foregoing, the Armed Forces of Nigeria wishes to confirm to the general public that IPOB from all intent, plan and purpose as analysed, is a militant terrorist organisation. Therefore, parents and particularly unsuspecting residents of the South East and other Nigerians should advice their wards to desist from joining the group.
4. The Defence Headquarters restates its commitment to handling all the security challenges in the Country and further assures all Nigerians of the protection of lives and property.
You can never find a more self-indicting statement than the above. I mean, in any security or legal assessment of a group’s potential to be declared a terrorist organisation, the overwhelmingly most important consideration is the group’s armed capacity, including the number of trained militants in its ranks. But what have we got here? First, members of IPOB are not militants or militias, they are just activists, and from the Armed Forces own statement, their weapons consist of “stones, molotov cocktails, machetes and broken bottles among others”. Who declares any group a militant terrorist organisation based on this scary armoury? More crucially, none of the issues listed here are offences under the relevant legislation, and that legislation is the Terrorism (Prevention) Act 2011 (as amended). For our purpose, it is the law that stipulates the procedure for declaring an organisation a terrorist organisation and its subsequent proscription and it is the law that the Defence Headquarters has breached in making this declaration.
For the avoidance of doubt, under section 2(1)(c) of the Act, the only authority that can make the declaration is a judge in chambers upon an application made by the attorney general, the national security adviser or the inspector general of Police with the approval of the president.
Below are the relevant provisions in full:
2. Proscribed Organisation
(1) Where two or more persons associate for the purpose of or where an organisation engages in—
Participating or collaborating in an act of terrorism;
(b) promoting, encouraging or exhorting others to commit an act of terrorism; or
(c) 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 any entity to be a proscribed organization and the notice should be published in official gazette.
(2) 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.
(3) A publication made under sub-section (2) of this section shall contain such relevant particulars as the judge in Chambers may specify:
(i) a person who belongs or professes to belong to a proscribed organisation commits an offence under this Act and shall on conviction be liable to imprisonment for a maximum term of 20 years;
(ii) for the avoidance of doubts, political parties should not be regarded as proscribed organisations and nobody should be treated as such because of his or her political beliefs.
(4) It is a defence for a person charged under sub-section (3) of this section to prove that the organisation had not been declared a proscribed organisation at the time the person charged became or began to profess to be a member of the organisation and that he has not taken part in the activities of the organisation at any time after it has been declared to be a proscribed organisation.
(5) The Attorney General upon the approval of the President may withdraw the order if satisfied that such proscribed organisation has ceased to engage in an act of terrorism — the proscribed organisation or person affected by the order made an application on notice; and
(b) he is satisfied that a proscribed organisation has ceased to engage in the acts specified in sub-section (1) of this section and that there is no likelihood of the organisation engaging in such acts in the future and shall be published in the official gazette.
From the above, we note clearly that the law has not given the Defence Headquarters any role to play in the declaration of any organisation as a terrorist organisation or in the proscription of such an organisation.
For the avoidance of doubt, under section 2(1)(c) of the Act, the only authority that can make the declaration is a judge in chambers upon an application made by the attorney general, the national security adviser or the inspector general of Police with the approval of the president. In other words, once the president considers an organisation a terrorist organisation, he cannot just on his own proscribe such an organisation. The law gives him no such powers. He must sit with his security and intelligence people and one of three named officers of the executive arm (that is between the attorney general, national security adviser and the inspector general of Police) would, with the approval of the president, approach a judge in chambers with an application to proscribe the organisation.
Obviously, the reason for that type of closed hearing is because it’s not something that can be handled in open court, as the nature of evidence and the information to be considered by the judge would mostly be confidential national security matters. But the decision is the judge’s to make. The only time the president can make a decision about the status of a terrorist organisation without a judge is if he intends to withdraw the order declaring such an organisation a terrorist organisation. In that case, he would instruct the attorney general, who with his approval may withdraw the order once satisfied that such proscribed organisation has ceased to engage in an act of terrorism. But as far as we are talking, the power to declare an organisation as a terrorist organisation is reposed only in a judge in chambers, as stipulated by the Act.
If the judge makes a decision to declare an organisation a terrorist organisation, he would make an order to that effect. The law says the order shall be published in the official gazette, in two national newspapers and at such other places as the judge in chambers may determine. Indeed, the judge in chambers can also specify relevant particulars that should be part of the publication.
…even if at this point, the Presidency decides to legalise this illegality by now going to a judge in chambers to make an order that IPOB is a terrorist organisation, I cannot see any judge worth his robe sticking his neck out to grant such an order based on the ‘evidence’ presented here by the Defence Headquarters.
In Nigeria, only two organisations have been declared terrorist organisations under this law and the application for that declaration followed the process and procedures we have stated here exactly. The two organisations are the Boko Haram (Jamaatu Ahlis-Sunna Liddaawati Wal Jihad) and Jama’atu Ansarul Muslimina Fi Biladis Sudan (Ansaru). On Tuesday, June 4, 2013, after an order had been made to the effect by a judge in chambers, President Goodluck Jonathan formally approved the proscriptions and authorised the gazetting of the order declaring the activities of both groups as acts of terrorism. It is instructive that there is a third terrorist group recognised as such internationally, that is the Fulani herdsmen. In November 2015, they were declared the by the Global Terrorism Index as the fourth deadliest terrorist group in the world, behind Boko Haram, ISIS and Al-Shabab. But Nigeria has not declared them a terrorist organisation. However, what is important to note for our purposes is that the procedure and processes for identifying and declaring an organisation a terrorist organisation do not involve the Armed Forces.
Of course, the Terrorism (Prevention) Act 2011 (as amended) gives the Armed Forces responsibilities, but such responsibilities are limited to intelligence gathering and enforcement duties as part of their law enforcement and security duties under the Act. All the things listed by the Defence Headquarters to justify declaring IPOB a terrorist organisation are not for public consumption and they are not expected to act on them unilaterally. If they are reports of intelligence on the organisation gathered by the Armed Forces, the law requires them to pass over that information to the national security adviser, who with the attorney general and the inspector general of Police are the officers lawfully mandated to bring such evidence or intelligence before a judge in chambers as part of their submission when making an application for such an organisation to be declared a terrorist organisation.
The Armed Forces by this declaration have also undermined a pronouncement by the courts with regard to the lawfulness of IPOB. On Wednesday, March 1, 2017, one of the charges thrown out by Justice Binta Nyako of the Federal High Court, Abuja was the one accusing IPOB of being an unlawful organisation. In throwing it out, Justice Nyako declared that the documents before the court were insufficient to prove the allegation that the IPOB constituted an unlawful society. The state did not file any fresh charges on this point and never appealed that decision. The implication is that IPOB remains a lawful society. So, now, we have the irony of an organisation declared a lawful society by the courts being unilaterally declared a terrorist organisation by the Defence Headquarters. They are not only doing this in contravention of the court’s pronouncement but, as we have seen from our analysis, against the lawful requirements of the Terrorism (Prevention) Act 2011 (as amended).
The problem here is that the Defence Headquarters, even though acting unlawfully, might be acting with the full backing of the Presidency or the civil authorities that should have taken charge of this. Apart from this being a politicisation of the Armed Forces, it poses a grave danger to servicemen and women in the future. For instance, there is no statute of limitation applicable to the unlawful act involved in this declaration. So, what happens if tomorrow, knowing how partisan politicians can be and how very eager they are to look for scapegoats, a new government or party comes to power and decides to prosecute every officer involved in this act? Such officers cannot have the defence of saying they were only carrying out orders because the order, in this case, is unlawful and whoever gave the order at the highest decision-making level of the Armed Forces would himself be personally liable as far as the order cannot be linked on the face of it to any civil authority above him. For this purpose, it is enough that it was the Defence Headquarters that made the declaration.
Also, even if at this point, the Presidency decides to legalise this illegality by now going to a judge in chambers to make an order that IPOB is a terrorist organisation, I cannot see any judge worth his robe sticking his neck out to grant such an order based on the ‘evidence’ presented here by the Defence Headquarters. For public policy reasons, judges will also be mindful of section 2(3)(ii) of the Terrorism (Prevention) Act 2011 (as amended), which clearly states that nobody should be treated as a terrorist because of his or her political beliefs. They would be mindful that IPOB is a political organisation fighting for self-determination, which is lawful under our Constitution and international law. They would be mindful of the fact that such a declaration would endanger free speech and freedom of assembly and would threaten so many other civil society organisations in the country. It certainly would undermine our democracy greatly and no sane judge would want to be the one to do such a Judas’ job.
The truth is the Armed Forces are being dragged into this mess unnecessarily. Everyone needs to calm down and follow the law. The Armed Forces should sit with their lawyers to review this decision. They can achieve whatever they want to achieve with Kanu and IPOB without acting unlawfully. My humble advice to them is that they quickly withdraw this public statement declaring IPOB a terrorist organisation and replace it with one declaring that certain elements of the group are instigators of violence. That gives them a wide legal and operational ambit to work with. They must then revert back to their original programme under the Egwu Eke II exercise and declare their readiness to help the police and civil authorities whenever called upon to do so. We all love the military and would hate to see their credibility pitifully eroded by acts like this. First, it was unlawful to go to Mr. Nnamdi Kanu’s street in his village to show force or show off new armoury, as it is unlawful to kill, torture and intimidate citizens in the name of the Egwu Eke military exercise. But this latest declaration of IPOB as a terrorist organisation may yet be the worst exhibition of illegality by the Armed Forces. They need to retrace their steps now for their own professional good. The Armed Forces remain one of the only remaining national institutions patriotic citizens look up to. Their leaders must not let Nigerians begin to lose confidence in them. They should return to the path of honour and the rule of law and henceforth stick to it.
Kennedy Emetulu can be reached through firstname.lastname@example.org.