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.

Meet Barrister Jiti Ogunye

• Principal Counsel & Solicitor at Jiti Ogunye chambers and former Solicitor & Counsel at Femi Falana Chambers.

On the Occupation of the South East by Sylvester Odion Akhaine.

Last Friday, September 8, 2017, I watched, listened and read the intriguing statement of the Nigerian army made public by the Chief of Training and Operations of the Nigerian Army, one Major General David Dawandi Ahmadu to the effect that it was carrying an exercise code-named Exercise Egwu Eke II (Python Dance II). 

The statement underlined the manifest function of the exercise that is: “Emphasis will be placed on raids, cordon and search operations, anti-kidnapping drills, road blocks, check points, patrols, humanitarian relief activities such as medical outreach and show of force to curb the rising threat to national security in the South Eastern part of the country.” 

However, the latent function is to pacify agitators for social justice and self-determination as the statement puts it, the exercise is “to transit into real time operations thereby fulfilling both training and operational objectives of sharpening operational skills of personnel as well as providing an avenue to conduct operations against violent criminals and agitators when called upon”.

Against the background of the ongoing agitation for self-determination and a previous eighteen-month civil war, the statement of the Nigerian army and its effectuation amount to an occupation of South-eastern Nigeria, the land of the Igbo people. It is a clear demonstration of the fact that an ethnic cabal that largely controls the security apparatuses of the country sees the rest of country as a conquered territory and logically the people as subjects.

Whereas the army in its statement talks glibly about respect for human rights. Indeed the statement reads, “It is pertinent to mention that the security, safety, and well-being of innocent and law abiding citizens of the states mentioned above have been adequately factored into the planning of the exercise. Thus, the rights of individuals as enshrined in the Constitution would be respected and safeguarded”.

Irrespective of a play to the corridor of human rights, the sheer deployment of troops in peacetime to a region of the country begins the violation of their rights as citizens of Nigeria and creates a state of siege and unmeasured psychological trauma. The clash in Abia state commences the trail of violation. In civilized climes, security operations in peace time are underlined by collateral functions and sophisticated intelligence collecting.

Truly, Nigeria faces a lot of security challenges, the most potent of them is the vicious killings being perpetrated by the so-called Fulani herdsmen, a terrorist gang rated as the fourth deadliest in the world by the Global Terrorism Index. This ought to be the pre-occupation of the Nigerian army at this point of our historical annals. But rather, the same army and other security forces in the country have given unabashed partisan backing to the activities of the ‘herdsmen’.

To state in unambiguous terms, the current development is a perversion of civil-military relations and diminishes the image of the Nigerian army. The Nigerian army appears to be impervious of the contradictions of the Nigerian state which have been aggravated by those Prof. Pat Utomi referred to as the ‘Class of 1966’ and their incestuous heirs.

The current development only justifies the call by the Campaign for Democracy of old which led the agitation against military rule among other groups in the 1990s for the re-organization of the Nigerian army along regional command in order to ensure a structural balance of terror. A situation where the country’s armed forces are instrumentalized as an ethnic organization is unacceptable to many of us and it must stop.

Force is the least enduring elements of nation-building. As the late British Historian, Eric Hobsbawm has warned, wars of the twenty-first century can no longer be fought by conventional forces. Nigeria in its present skewed structure cannot survive no matter the degree of repression. It will ossify even if no one raises a whimper. What progressive Nigerians are calling for is a reasonable conversation to right the wrongs. The inequity of the system, the dwindling resources and high consumption of the warped political class will push even the armed forces beyond what they already are, namely, “army of anything goes” to totally self-destruct.

Let us remember that history moves irrespective of our will, men intervene only to give it direction for social progress. Therefore, I join freedom loving Nigerians to demand the immediate withdrawal of the army of occupation from South Eastern Nigeria.

Meet Sylvester Odion Akhaine. He is an Associate Professor and the Acting Head of Department of Political Science, Lagos State University.