Was The Federal Government Right After All?
By Job Sunday
The Federal Government of Nigeria through the Honourable Attorney General of
the Federation, Abubakar Malami SAN via a Motion Ex Parte pursuant to Section
2 of the Terrorism Prevention (Amendment) Act 2013 (TPAA), Section 45(1) of the
1999 Constitution (As Amended) and under the Court’s inherent jurisdiction
approached the Federal High Court sitting in Abuja for several Orders inter alia (i)
declaring that the activities of Indigenous Peoples of Biafra (IPOB) in any part of
Nigeria especially in the South-East and South-South Regions of Nigeria amounts
to acts of terrorism and illegality, (ii) proscribing the existence of IPOB either in
groups or as individuals by whatever names they are called, and (iii) restraining
any person from participating in any manner whatsoever in any form of activities
involving or concerning the prosecution of the collective intention or otherwise
of IPOB.
The Motion Ex Parte was supported by a seven (7) paragraph affidavit which
overwhelmingly bears out several acts of terrorism of IPOB tht are prejudicial to
the interest of the Federal Government of Nigeria and her citizens. Upon
consideration of FGN’s case as presented, all the Orders were granted as prayed.
The fact that the Motion was Ex- Parte does not presuppose that the Orders were
granted as a matter of course as it is beyond doubt that the Acting Chief Judge of
the Federal High Court, Justice Kafarati must have satisfied himself as to the
justice of the application before granting the prayers sought. Several depositions
in paragraph 5 (a) to (y) of the Affidavit in Support of the Federal Government’s
Motion Ex-Parte bears our clearly and beyond any iota of doubt that IPOB has
grossly violated the relevant provisions of the Law.
IPOB has consistently engaged in acts considered seriously detrimental to the interests of the Federal Republic of Nigeria internally and externally by seeking to balkanize the country, and by openly declaring that it would prevent citizens of Anambra State from performing their civic duties by preventing the upcoming gubernatorial election in Anambra State.
IPOB through its members has been harassing security agents of the
Federal Government of Nigeria and has continuously intimidated law abiding
citizens who do not accept or align with its secessionist agenda, declaring the
country a Zoo and labelling other ethnic groups with derogatory names and
appellations in a manner that is causing disaffection among the people of Nigeria
and capable of destroying the peace of the nation.
Upon the grant of the Orders, and as expected in a liberal democratic setting
where free speech is guaranteed, there have been several reactions in the print,
electronic and social media as to the propriety or otherwise of the said Orders.
Some legal practitioners and self-acclaimed Human Rights Activists have been
most vocal in criticising the Federal Government for approaching the Court, and
the Federal High Court for granting the Orders. It has been argued among others
that under the relevant laws, it is only a registered entity that can be proscribed.
With due respect, this argument, flies in the face of the express provision of
Section 2(1) of TPAA which provides that where two or more persons associate
for the purpose of or where an organisation engages in- (a) 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 on an application made by the Attorney–
General, National Security Adviser or Inspector General of Police on the approval
of the President shall declare any entity to be a proscribed organisation and the
notice should be published in the Gazette. The procedure followed in the instant
is in line with the express provision of the foregoing Section of TPAA.
The first leg of the opening paragraph of Section 2 of TPAA refers to any two or
more persons, while the other leg relates to an organisation. Either of the two
qualifiers will suffice because they are to be construed as alternatives due to the
use of the word ‘’or’’. It is beyond doubt and contest that IPOB is made up of
more than two persons and from information in the public domain, IBOP is
registered as a private company under the Laws of California on 12 February
2014. To that extent, it qualifies as an organization which a distinct identity. The
acclaimed leader of IPOB, Nnamdi Kanu had in Suit ECW/CCJ/APP/06/16 filed
against the Federal Republic of Nigeria, Attorney General of the Federation and
Director-General of Department of State Security Service before the Community
Court of Justice of ECOWAS averred that IPOB and its affiliates were registered in
thirty (30) countries. For instance, Radio Biafra Limited was registered under the
United Kingdom Companies Act 2006, and Certified by the Registrar of Companies
for England and Wales. IPOB was also registered under the UK Companies Act
with Registration number 9141882.
Assuming however that the above foreign registrations cannot be reckoned with
in Nigeria, IPOB will still come squarely under the first leg of the opening
paragraph of Section 2 of TPAA. In any event, the argument that IPOB is not
registered in Nigeria cannot hold water as this issue had long been settled in Law
as stated by Lord Denning Master of the Rolls, in Willis v. Association of
Universities of the British Commonwealth when he said:
‘’ we have reached a point foreseen by Professor Dicey long ago: ‘when a body of twenty, or two thousand or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body which by no fiction of law, but by the very nature of things, differs from the individuals of whom it is constituted,’ a passage which was acclaimed by Professor Maitland in his Sidgwick Lecture (Collected Papers III, p. 306). This fact has now been recognised by law’’.
The Supreme Court in Fawehinmi v. NBA (No. 2) [1989] 2 NWLR (Part 105) at page
108 has also upheld the position of Lord Denning in the Willis case.
In further support of Federal Government’s position, under Section 62 (1) and (2)
of the Criminal Code Act, IPOB would clearly qualify as an unlawful society which
has been defined to include a combination of ten or more persons whether the
society be known by name or not which has among others been formed for:
levying war or encouraging or assisting any person to levy war on the Government
of the inhabitants of any part of Nigeria; or destroying or injuring or encouraging
the destruction or injuring of any property; or subverting or promoting the
subversion of the Government or its officials; or committing or inciting to acts of
violence or intimidation; or interfering with, or resisting, or encouraging
interference with or resistance with the administration of law or disturbing or
encouraging the disturbance of peace and order in any part of Nigeria.
In case anyone is still in doubt, the sole issue submitted before the Federal High
Court in applying for the Orders was a determination as to whether the provisions
of Section 2(1)(a-c) of TPAA have been sufficiently complied with to warrant the
grant of the Orders as prayed. Without being mischievous, it is incontrovertible
that the acts of IPOB as widely reported in the Media sits well with the provisions
of Section 2 of TPAA. Hence, the Order of the Federal High Court against IPOB is
proper considering the facts of the case. Some have argued that the Order ought
not to have been granted Ex Parte but such argument ignores the seriousness of
the issues involved and the consequences on the general public. If the Court could
give Orders against Persons Unknown in certain circumstances and such Orders
are nevertheless valid, how much more an Order issued in furtherance of public
health and safety directed at a group of persons with ascertainable objective and
goals. At any event, the procedure adopted is as laid out in TPAA, and it remains
the las until set aside by the National Assembly.
For the avoidance of doubt, Section 1(2)(a)&(b) of TPAA provides that acts of
terrorism means an act which is deliberately done with malice aforethought and
which–(a) may seriously harm or damage a country or an international
organization; (b) is intended or can reasonably be regarded as having been
intended to: (i) unduly compel a government or international organization to
perform or abstain from performing any act; (ii) seriously intimidate a population;
(iii) seriously destabilize or destroy the fundamental political, constitutional,
economic or social structures of a country or an international organization and
(iv) otherwise influence such government or international organization by
intimidation or coercion.
It is widely known that members of IPOB during their operations utilize dangerous
weapons such as (stones, Molotov cocktails, clubs, machetes and broken bottles)
to attack innocent citizens, disrupt business and economic activities) and have
used these weapons to attack a Military Patrol Team at Afarauku, Umuahia on
10th of September, 2017 during which attack, some soldiers suffered serious
injuries. IPOB has also formed illegal and unlicensed security out-fits viz: the
Biafra Secret Service (BSS) and Biafra National Guard (BNG) for the purpose of
unleashing terror on innocent citizens of this country. The leader of IPOB has also
threatened to match with over two million of his men to overrun the nation’s
capital, Abuja and has consistently warned that Nigeria will burn!
On 14th September 2017, irate members of IPOB completely destroyed the Ariaria
Police Station in Aba, Abia State. In the process, they injured policemen, carted
away three pump action rifles, attacked a MOPOL Patrol vehicle with Petrol
Bomb, destroyed commercial vehicles, set bonfires on the road, attacked a
commercial bank, among several other acts of illegalities.
IPOB has also threatened to secede from or seeking to divide Nigeria. These acts of illegality and unconstitutionality strikes at the heart of the existence of the nation and is
contrary to the spirit and intent of Section 2(1) of the 1999 Constitution (as
amended) which provides that: “Nigeria is one indivisible and indissoluble
Sovereign State to be known by the name of the Federal Republic of Nigeria.’’
Pro-IPOB arguments have also been based on the Right to Peaceful Assembly and
Association as guaranteed under Section 40 of the 1999 Constitution (As
amended), this argument however ignores the foundational principle of Law and
Constitutionalism that no Right is absolute and that no Right can invalidate any law
that is reasonably justifiable in a democratic society in the interest of defence,
public safety, public order, public morality or public health or for the purpose of
protecting the rights and freedom of other persons as expressly provided under
section 45(1) of the 1999 Constitution.
IPOB claims to be fighting the cause of the peoples whose origin can be traced to
South-Eastern Nigeria, whereas all the Governors of the five (5) South East States,
who are the Chief Security Officers of their respective States and saddled with the
responsibility of ensuring public safety and order pursuant to Section 215(4) of the
1999 Constitution, have unanimously publicly condemned IPOB as self-seeking and
unrepresentative of the aspirations of the Igbo people. This is not to say that any
group of persons who desires self-determination do not have a legitimate right to
so do, rather the argument is that self-determination must be pursued in line with
the Rule of Law and in compliance with the United Nations Charter and the
International Covenant on Civil and Political Rights which International instruments
are not synonymous with treasonable felony and other acts of terrorism being
propagated by IPOB.
It has long been settled from the seventeenth century when the Philosopher
Thomas Hobbes lived, that the primary aim of government (which refers to the
legal and political authority of a territory) is to provide her citizens with protection
from harm that would otherwise be inflicted by citizens inter se and perhaps by
foreign aggressors. The government has a bounden duty to transform anarchy to
order. Thus, in a democracy, at least, government must offer and guarantee
security and predictability to those who live under and within its jurisdiction. In
the instant, I am of the humble but firm view that the Federal Government of
Nigeria has acted rightly by obtaining an Order of Court to proscribe IPOB in line
with the relevant Statute thereby ensuring that many Nigerians can escape a life
that would otherwise be ‘solitary, poor, nasty, brutish and short’ which IPOB
ultimately would have foisted on them wholesale.
Job Sunday is a constitutional Law expert
