Tag: legal framework

Where an entity is convicted of an offence under the TPA (as amended), such as entity is liable to the forfeiture of any assets, funds, or property used or intended to be used in the commission of the offence and the court may issue an order to wind up the entity or withdraw the licence of the entity and its principal officers or both. (s. 25 (ii). Where the court orders the entity to be wound up, its assets and property shall be transferred to the Federation Account. (s. 25)(3).

Terrorist Funding

Terrorist funding is defined as “providing or collecting funds, by any means, directly or indirectly, with the intention or knowledge that they will be used to carry out an act of terrorism” (72). A distinction must be made very quickly here between terrorist funding and money laundering. Money laundering presumes that there is a crime which generates proceeds that have to be disguised in order to conceal the illicit source which in the case of terrorist financing, money would be from either legitimate or illegal sources. (73).

Section 13(1) of TPA 2011 (as amended) prohibits making available funds, property or other services by any means, whether legitimate or otherwise to terrorist organisations or individual terrorists with the knowledge or having reasonable grounds to believe that such funds or property will be used in full or in part in order to connect or facilitate a terrorist act. No person or body corporate shall also solicit, acquire, provide, collect, receive or posses such funds. The Act prescribes life imprisonment for a convict of such an offence (section 13(2)(b).

Section 14 of the Act imposes an obligation on financial institution or designated non-financial institution to report suspicious transaction relating to terrorism to the Financial Intelligent Unit (FIU). The Nigerian F.I.U. was established in 2005 by the EFCC. It draws its powers from the money Laundering (Prohibition) Act 2004 and the Economic and Financial Crime Commission (Establishment) Act 2004. It is the central agency for the collection, analysis and dissemination of information on ML and TF.

Human Rights Issues and the TPA 2011 (as amended)

The enactment of the Principal Act in 2011 generated concerns from human rights circles as some aspects of the Act were seen as constituting serious threats to some of the fundamental rights guaranteed in chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). For instance, the Act gave broad and sweeping powers to security and intelligence officers without any judicial oversight. In section 25 (now substituted) the National Security Adviser or Inspector General of Police may enter and search any place, persons, or vehicle “without warrant” if he has reason to suspect that an offence is being committed. He may also search, detain, and arrest any person if he has a reasonable suspicion that the person has committed or is about to commit an offence under the Act. Section 26 (now substituted), authorised the Attorney-General of the Federation, the National Security Adviser or the Inspector General of Police to use communication service providers in intelligence gathering as he may deem fit. Section 28 (now substituted) also allowed the detention of a terrorism suspect for 24 hours by security officers without access to any other person except the suspect’s medical doctor and the detaining agency’s lawyer. The wide powers conferred on the government to proscribe organisations were also of a great concern as such powers were considered as capable of being abused, particularly in declaring opponents as terrorists.

The 2013 amendment of the Act brought about some changes to address some of the human rights issues. Nevertheless, some of the amendments still leave much to be desired. For instance, section 27(1), which provides that “[t]he court may, pursuant to an ex-parte application, grant an order for the detention of a suspect under this Act for a period not exceeding 90 days subject to renewal for a similar period until the conclusion of the investigation and prosecution of the matter that led to the arrest and detention is dispensed with” is potentially contrary to the right to personal liberty under section 35 of the Nigeria Constitution, especially against the backdrop of a community reading of subsections (1) (c), (4) (a) (b) and (5). While sub-section (1) (c) permits deprivation of a person’s liberty, in accordance with a procedure permitted by law, “for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence”, sub-section (4) provides that such a person shall be brought before a court of law within a reasonable time, and if he is not tried within a period of:

(a) Two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or

(b) Three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be bought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date. According to sub-section 5, the expression ä reasonable time” means.

(a) In the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and (b) In any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.

The new section 28(1), which provides that “[w]here a person is arrested under reasonable suspicion of having committed any offence under this Act, the relevant law enforcement or security officer may direct that the person arrested be detained in custody for a period not exceeding forth-eight hours”, potentially contravenes section 35(4) (5) of the Constitution “in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres”.

The new section 28(4), which provides that where a person arrested under the Act is granted bail by a court within the 90 days detention period stipulated by the Act, “the person may, on the approval of the Head of the relevant law enforcement agency be placed under a house arrest and shall – (a) be monitored by its officers: (b) have no access to phones or communication gadgets; and (c) speak only to his counsel until the conclusion of the investigation.” House arrest, without a valid court order or, in this case, in defiance of a court order, is illegal and undermines the authority of the courts.

The Attorney-General of the Federation (AGF)

The sweeping powers conferred on the National Security Adviser, the Inspector General of Police and the State Security service under the Principal Act are now curtailed and reposed in the Attorney General of the Federation who is now designated as the authority for the effective implementation and administration of the Act. He has the responsibility to strengthen and enhance the existing legal framework to ensure conformity of Nigeria’s counter-terrorism laws and policies with international standards and United Nations Conventions on Terrorism. He shall also maintain international cooperation required for preventing and combating international acts of terrorism. It is the further responsibility of the Attorney-General to ensure the effective prosecution of terrorism matters. (s.1A (2) (a) (b) and (c).

The Attorney General of the Federation reserves the power to delegate his power to any agency charge with responsibility of terrorist investigation to instituted criminal proceedings. (S. 30(1)). A special power is conferred on the AGF to initiate a judicial process for the reduction of sentence imposed on a convict where such a convict has before any proceedings, made possible or facilitated the identification of other accused persons and their sponsors or who, after commencement of the proceedings has made possible or facilitated the arrest of such persons. The court has the discretion to reduce the sentence as it may deem fit. Also the attorney-General may under Section 32 of the TPA – 2011 (as amended) apply to a judge in chambers for an interim Order to attach or seize the assets of any person who has been charged or is about to be charged under the Act.

The Office of National Security Adviser (ONSA)

The office of the National Security Adviser (ONSA) is now the coordinating body for all security and law enforcement agencies in matters relating to terrorism. The office also has the mandate to ensure the effective formulation and implementation of a comprehensive counter-terrorism strategy for Nigeria, build capacity for the effective discharge of the functions of all relevant security, intelligence, law enforcement and military services under the Act or any other law on terrorism in Nigeria. It is further conferred with the omnibus power “to do such other acts or things that are necessary for the effective performance of the functions of the relevant security and enforcement agencies. (See s.1A (a) (b) (c) & (d). For the avoidance of doubts, law enforcement and security agencies are identified as the Nigeria Police Force, Department of State Security Services, Economic and Financial Crimes Commission, National Agency for the Prohibition of Traffic in Persons, National Drug Law Enforcement Agency, National Intelligence Agency, Nigeria Customs Service, Nigeria Immigration Service, defence Intelligence Agency, Nigeria Security and Civil Defence Corps (NSCDC) Nigerian Armed Forces and Nigeria Prisons Service and any other agency empowered by an Act of the National Assembly (s 40).

It is pertinent to state here that pursuant to the provisions of section 1A, a Counter Terrorism Centre (CTC), the Joint Terrorism Analysis Branch (JTAB) and the Behavioural Analysis and Strategic Communication Unit were established to enhance the effective performance of the role of ONSA in coordinating the law enforcement agencies, intelligence sharing and cooperation amongst the agencies. The effectiveness of these bodies is not very pronounced. The ability of the terrorists to plan, develop and execute their attacks without detection clearly exposes the weakness or ineffectiveness of these bodies.

Jurisdiction

Section 32 of the TPA 2011 (as amended) vests the jurisdiction to try and punish terrorist offences on the Federal High Court “located in any part of Nigeria, regardless of the location where the offence is committed”. And as a corollary of the jurisdiction to try offenders under the Act, the FHC is empowered to impose sentences of varying degrees and fines to individuals found culpable (S. 32(2). In addition, a convict under the Act may be required to forfeit any asset used to commit the offence or connected with it. In order to forestall delay in hearing terrorism cases, the Act empowers the FHC to “adopt all legal measures necessary to avoid unnecessary delays and abuse in the conduct of matters. (s. 32(5). And, one measure prescribed by the Act itself is for the court to refuse to entertain applications for stay of proceedings until judgment is delivered (s. 32(6). My observation here is that, by the time judgment is delivered, it is doubtful if there would be any proceeding to be stayed. And, in any event, the court would have become functus officio. The point was well made by Kabiri –Whyte, JSC (as he then was) in Sanusi v. Ayoola [74] that a court, on disposing of a cause before it renders itself functus officio as it ceases to have jurisdiction over such case. My apprehension about the jurisdiction of the FHC, nevertheless, is that the court is already overloaded, especially, having regard to the long list of items contained in section 251 of the 1999 Constitution (as amended) and other statutes over which it has power to exercise jurisdiction.

One of the amendments effected in respect of the jurisdiction of the FHC is the power of the court to try terrorist offences “whether or not the offence was committed in Nigeria and completed outside Nigeria”(75). This provision must have been influenced by the decision of the South African High Court in The State v. Okah SS94/2011 in which the accused, who was resident in South Africa, was tried and convicted for his involvement in the planning and organising of two car bomb attacks in Nigeria wherein several people were killed and many injured. The South African Court predicated its authority to hear and determine the case upon the fact that “South Africa is a member of the United Nations and therefore committed to executing its obligations in terms of international instruments dealing with terrorism and related activities.” (p3). Nigeria is signatory to all the relevant Conventions and Protocols.

Conclusion

Terrorism remains a major threat to Nigeria’s peace and security. Terrorism is not peculiar to Nigeria but a feature of modern society. The absence of, or insufficient legal framework and the inertia of Nigerian authorities in the early days of Boko Haram contributed immensely to the escalation of the insurgency. The efforts of the military at recovering Boko Haram’s ‘conquered territories’ in the last few weeks are commendable; although, it is disheartening to read in the pages of newspapers, statements credited to the President-elect, Mohammed Buhari, that the much that has been achieved by the military has been through the instrumentality of South African mercenaries! [76]. There is no doubt that, effective police action or military action, within the precincts of law, can certainly reduce terrorist threats, as it is evident from the on-going military action. We should, however, not operate under the illusion that military action alone can eradicate terrorism completely. Unless terrorist groups themselves decide to abandon armed struggle, it may be difficult to overcome them by force, having regard to the asymmetric nature of their approach.

The enactment of TPA 2011 (as amended) can be regarded as a right step, albeit, it came a little bit late. Again, it must be stated here, that law can only be  a means to an end. Legislation alone cannot end terrorism. Boko Haram might end up being defeated but that may not put an end to terrorism. Until the root causes that make Nigeria a fertile ground for terrorism, such as poverty, joblessness, unresolved conflicts, social injustice and corruption are addressed, we may have to contend with the monster for a very long time to come.

He remained the spiritual leader of Boko Haram until 2009 when he was killed in extra-judicial circumstances. Boko Haram came into limelight in 2009 when it sparked off an uprising by the refusal of its members in Maiduguri to wear helmets, while riding motor cycles, as required by a motorbike helmet law of Borno State. This generated a conflict between members of the sect and policemen that attempted to enforce the law. The violence that erupted as a result of this conflict left over 1000 people dead. The violence soon spread to other major cities of Bauchi, Potiskum, Kano and Wudi. In Maiduguri alone, where several churches, a police station and a prison were set ablaze, over 700 people were killed. The uprising was eventually crushed by the police and military, leaving the sect’s headquarters and mosque in ruins.

In the aftermath of the July 2009 unrest, Mohammed Yusuf, the leader of Boko Haram was killed. He was captured by the army and passed to the police for interrogation. He died in police custody. It is alleged that he was killed extra-judicially. Upon the demise of Yusuf, the sect members went underground and resurfaced with brutal dispositions and determination.

Thereafter, Abubakar Shekau emerged the leader of the sect. Boko Haram gathered more momentum under him and became very ruthless, as it was determined to avenge the brutal killing of its leader, Yusuf. Since then, the sect has embarked on the mission of committing heinous offences such as gruesome mass killings of defenceless innocent people, including women, children and bystanders by bombing. The sect soon transformed into a terrorist organisation.  The remark of President Jonathan on the activities of Boko Haram since 2009 is worthy of recapitulation here. In a speech delivered at the regional summit on security held in France in 2014, he stated thus:

Since 2009, we have had to contend with many attacks and killings, which have now developed into a full-scale war targeting the stability and integrity of our nation. Boko Haram has launched a vicious guerrilla-style campaign against the government and the people of Nigeria. It has attacked schools, slaughtered students in their dormitories, destroyed villages, communities and government infrastructure and has wreaked havoc on the economic and social life of our people. This unconventional war has so far claimed over 12,000 lives, with more than 8, 000 persons injured or maimed, not to mention the displacement of thousands of innocent Nigerians’’ (n.p.)

But then, it is on record that Boko Haram was allowed to operate as a legitimate organization over the years. It was only in June 2013 that Jonathan administration, belatedly, in my view, declared Boko Haram and Jama’atu Ansarul Muslimina Fi  Biladis Sudan also known as Ansaru proscribed organizations.

The brutal manner by which Mohammed Yusuf was killed has been advanced as one of the factors that stemmed up Boko Haram insurgency. According to Sandra Ivanov (2014), the clashes that resulted in the killing of Mohammed Yusuf in 2009 marked a significant turning point which cemented Boko Haram choice of use of violence.  Yusuf was said to have been assaulted, brutalized and dehumanised before he was killed, extra judicially. Consequently, many members of the sect were determined to avenge the unfair circumstances surrounding the death. In a way, Boko Haram insurgency exemplifies the tragedy one singular act of impunity can cause a nation. The lesson to be learnt is clear: impunity should never be encouraged. Security agencies should endeavour to observe the basic tenets of the rule of law and respect for fundamental human rights in the treatment of suspects in their custody. The observation of Professor Akin Oyebode on this point is apt and instructive:

“…where and when every member of society is assured of his day in court, there would be no room or justification for terrorist acts. However, denial of justice and resort to terrorist acts by the government itself could well provide much-needed ammunition to forces that do not wish it well and who may now insist on a policy of “fighting fire with fire.”

To be sure, violence is not particularly strange to Nigeria. The history of Nigeria is replete with record of violence. There have been instances of skirmishes recorded in one part of the country or another over the years, consisting of ethno-religious clashes, inter-ethnic violence, intra-ethnic conflicts and religious crises. Interestingly, however, before the advent of Boko Haram insurgency, none of the acts of violence or anarchism perpetrated in Nigeria which caused the deaths of thousands of innocent victims was characterised as terrorism. For instance, there were the Movement for the Emancipation of Niger Delta (MEND) and the Niger Delta Peoples Volunteer Force which held Nigeria spellbound for a period over three years by their violent acts. The militant groups killed, maimed and kidnapped innocent citizens. They attacked petroleum operations in Nigeria and engaged in other criminal activities such as guerrilla warfare, sabotage, theft and destruction of property.  There were also the Maitatsine riot of 1980,Odi massacre of  November 20, 1999 in which a whole village was razed to the ground and over 2,500 people died Yelwa massacre of 2014, a religiously motivated killing that claimed the lives of 700 people.Each of these violent acts was treated and described as either “militancy”, or “extremism” or uprising”, or “riots”.

Unarguably, the horrendous dimension of violence being ventilated and perpetrated by Boko Haram is novel and alarming. This has created a climate of fear and insecurity in the entire land. 2014 marked the height of Boko Haram brutalities. The frequency and fury of atrocities of the insurgents in that year have been shocking. The fundamentalists were more ruthless in their onslaughts not only on the civilian population but also on military installations and personnel. They became increasingly dangerous and daring. They also heightened the scope and sophistication of their operations. It was in that year that members of the sect kidnapped over 270 school girls at a village called Chibok on April 14, 2014. Of all the crimes the insurgents have committed, none has traumatised the country quite like the abduction of those girls. The girls, aged between 16 and 18 were preparing to write exams when they were taken from school hostels late at night. About 50 of them escaped. Others have remained in Boko Haram captivity for a period of over twelve months now. It is thought that the militants initially took the girls to Sambisa forest. Subsequent reports, however, suggest that some may have been trafficked into neighbouring countries of Chad, Niger and Cameroon, and forced to marry. A new dimension is also added to Boko Haram insurgency as it is confirmed that insurgents in that same year embarked on a mission of conquering part of Nigeria’s territory. At a point, it is reported that about 20,000 square miles of Nigerian territory was under the firm control of Boko Haram with the main object of declaring such conquered territory a ‘Caliphate’ .

Statutory definition of terrorism in Nigeria

Terrorism is one word that does not render itself to easy definition. Indeed, there is a consensus of opinions of writers, scholars, researchers, policy makers and even the media that terrorism is difficult to define H. H. A. Cooper (2013)  notes that there has never been since the topic began to command serious attention, some golden age in which terrorism was easy to define.  So, the debate of what terrorism is has become perennia The unalterable truth remains that there are hundreds of definitions of terrorism in existence. Giventhis scenario, it is acceptable to simply say that there can be as many definitions as there are people defining terrorism. By and large, the meaning ascribed to the word is a reflection of a person’s perspectives, background and philosophy. The definitional ambiguities embedded in the word ‘terrorism’ are encapsulated in the popular cliché; one man’s terrorist is another man’s freedom fighter, which immediately suggests the lack of consensus in determining who should be designated a terrorist or what act should be considered terrorist act. The lack of some kind of generic definition of terrorism that can serve as a common reference point for countries has created a situation in which each country has its own definition of terrorism and proceeds to determine those it wishes to call terrorists or freedom fighters.

The scope of this paper does not permit an excursion into the numerous definitions of terrorism by scholars, writers, jurists, and the media e.t.c., as I am limited by time and space. I shall, therefore, restrict myself to the statutory definition of the concept in Nigeria. The TPA (as amended) carefully avoids the definition of terrorism, as a concept. Rather, it defines ‘acts of terrorism’. I should think that the definition of terrorism is contextually important, because only an offence that meets such a definition falls under the strictures of the law. In a sense, the definition establishes the threshold of terrorism. This is particularly so, as the word terrorism appears sixty-eight times in the TPA 2011 (as amended). While it is agreed that there is no globally accepted definition of terrorism, it is on record that many countries proceed to provide definitions in their statutes.

The statutory definition of terrorism in Nigeria remains Section 46 of the EFCC (Establishment) Act 2004. It provides: (a) any act which is a violation of the Criminal Code or the Penal and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public property, natural resources, environmental or cultural heritage and is calculated or intended to (i) intimidate, put in fear, force, coerce, or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act or to adopt or abandon a particular standpoint, or to act according to certain principles, or (ii)        disrupt any public service, the delivery of any essential service to the public or to create a public emergency, or (iii)          create general insurrection in a state.

Any promotion, sponsorship of, contribution to, command, aid incitement, encouragement, attempt, threat, conspiracy, organisation or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i), (ii), and (iii).

To me, this definition is vague and excessively broad. It is unclear, particularly, in the articulation of the elements of the crime of terrorism. For instance, what is an act “that is a violation of the Criminal Code or the Penal Code which may endanger the life of any person? In clauses (i) (ii) and (iii), any act that is calculated or intended to intimidate, put fear or force or coerce any government a body or institution e.t.c. to do any act or to adopt or abandon a particular standpoint or to act certain principles or disrupt any public service, the delivery of any essential service will amount to terrorism. By the definition of terrorism under Section 46 of the EFCC Act, it means doctors and nurses who provide essential services cannot embark on strike actions. One danger of a broad definition as contained under EFCC ACT is that it opens doors of abuse and can be utilised by oppressive regimes for political games.

Terrorist Acts

Section 1(3) of the TPA (as amended) defines an “act of terrorism” as an act which is deliberately done with malice aforethought and which may seriously harm or damage a country or an international organisation. Any act also amounts to terrorism when it is done deliberately with malice aforethought and is intended to unduly compel a government or international organisation to perform or abstain from performing any act. A terrorist act is committed when done with the requisite intent, it seriously destabilises or destroy the fundamental political, constitutional economic or social structures of a country or international organisation by intimidation or co-ercion. It also amounts to a terrorist act where it involves or causes an attack upon a person’s life that possibly results in serious bodily harm or death. Intimidating or coercing a government or international organisation is a terrorist act where it involves or causes: the kidnapping of a person, or destruction of a government a public facility, or private property, amongst others. This is, particularly, so where the act is likely to endanger human life or result in major economic loss.

There is an omnibus provision which criminalises and treats as terrorist act “any act or omission in or outside Nigeria which constitutes an offence within the scope of a counter- terrorism protocols and conventions duly ratified by Nigeria. An act which disrupts a service but is committed in pursuance of a protest is also a terrorist act. However, strikes and demonstration are excluded from the definition of terrorist acts, provided they are not intended to result in any harm referred to in subsection (2) (b) (i), (ii) or (iv). The harm referred to in the section include seriously intimidating a population influencing a government or international organisation by coercion intimidation.

It is curious to see that the TPA 2011 (as amended) still adopts the common law concept of “malice aforethought” which has long been jettisoned by the Supreme Court of Nigeria.

Terrorism offences

Basically, the consequences of terrorism affect people and property. It has been argued in some quarters that the TPA 2011 (as amended) encompasses crimes that are prosecutable under Nigerian criminal law, and which, if applied, could curb the crime of terrorism to a large extent.  Indeed, it is said that the TPA Act 2011 (as amended)  …has only captioned, in one coded form, several offences in the Criminal Code of both the Federation and the States although there is no direct heading titled terrorism in the Code”. It is further stated that there are provisions in both the Criminal Code and Penal Code which criminalise acts that injure people and property which may simply be updated to deal with terrorism. For instance, it is said, that the Criminal Code Act contains provisions, inter alia, on murder. manslaughter, kidnapping as well as unlawful deprivation of liberty, offences against the safety of maritime navigation, unlawful attempts to injure by use of explosive substances, and unlawful societies. Similarly, the Penal Code provides for the following offences: culpable homicide punishable with death, culpable homicide not punishable with death, voluntarily causing hurt, wrongful confinement, kidnapping mischief to vessel, injuring and unlawful society, which are sufficient to deal with the spate of terrorism in Nigeria. As plausible as the arguments may appear, the truth remains that none of the Nigerian penal laws mentions terrorism as an offence at all, in the way murder or culpable homicide is mentioned. Only some aspects of terrorism are covered in the criminal law which, to me, will not give terrorism the emphasis and due attention it deserves. Furthermore, promulgation of anti-terrorism laws is consistent with trends in international law and practices from which Nigeria cannot isolate herself.

The following new line of offences are created under the TPA 2011 (as amended): (a) murder, kidnaps or other attacks on the person or liberty of an internationally protected person (s. 3) (b); terrorist meetings (s. 4) (c); soliciting and giving support to terrorist groups for the commission of a terrorist act (s.5) (d); harbouring terrorists or hindering the arrest of a terrorist (s. 6) (e); provision of training and instruction to terrorist groups or terrorists (s. 7) (f); concealment of information about acts of terrorism (s. 8) (g); provision of devices to a terrorist (s.9) (h); Recruitment of persons to be members of terrorist groups or to participate in terrorist acts (s.10); (i) incitement, promotion or solicitation of property for the Commission of terrorist acts (s. 11); (j) provision of facilities in support of terrorist acts (s. 12); (k) financing of terrorism (s. 13); (l) dealing in terrorist property (s. 14), (m); hostage taking (s. 15); (n) membership of a terrorist group or proscribed organisation (s. 16); (o) conspiracy to commit terrorist acts (s. 17); (p) aiding and abetting terrorist acts (s. 18); (q) escape or aiding and abetting escape (s. 19); (r) attempt to commit an offence under the Act (s. 20); (s) preparation to commit terrorist acts (s. 21); (t) unlawful assumption of character of officer of any law enforcement or security (s. 22); (u) tampering with evidence and witness (s. 23); (v) obstruction of any officer of a law enforcement or security agency (s. 24) amongst others.