Laws are enacted to circumscribe and
circumvent the furtherance of crimes in a particular society or to deter members
of a society from committing crimes.
In Nigeria, there are a number of
enactments that circumvent terror- related offences. In this topic, we shall be
considering the provisions of all those enactments as they related to
terrorism.
The 1999 Constitution of the Federal
Republic of Nigeria, the criminal code LFN (2004), the penal code, central bank
of Nigeria Anti-Money Laundering/ Combating the Financing of Terrorism (AML/CFT)
Regulation 209 ( as amended) terrorism (prevention) Acts, 2011 (as amended 2013)
etc.
Many measures have been adopted by
Nigeria to combat terrorism. As Kofi Annan6 puts it, “human rights law makes ample [1] provision
for counter-terrorist action, even in the most exceptional circumstances. But
compromising human rights cannot serve the struggle against terrorism. On the
contrary, it facilitates achievement of the terrorist’s objective by ceding him
the moral high ground, and provoking tension, hatred and mistrust of government
among precisely those parts of the population where he is most likely to find
recruit. Upholding human rights is not merely compatible with successful
counter-terrorism strategy. It is an essential element7”.
One of the most well known measures
adopted by the Nigerian government has been (in my own terms) “the negotiation
measures” or Amnesty International. Under this measure, the Nigeria state sat
and negotiated with the terrorists and after such negotiation(s), granted them
amnesty and gave them a whooping sum of money8.
Going by Annan’s words above, it
seems that Nigeria during the period of Amnesty international “compromised
human rights” and therefore, did not “serve the struggle against terrorism9”.
[2] However,
there are several statutory provisions that combat terrorism. For instance section
4 (2) of the 1999 constitution of the Federal Fepublic of Nigeria, empowers the
National Assembly to “make laws for the peace, order context of
counter-terrorism, section II of the same constitution empowers the National
Assembly to “make laws for the Federation or any other part thereof with
respect to the maintenance and securing of public safety and public order and
proving maintaining and security of such supplies and services as may be
designated by the National Assembly as essential supplies and services.
Pursuant to the above provision of the constitution and other relevant laws,
the National Assembly, with the assent of the President of the Federal Republic
of Nigeria enacted the terrorism (prevention) Act 2011 (as amended), (as
amended), (hereinafter “TPA”). Prior to the enactment the TPA, Nigeria’s counter-terrorism
laws were, in large measure predicated on relevant provisions of the criminal
code (for the southern part of Nigeria) and penal code (for the northern part
of Nigeria) whose character, scope and contemporary relevance were very
limited.
The TPA 2013 which spans through 20 sections
contains far reaching provision ranging from definition and proscription of
acts of terrorism to intelligence gathering, prevention, investigation and prosecution
of alleged terrorists as well as mutual legal assistance.
Section 2(1) of the TPA provides,
“All acts of terrorism and financing of terrorism are hereby prohibited”. The
TPA under a new subsection 2 of section 1 provides.
A person or body corporate who
knowingly or outside Nigeria directly or indirectly willingly.
(a) does, attempts or threatens any act of
terrorism;
(b) commits an act preparatory to or in
furtherance of an act of terrorism.
(c) omits to do anything that is reasonably
necessary to prevent an act of terrorism
(d) assists or felicitates the activities of
persons engaged in an act of terrorism
or an accessory to any offence under this Act;
(e) Participates as an accomplice in or
contributes to the commission of any
act of terrorism or offences under this Act,
(f) Assists, facilitates, organizes or
directs the activities of persons or organizations
engaged in any act of terrorism,
(g) Is an accessory to any act of terrorism,
or,
(h) Incites, promises or induces any other
person by any means whatsoever to commit
any act of terrorism or any of the offences referred
to in this Act,
Commits an offence under this Act
and is liable on conviction to maximum of death sentence.”
From the above provision, it is
conspicuously deducible that any offence of terrorism (whether by direct or
indirect involvement), is a capital offence.
Under the criminal code, the issue
of terrorism is implied rather than express this can be seen in part 2 of the
criminal code which provides for offences of treason10, and
instigating invasion of Nigeria11.
Under section 37 of the criminal
code, the code provides for treason and states under subsections 1 and 2 of the
section thus;
1. Any
person who levies war against the state, in other to intimidate or overawe the
president or the Governor of a state, is quality of treason, and is liable to
the punishment of death.
2. Any
person conspiring with any person either within or without Nigeria, to levy war
against the state with intent to cause such levying of war as would be treason
if committed by a citizen of Nigeria is guilty of treason and is liable to
death.
Provided that nothing in this
section shall prevent any act from being treason which is so by the laws of
England as in force in Nigeria.
Any person who instigates any
foreigner to invade Nigeria with an armed force is quality of treason, and is
liable to the punishment of death [3]It
is worth nothing that where an offender who the opinion of the court had not
attained the age of seventeen years at the time offence was committed has been
found quilt of an offence against either section 37 or 38 of this code, such
offender shall not be sentenced to death but shall be ordered to be detained during
the pleasure of the president and upon such an order being made the provisions
of part 44 of the criminal procedure Act shall apply12.
And also where a woman who has been
convicted of an offence against either section 37 or 38 of the code alleges she
is pregnant or where the judge before whom she is convicted considers it
advisable to have inquiries made as to whether or not she be pregnant, the
procedure laid down in section 376 of the criminal procedure Act shall first be
complied with13.
Before we consider the provisions of
part 44 and section 366 of the criminal procedure Act, in line with the
provisions of subsections 1 and 2 of section 39 of the criminal code, we shall
first consider the conflict between the criminal code and the child’s Right Act
Laws of the Federation of Nigeria (LFN), 2003 as to “who is a child”.
The child’s Right Act defines a child as a person under the age of eighteen years14. On the converse, the import of section 39(1) of the criminal code is that a child is a person below the age of seventeen. This is to say that the two definitions of who a child is are not tangential.
However, the child Right Act
provides that the provision of the Act supersede the provisions of all
enactments relating to children15.
In my humble submission, I would
proffer that judges who are ministers in the temple of justice use their sacred
discretion to determine who a child is.
What were the provisions of part 44
and section 376 of the criminal procedure Act as prescribed by section 39 of
the criminal code.
Part 44 of the Nigerian criminal
procedure, Act, has only one section and it provides for “detention during the
pleasure of the president”. The part provides;
1. When any person is
ordered to be detained during the pleasure of the president he shall
notwithstanding anything in this Act or in any other written law contained be
liable to be detained in such place and under such conditions as the president
may direct and whilst so detained shall be deemed to be in legal custody.
2. A person detained during the pleasure of
the president may at any time be
discharged by the president on licence.
3. A
licence may at any time be revoke or varied by the president and where a licene
has been revoked the person to whom the licence relates shall proceed to such
place as the president may direct and if he fails to do so may be arrested
without warrant and taken to such place16.
Section 376 of the criminal
procedure Act provides for the procedure where woman convicted of capital
offence is alleged to be pregnant. It provides thus;
1. Where
a woman convicted of an offence punishable with death alleges that she is
pregnant, or where the court before or by which a woman is convicted of an
offence punishable with death alleges that she is pregnant, or where the court
before or by which a woman is convicted thinks fit so to do the court shall,
before sentence is passed on her, determine the question whether or not she is
pregnant.
2. The
question whether the woman is pregnant or not shall be determined by the court
on such evidence as may be laid before it on the part of the woman or on the
part of the prosecution, and the court shall find that the woman is not pregnant unless it is provide affirmatively to the
satisfaction of the court that she is pregnant.
3. Where
on proceedings under this section the court finds the woman in questions is not
pregnant the court shall pronounce sentence of death upon her.
4. An
appeal shall lie to the Supreme Court against such finding and that court, if
satisfied that the finding should be set aside, shall quash the sentence passed
on her and in lieu thereof pass on her a sentence of imprisonment for life.
5. The
rights conference by this section on a woman convicted of an offence punishable
with death shall be in substitution for the right of such woman to allege in
stay of execution that she is quick with child the last mentioned right having
ceased to exist.
6. The
court shall report to the appropriate authority any case in which the court passes
a sentence of imprisonment for life under this section.
Going back to the TPA, it is worth
nothing that earlier stated provision of section 2 of the TPA is the amendment
of section 1 of the TPA. The terrorism (prevention) Act, 2013 completely eliminates
some sections in the terrorism (prevention) Act, 2011 that were obnoxious or
rather that raise human rights concerns. For instance, sections 9, 12, 26 and
28 of the TPA, 2011 repose enormous powers in the National security adviser, Inspector
General of Police and the state security service with little or no oversight or
framework for accountability. Specifically, section 28 provides that where a
person is arrested under reasonable suspicion of having committed any offence
under sections 1,2,3,4,5,6,9,10,11,13, or 14 of that very Act, the National
Security Adviser or Inspector General of Police or a delegated officer not
below the rank of the Chief Superintendent of Police or its equivalent may,
subject to the section, direct that the person arrested to be detained in a
custody for a period not exceeding 24 hours from his arrest, “without having
access to any person other than his medical doctor and legal counsel of the
detaining agency. “This statement contravenes the provision of section 35(2) of
the 1999 constitution17, pursuant to which “any person who is
arrested or detained shall have the right to remain silent or avoid answering
any question until after consultation with a legal practitioner or any other
person of his own choice”. Similarly, section 32(1), which is to the effect
that the Federal High Court “shall have the
sole
jurisdiction to try an offence and impose the penalties specified in this Act”.
Good to note that on February 21,
2013 the TPA, 2011 was amended. The new amendment addresses some of the human
rights concerns of the TPA, 2011. First, the enormous powers of the National
Security Adviser, the Inspector General of Police and the State Security
Service under the TPA are either directly reposed in the Attorney-General of
the Federation or exercisable against the backdrop of a framework which
explicitly states that the Attorney-General of the Federation “shall be the
authority for the effective implantation and administration of this Act and
shall strengthen and enhance the existing legal framework to ensure – (a)
conformity of Nigeria’s counter- terrorism laws and polices with international
standards and United Nations Conventions on terrorism18”, while the
office of the National Security Advisor shall be the coordinating body for all
security and enforcement agencies.
Second, clause “without having
access to any person other than his Medical Doctor and legal counsel of the
detaining agency” under[8] section
28 of the TPA, 2011 has been replaced with the clause “a medical officer of the
relevant law enforcement or security agency or his counsel”19.
Third, having regard to privacy rights, while section 26(1)
of the TPA 2011 ad provided that “… the Attorney General of the Federation, the
National Security Adviser or the Inspector General of Police may for the
purpose of the prevention or detection of offences or the prosecution of
offenders under this Act, give such directions as appear to him to be necessary
to any communication service provider, the TPA (as amended) now provides that
“without prejudice to any other law, the relevant law enforcement agency with
the approval of the Attorney- General of the Federation may, with the approval
of the coordinator on National Security for the purpose of the prevention of
terrorist acts or to enhance the detection of offences related to the
preparation of a terrorist act or the prosecution of offenders under this Act
apply ex-parte to a judge for an interception of communication order20”
Forth, an amended section 32(1) of section 15 of TPA,
2013 provide that “the federal high court located in any part of Nigeria, [9]regardless
of the location where the offence is committed shall ha jurisdiction to (a) try
offences under this Act or any other related enactment”.
Note that the implied provisions of
the criminal code, combating terrorism still go ahead to include the offences
of murder21, the punishment for which is death.
Having X-rayed the laws that combat
terrorism in Nigeria, we shall be looking into the laws that combat terrorism
internationally.
6 The former Secretary General
of the United Nations
7 Kofi A. ,
“A global strategy for fighting
terrorism”, Keynote address to the closing plenary of the international summit
on Democracy, terrorism and security, 8-11 March 2005, Madrid.
8. The Niger-Delta Militancy Amnesty
9. Kofi Annan (supra)
10 Section 37
of the Criminal code
11 Section 35 of the Criminal code
12 Section 39(1) of the Criminal Code
13Section 39(2) of the Criminal Code
14 Section 277 of the Child’s Right Act,
2003
15 Section 274(1) (a) of the child’s Right Act.
16 Section 401 of
the Criminal Procedure Act
17 Laws of
the Federation of Nigeria (2011, Amended)
18 Section 1A (2) (a) of the Terrorism (Prevention)
(Amendment Act, 2013
19 Section 13
of TPA, 2013 (amending section 28(1) (a)
20 Section 13 of the TPA, 2013 (amending 29(1) )