One may jump into the conclusion that both Nigerian and international
laws combating terrorist activities have not recorded any successes. Though
this may be true, it can be a hasty conclusion. The
only success that both national and international laws have achieved has remained
the enactment of laws that combat terrorism. As we discussed earlier, there are
thirteen intentional conventions that tend to combat any terror-related
offences. In Nigeria on the other hand,
there is a seeming “impeccable” anti-terrorism act (ie), the terrorism
(prevention) Act, 2011 which was amended in February 2013. In Nigeria (better
still), there is the Central Bank of Nigeria’s (CBN’s) regulation on combating
the financing of terrorism (CFT), 2011.
The
success of every law is recorded on the very basis of its efficiency in
combating the very act against which the law was enacted. But on the issue of
combating terrorism, despite the various conventions in that regard, there have
been no cases of terrorism save where the issue of terrorism affects the
fundamental human rights of the terrorist suspect.
There
have never been comments by writers and commentators on the success of both
national and international laws in counter-terrorism.
However,
despite the success of making laws and conventions that combat terrorism, there
have been bombardments of “acidic vituperations” by both human rights activists
and other academic critics who lampoon all the thirteen conventions of the UN
against terrorism. The
human rights critics argue that counter-terrorism must comply with human rights
standards and the flexibility built into human rights law to deal with
exceptional circumstances10.
In
Nigeria, the laws that combat terrorism do not create the methods by which
terrorist activities can be detected. Taking proactive measures to forestall
unwanted events is alien to the country11.
[1]Nigeria’s response to terrorism laws has unfortunately
not yielded any good results. Nigeria instead of mapping out strategies of
combating terrorism has resorted to the use of vicious suppression of
opposition by the use of force12.
One alarming thing with this use of force is, in spite of this frequency
of attacks including suicide bombings has ceased to abate13. This is
one of the failures of Nigeria’s counter-terrorism. There have been reports of
extra-judicial killings by the military and other security agencies, all in
their bid to quench insurgence14.
The President Goodluck
Jonathan’s adoption of a hard-line approach devoid of political sophistication
threatens to worsen the situation. The armed forces and police have no absolute
jurisdiction in the north and can conduct large-scale operations with impunity.
The brutalities of some elements in the security forces, particularly the Joint
Task-Force (JTF), have embittered locals who in some cases fear the Joint Task-Force
(JTF) more than the Boko Haram15.
In
reviewing the provisions of the terrorism (prevention) amendment) Act, 2013, we
shall see a lot of flaws in the Act as they contravene the human rights
provisions.
[2]
First,
it explicitly provides for extra-territorial application of the Act (which
could, depending on the context, contravene the prohibition of double jeopardy
under section 39(9) of the Nigerian constitution).
Second,
the new section13 of the terrorism (prevention) amendment) Act, 2013 (Amending
section 28 of the TPA, 2011) though an improvement on the old section 28, still
contravenes the “any other person of his own choice” stipulation of section
35(2) of the Nigerian constitution.
Third,
several provisions of the amendment Act repose considerable sentencing
discretion in the courts (which in the absence of sentencing guidelines or in
the hands of a capricious judge, is susceptible to abuse, as exemplified by the
justice Talba Saga15). In this vein, the new section 1(2) presents
significant human rights concerns.
A
person or body corporate who knowingly in 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 [3]
(c) Omits to do anything that is reasonably necessary to prevent an act of terrorism,
(c) Omits to do anything that is reasonably necessary to prevent an act of terrorism,
(d) Assists
or facilitates 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.
The
subjection of the enumerated acts or omissions (including “threats”) ‘to
maximum of death penalty”, irrespective of the gravity of the offence, under
mines the principle of proportionality and is open to abuse.
Fourth,
the death penalty provision of the Amended Act goes against the grain of the
trend/movement for the abolition of the death penalty, as exemplified by the
second optional protocol to the international covenants or civil and political
rights and similar initiatives (especially under the European human rights
required).
Fifty,
section 13 (27), which provides that the 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 unit 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 Nigerian 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, 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 data 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 preceding
that may be brought against him) be released either unconditionally or upon
such conditions as reasonably necessary to ensure that he appears for trail at
a later date. According to sub-section 5, the expression “a reasonable time”
means.
i. In
the case of 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
ii. In any other case of an arrest or
detention in any
iii. 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.
Sixth,
the new section 13 in amending 28(1) which provides that “where 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 forty eight
hours”, potentially contravenes section 35(4) and (5) of the constitution which
provides, “in the case of arrest or detention in any place where there is a
court of competent jurisdiction with a radius of forty kilometres”.
From
the points made above, it is deducible that the Nigeria’s counter-terrorism
marks a colossal failure. In a recent Amnesty
international report tilted “Nigeria trapped in the cycle of violence”
alleges that “many of the acts that the Nigerian authorities have undertaken in
the name of countering the threats to the public poses by Boko Haram have
themselves involved serious violations of the human rights, including enforced
disappearance, torture, and extrajudicial executions- crimes under
international law which, by virtue of its international obligations, Nigeria is
superficially required to investigate without delay and, where there is
sufficient admissible evidence, to prosecute those responsible…”17
Internationally,
the conventions that counter terrorism have failed in their course to fight
terrorism by:
1. The
lack of a universally accepted definition of terrorism18, this
increases the possibility of human rights violations and negatively impacts the
ability of the international community to combat terrorism. There has not been
a universal definition of terrorism. This means that terrorism is what any
state calls it and should not be so. For an effective counter-terrorism there
is the need for universally accepted definition of terrorism.
2. Implication
of human rights due to lack of transparency and adequate judicial oversight of
counter-terrorism measures.
This is the case of Nigeria where there is lack of
adequate judicial oversight of counter-terrorism. And for there to be an
error-free counter-terrorism approach, there must be adequate judicial
oversight and not a military-violent approach.
[4]
10 “Human
Rights, Terrorism and Counter-Terrorism”: Office of the United Nations High
Commissioner for Human Rights. Fact Sheet No.32
11 Osho O. “Combating Terrorism with Cyber Security” The
Nigerian Perspective” World Journal of Computer application and Technology
1(4): 103-109, 2013
13 “Responding to terrorism in Nigeria “retrieved from www.234next.com/csp/sites/next/news/
responding to terrorism in Nigeria
CSP accessed on 25th November
2013
14 Human Rights Watch (2011), “A human Rights Agenda
for candidates in Nigeria’s
2011 Elections” http://www.hrw.org extracted on10th November, 2013