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22 Sep 2017

The Proscription Of IPOB: Was The Government Right After All?

Job Sunday discusses the controversial decision of the Federal Government to proscribe the Indigenous People of Biafra.

The Federal Government of Nigeria through its learned Attorney General, Abubakar Malami, SAN, via a Motion Ex Parte (i.e. without Notice to the other party) pursuant to Section 2 of the Terrorism (Prevention) Act 2011/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 seeking 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 that are prejudicial to the interests of the Federal Government of Nigeria and her citizens.

Upon consideration of FGN’s application as presented, all the Orders were granted as prayed. Meanwhile, the fact that the Motion was Ex- Parte does not presuppose that the Orders were granted as a matter of course and it is beyond doubt that the Acting Chief Judge of the Federal High Court, Justice Kafarati must have satisfied himself that the prayers sought satisfy the requirements of the Law in the circumstances. 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 foregoing provision 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 labeling 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.

Consequent 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 criticizing 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 organization 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 organization 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 organization. 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 is 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 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 recognized 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 case, 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 Order was a determination as to whether the provisions of Section 2(1)(a-c) of Terrorism (Prevention) (Amendment) Act 2013 (TPAA) have been sufficiently complied with to warrant the grant of an Order of proscription. 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.

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 Statutes 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, an expert in constitutional law, writes from Michigan, US.

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