On Wednesday, September 20, 2017 the Federal High Court of Nigeria, Abuja division presided over by the Acting Chief Judge, The Honourable Justice Abdul Kafarati granted the application of the Honourable Attorney General of the Federation on behalf of the Federal Government of Nigeria on an order declaring the Indigenous People of Biafra illegal and proscribing it as a terrorist organization. Following the order, there have been reactions from a section of the public and civil society that the order proscribing IPOB is unconstitutional because IPOB is not a registered body in Nigeria. Okoi Obono-Obla, and Chairman Special Presidential Panel for the Recovery of Public Property, supports the order of the court on its declaration that IPOB is a terrorist organization and says the purpose of this treatise is to correct the impression that the order is unconstitutional.
According to him “The Terrorism (Prevention) Act did not stipulate that a body must be registered in Nigeria or elsewhere before it can be proscribed, within the contemplation of the provisions of Section 2 subsection 1 of the Act. Indeed Section 1 subsection (a-h) of the Terrorism (Prevention) Amendment Act, 2013 provide as follows thus:
A person or body corporate who knowingly in or outside Nigeria directly or indirectly willingly:
does, attempts or threatens any act of terrorism,
commits an act preparatory to or in furtherance of an act of terrorism,
omits to do anything that is reasonably necessary to prevent an act of terrorism,
assists or facilitates the activities of persons engaged in an act of terrorism or is an accessory to any offence under this Act,
participates as an accomplice in or contributes to the commission of any act of terrorism or offences under this Act,
assists, facilitates, organizes or directs the activities of persons or organizations engaged in any act of terrorism,
is an accessory to any act of terrorism, or
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.
Section 2 of the Terrorism (Prevention) Act provides that where two or more persons associate for the purpose of or where an organization engages in-
Participating or collaborating in an act of terrorism,
Promoting, encouraging or exhorting others to commit an act of terrorism, or
Setting up or pursing acts of terrorism, the judge in chambers may on an application made by the Attorney General of the Federation, National Security Adviser or Inspector General of Police on the approval of the President, declare any entity to be a proscribed organization and the notice shall be published in official gazette.”
He went further to say that “From the foregoing, by virtue of the provisions of Section 2 (1) (a) (b) & (c) of the Terrorism (Prevention) Act (supra), the argument that the so-called Indigenous People of Biafra (IPOB) cannot be proscribed because it is not registered in the Federal Republic of Nigeria is not tenable.”
Obono Obla also stated that Similarly, the argument that the proscription of IPOB is tantamount to an infringement of the right of freedom of association as enshrined by Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest does not hold in this instance.
The Constitution in Section 45 (1) (a) & (b) thereof provides thus:(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom or other persons.
“It follows that it is perfectly in order for the Federal Government of Nigeria in view of the terrorism unleashed by IPOB on those who do not subscribe to its separatist and violent ideology which threatens the fundamental rights of Nigerians and threatens national security, corporate and territorial integrity of the country to proscribed it in view of the provisions of Section 45 (1) (a) & (b) of the Constitution.Despite the right of freedom of association secured by Section 40 of the Constitution, Section 62 (2) of the Criminal Code prohibits unlawful society such as IPOB,” he said.
Section 62 (2) of the Criminal Code defines a society as unlawful:
(i) if formed for any of the following purposes‐
(a) levying war or encouraging or assisting any person to levy war on the Government or the inhabitants of any part of Nigeria; or
(b) killing or injuring or encouraging the killing or injuring of any person; or
(c) destroying or injuring or encouraging the destruction or injuring of any property; or
(d) subverting or promoting the subversion of the Government or of its officials; or
(e) committing or inciting to acts of violence or intimidation; or
(f) interfering with, or resisting, or encouraging interference with or resistance to the administration of the law; or
(g) disturbing or encouraging the disturbance of peace and order in any part of Nigeria; or
(ii) if declared by an order of the President to be a society dangerous to the good government of Nigeria or of any part thereof.
Undoubtedly, IPOB is an unlawful society within the contemplation of Section 62 (2) of the Criminal Code. Also, the President is vested with power by Section 62A of Criminal Code.
Section 62A of the Criminal Code provide that without prejudice to the provisions of section 62 of this Code, a society is an unlawful society if it is declared by an order of the President to be a society dangerous to the good government of Nigeria or of any part thereof, and for such purpose the consent of the Attorney-General of the Federation referred to in section 65 of this Code shall be construed as a reference to the consent of the Attorney‐General of the State.
It follows that the proscription order granted by Justice Kafarati is lawful, constitutional and proper.
speaking further, the Senior Special Assistant to The President on Prosecution said “It beats me as to how the argument put forward by Ebun-Olu Adegboruwa, an experienced and tested Legal Practitioner of many years standing, could use the principles of law designed and applicable to Civil Proceedings to argue that the order of proscription of IPOB is faulty because the body is not registered in Nigeria and therefore cannot sue or be sued.”
“It is beyond argument that the application for an order proscribing IPOB was brought pursuant to the Terrorism (Prevention) Act which to all intents and purposes a criminal legislation. It is well settled that the rules of procedure that regulates criminal proceedings in the Federal High Courts and the High Court of the Federal Capital Territory, Abuja, is the Administration of Criminal Justice Act,2015 (not the Federal High Court (Civil Procedure) Rules or the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004,” he said.
Obono-Obla said “It is clear the entire submission of Ebun-Olu Adegboruwa is premised on principles of law based on the construction and interpretation of the Rules of Practice and Procedure relating to civil proceedings. It is therefore non-sequitor.”
“It goes without saying that the order of proscription of IPOB is not in any way faulty in law as submitted by Ebun-Olu Adegboruwa,” says Obono-Obla.
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