The concern of this article is the savage attack on innocent worshippers at St. Francis Xavier Catholic Church, Owo, Ondo State, Nigeria, on Pentecost Sunday, June 5, 2022, by vile terrorists. The beastly attack left over 50 persons, including young children, dead and several more with varying degrees of injury. The importance of Pentecost Sunday in Christian orthodoxy cannot be overemphasised: it is celebrated on the 50th day post Easter Sunday and symbolises the descent of the Holy Spirit upon early Christian adopters and continues until this day. A number of people were kidnapped in the attack. Thus far, no arrests have been made.
The burning questions begging for answers; are how many more innocent people need to die needlessly at the hands of terrorists in Nigeria? With a multiplicity of armed protective outfits responsible for safeguarding internal and territorial security (over air, land and sea) including the Airforce, Army, Customs, DSS, Navy, Police, Civil Defence and Immigration; how is it that these vicious terrorists systematically launch savage murderous strikes against innocent people the length and breadth of the country and elude justice? Is the issue a persistent failure of strategic foresight, co-ordination and execution? Infiltration of the security forces by double agents, fifth columnists and turncoats?
Answers to these posers will differ according to the insightful objectivity of the respondents. Nevertheless, one thing is crystal clear; Nigeria is at war with fundamentalist terrorists who murder, pillage, kidnap and rape at will. No region within the country is untouched by this war and the evidence is overwhelming.
Some examples. The Methodist Prelate in Nigeria, Bishop Samuel Kanu, was kidnapped on May 29, 2022, alongside the Bishop of Owerri, Right Reverend Dennis Mark; and the Prelate’s Chaplain. On March 8, 2022, terrorist gangs murdered 80 people in Kebbi, North Western, Nigeria. March 28, 2022 witnessed the murder of over 50 persons on the Abuja/Kaduna train service with over 60 people still in captivity. SBM Intelligence reports that between January 2019 and May 2022, at least 391were killed by terrorists. And this can only be a tip of the iceberg.
So, exactly what is the strategy here? Are Nigerians to be led, like lamb, to the slaughter ad infinitum? Why hasn’t there been a declaration of a state of emergency given the blindingly obvious fact that the country is at war? Has a rational case been made by those advocating a “soft landing” for terrorists? On what persuasive evidence of redemption and an unequivocal commitment to societal reintegration?
After all, the overriding duty of government is eloquently established in section14 (2) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) viz: “the security and welfare of the people shall be the primary purpose of government.” What is the objective performance report against this constitutional imperative?
Jurisprudentially, nature abhors a vacuum, hence the invocation of the doctrine of necessity in the global order, albeit by exception.
Harking to Roman law foundations in the maxim salus populi suprema lex esto (“the welfare of the people shall be the supreme law”), the concept was further developed by Henry de Bracton (1210-1268) who postulated: “that which is otherwise not lawful is made lawful by necessity.”
Accordingly, the doctrine of necessity in this particular context, is a constitutional derogation to restore law and order where a lacuna exists in extant statutory provisions, norms and conventions. Historically, the doctrine of necessity has been used in various countries to achieve that objective. In Nigeria, it was employed by the bicameral National Assembly, to effect the installation of the then Vice-President, Goodluck Jonathan, as acting President and Commander in Chief of the Armed Forces on February 9, 2010.
The background was the absence, on medical leave, of then President Umaru Yar’Adua for 78 days in Saudi Arabia, and his inability to formally hand over power to the Vice President, pursuant to the provisions of section 145 of the Constitution:
“Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives, a written declaration that he is proceeding on vacation, or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary, such functions shall be discharged by the Vice-President as acting President.”
So, what’s the extant lacuna in Nigeria? Self-evidently, the inability of the government to consistently, purposively and proactively safeguard lives and property across the country given the state of war with terrorists whether characterised as Boko Haram, ISWAP and the so-called “unknown gunmen.”
In the Cypriot case of Attorney-General of the Republic v Mustafa Ibrahim 1964, CLR, 195, it was established that “the doctrine of necessity is, in reality, the acceptance of necessity as a source of authority for acting in a manner not regulated by law but required, in prevailing circumstances, by the supreme public interest, for the salvation of the State and its people.”
Likewise, in the case Lakanmi & Ors v Attorney General, Western Region (1970) 6 NSCC 143, the Supreme Court of Nigeria took judicial notice of the postulation that the doctrine of necessity was, by exception, part of the country’s constitutional philosophy.
Much earlier in Rex v Bourne, reported in [1938] All E.R.615, a teenage girl was violently raped by five soldiers. The victim’s parents sought and successfully procured an abortion, performed by a gynaecologist. Given the rape victim’s age and the horrific circumstances thereof, the doctor reasonably believed that her death was the inescapable consequence if she proceeded the give birth. Tried under the Offences Against the Person Act (1861), the court found the defendant not guilty because he acted in good faith, motivated by the doctrine of necessity, to save the teenager’s life.
Several pertinent inferences can be drawn from these authorities relative to the war situation in Nigeria. One, the doctrine of necessity can be invoked to declare a state of emergency to meaningfully confront the extremist siege in the country. Two, if invoked, the doctrine of necessity, will be of a strictly temporary duration to tackle an extremely complex existential threat. Three, existing interventions have so far failed to comprehensively repel the terrorist onslaught. Therefore, a new approach is necessary. Naturally, this presupposes the determined political will to address situation.
Against that backdrop, the question of citizens’ right to bear arms necessarily surfaces. Might the victims of St Francis Xavier Catholic Church have survived, if the institution had strategically positioned armed security marshals on its premises with the sole purpose of proactively saving lives? Will masjids be better protected too if they had armed guards (after all, armed guards discreetly operate on certain civilian flights)?
Will innocent citizens, be able to freely attend schools, hospitals, tend to their farms and go about their lives if better protected? And to the extent that there is a clear mismatch between the security cover afforded citizens by the State, is an urgent enlistment drive, the way forward? Yes, to all!
To be clear, there is no country in the world that is absolutely immune from terrorism. However, the key difference relates to how each country, through dynamic counter-terrorism strategies, responds to the nature of the threats and pre-emptively safeguards the lives of its citizens and inhabitants. Australia’s Criminal Code Act 1995, for example, defines a terrorist act as one which:
“causes death or serious harm, or endangers a person, causes serious damage to property, causes a serious risk to the health or safety of the public, or seriously interferes with critical infrastructure; and is done to advance a political, religious or ideological cause; and is done with the intention to coerce or influence by intimidation, the government or public (including a section of the public) of any country or of a part of a country.”
If found guilty of committing a terrorist act, a person potentially faces life imprisonment.
At the end of 2014, a man with extremist inclinations and a criminal record, kidnapped 17 people in Sydney, before he was shot dead by Police.
The UK’s Counter-Terrorism and Sentencing Act 2021, aims to strengthen the country’s approach to sentencing terrorist offenders, through minimum custodial terms of 14 years and extending licence periods from 7 to 25 years; removing the possibility of early release from custody for the most dangerous terrorists. And in response to the July 7, 2005 terrorist act in which suicide bombers detonated bombs on the London Underground, killing 52 people and injuring almost 800, the government introduced the Terrorist Act 2006. The commonality in the Australian and UK responses to the terrorist threats has been robust legislation and police action.
To conclude, it is recommended that the government invokes the doctrine of necessity by adopting a demonstrably tougher approach, through legislation and the enforcement of existing legislation on counter-terrorism; imposing stiffer penalties against terrorists waging war against Nigerian peoples. Likewise, a relaxation of gun laws is strongly advocated along the Canadian, Swiss and US models on 3 counts.
One, the state security apparatus is quite clearly incapable of consistently and proactively protecting the lives of Nigerians. Two, Nigerians have (and should, when confronted and/or threatened by terrorists) exercise the inviolable right to pre-emptive self-defence and the protection of their families in their homes and communities. Three, Nigeria and its people face an existential threat by rampaging terrorists who have waged war against the country.
Some may well argue that the latter proposal is a recipe for anarchy. But is it really? To what extent have relaxed gun laws in Canada, Switzerland and the U.S. led to anarchy?
Put differently, would the average person not stand up to defend his children, family and loved ones in the face unprovoked attacks by rampaging terrorists
(a provision enunciated in the US Constitution’s Second Amendment)?
It is submitted that the presence of alert armed guards, with the presence of mind, at St. Francis Xavier Catholic Church would, in all probability, have either prevented or significantly reduced the mass murder which, paradoxically, took place in a sacred house of prayer. A similar logic applies in other locations, which have experienced terrorist attacks. May the souls of all the victims rest in perfect peace.
Ojumu is Principal Partner at Balliol Myers LP, a firm of legal practitioners in Lagos, Nigeria.
END
Be the first to comment