…it is erroneous to fault the military declaration of IPOB as terrorist organisation using the TPA as a yardstick since such declaration is a strategic and tactical military decision aimed at enabling the military perform its functions, which are outside the context of the TPA. The declaration is not legally flawed. Rather, it enjoys constitutional endorsement.
Introduction
Many legal pundits have pontificated on the impropriety of the recent declaration by the Nigerian Army that IPOB is a terrorist militant organisation. They have variously concluded that the action is unlawful, unconstitutional and invalid. Their erroneous conclusions are predicated upon spurious premises, as their perception of the validity of that act is exclusively tied to the Terrorism (Prevention) Act (TPA) (as modified). It is this restricted perspective that leads to the misconception that the military cannot lawfully make such declaration. In this discourse, I intend to canvass the argument that the military has the constitutional and legal power to declare any organisation as terrorist. In doing so, I shall place heavy reliance on the extant laws of the land. Let met point out, however, that my focus here is not to determine whether or not IPOB is actually a terrorist organisation, but to argue for the validity of the declaration in relation to the subject matter.
Defining Terrorism
There are difficulties in arriving at a universally accepted definition of terrorism. These difficulties, in Hoffman’s (1998) view, arise from the fact that the term is politically and emotionally charged. The divergence in the definition of terrorism leads to the adoption of a sectoral approach in dealing with international terrorism. In Nigeria, a statutory definition of terrorism is found in Section 1 of the TPA. Under the TPA, “act 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 organisation; (b) is intended or can reasonably be regarded as having been intended to— (i) unduly compel a government or international organisation to perform or abstain from performing any act; (ii) seriously intimidate a population; (iii) seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation; or (iv) otherwise influence such government or international organisation by intimidation or coercion; and (c) involves or causes, as the case may be— (i) an attack upon a person’s life which may cause serious bodily harm or death; (ii) kidnapping of a person; etc.
It suffices to say that a textbook definition of terrorism is that it is the use or threat of violence, especially against civilians, in the pursuit of political aims, religious, or ideological change. Although terrorism has deleterious effects on national security, the duty on the military to fight terrorism is not bestowed by the TPA, since the military is not included in the list of law enforcement agencies in relation to the prevention of terrorism under Section 40 of the TPA. Where then does the Army derive the power to meddle in the fight against terrorism? This leads us to the next and most important segment in this discourse.
The Military and Declaration of Terrorism
The involvement of the military in the fight against terrorism is a global phenomenon, though the war is an asymmetric one. The fight against terrorism is not a matter of cosmetic definition given by an Act of parliament but is a matter of strategies, operations and tactics aimed at ensuring national security, which terrorism threatens. By the combined provisions of Sections 2 and 3 of the Constitution, Nigeria is one indivisible and sovereign state consisting of 36 States and a Federal Capital Territory. Any act threatening this constitutional provision is not only unconstitutional, but also poses serious threat to national security and cohesion. By section 217(1) of the Constitution, the Armed Forces is established for the purpose of (a) defending Nigeria from external aggression, (b) maintaining its territorial integrity and securing its borders from violation on land, sea or air, (c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president subject to conditions prescribed by an Act, (d) performance of such other functions as may be prescribed by an Act of the National Assembly.
… the requirement for the declaration of an organisation as a terrorist organisation by a judge upon an application by the AG or ONSA or IGP is for the purpose of proving the proscription of the organisation as a terrorist organisation to enable them stand trial under the TPA. It is not for the purpose of militarily engaging them in the field.
Section 1 of the Armed Forces Act 2004 establishes the Armed Forces and charges it with the defence of the Federal Republic of Nigeria by land, sea and air. By Section 5(1) of the Constitution, the executive power is vested in the president for the “execution and maintenance of the Constitution.” In maintaining the constitution, the president can validly deploy the military to truncate any threat to national security that has the potential to disrupt the constitutionally guaranteed territory, unity and indissolubility of the country. This is because by Section 218(1) of the Constitution, the powers given to the president as the commander-in-chief of the Armed Forces of the Federation include the “power to determine the operational use of the Armed Forces of the Federation.” The implication of the above statutory provisions is that the Nigerian Army can be validly, legally and constitutionally deployed to combat, contain and/or neutralise a threat to national security, whether or not such threat takes the form of terrorism.
Having said that, the military can be constitutionally and lawfully used in the fight against terrorism; but the question now is, “can the military declare an organisation a terrorist organisation?” The answer is ‘Yes’. In the circumstances at hand, our military, in lawful exercise of the powers conferred on it by the Constitution, carried out an assessment of the threat posed by IPOB and with the aid of information at its disposal came to the irresistible conclusion that IPOB is a terrorist organisation and should be combatted as such for the purpose of safeguarding national security. This declaration which is consistent with the combined provisions of Section 217(1) of the Constitution and Section 1 of the Armed Forced Act, is lawful and well within the bounds of our extant laws. It is wrong to fault the declaration using Section 2 of TPA as a yardstick. This is because the power of the military to fight terrorism is not derived from the TPA but the Constitution and the Armed Forces Act.
The proscription of an organisation under Section 2 of TPA is to criminalise such an organisation and make its members liable to be tried under the provisions of the TPA. That is why under Section 2(4) of TPA, it shall be a defence for a defendant charged under the TPA to prove that the organisation had not been declared a proscribed organisation at the time of the charge. In other words, the requirement for the declaration of an organisation as a terrorist organisation by a judge upon an application by the AG or ONSA or IGP is for the purpose of proving the proscription of the organisation as a terrorist organisation to enable them stand trial under the TPA. It is not for the purpose of militarily engaging them in the field. This submission is further buttressed by the fact that Section 1(2) of the Terrorism (Prevention) (Amendment) Act 2013, which modifies Section 1 of the Principal Act by making the ONSA the body coordinating the security and enforcement agencies and makes the AG the authority “for the effective implementation and administration of the Act to ensure conformity with law and effective prosecution of cases”. Note, the law says “effective prosecution of cases,” and not effective prosecution of the war against terrorism.
However, the point must be made that now that the military, in the course of exercising their constitutional duties, has identified some elements of terrorism in IPOB’s mode of operation, it is left for the ONSA or the AG to make the application under Section 2 of TPA for the judicial proscription of IPOB so as to enhance the prosecution of its members in court under the TPA.
As noted earlier, the military’s decision to declare IPOB a terrorist organisation is not derived from the TPA. It is part of its strategic and tactical decisions in performing its constitutional role of maintaining national security. In other words, the power to make that declaration is derived from both the Constitution and the Armed Forced Act, not the TPA. It is an elementary principle of law as entrenched in Section 1(1) of the Constitution, that the Constitution supersedes any other legislation, inclusive of the TPA. It is illogical to expect the military, which after due assessment of the danger posed by a particular organisation, after observing that a particular organisation has carried out acts identifiable as terrorist acts, after noticing a grave threat to national security, will sit back and wait for an application to be made by the AG or ONSA or IGP to a judge for the organisation to be proscribed in compliance with Section 2 of TPA before moving to combat, containing and/or neutralising such threat. National security is a serious issue and the Section 2 of the TPA relied upon by those faulting the declaration of IPOB as a terrorist organisation will crumble under the prevailing weight of the Constitution. Let me state, at the risk of repetition, that the proscription under Section 2 of TPA is for the purpose of criminalising the organisation. The declaration made by the military is not to criminalise and prosecute them. Rather, it is to combat the threat to national security.
It is therefore an error in law to fault the military declaration of the IPOB as a terrorist organisation especially when IPOB has displayed tendencies and overt acts that bring it within the definition of a terrorist organisation, even when viewed in the light of the definition of terrorism under the TPA. The declaration is both strategic and tactical and no court has the jurisdiction to question a legitimate strategic and tactical military decision designed to ensure national security. According to Carl Clausewitz (1832) in his book On War, military tactics are the science and art of organising the military force, and the techniques for combining and using weapons and military units to engage and defeat an enemy in battle. The army can employ strategies and tactics against an organisation such as IPOB, which purportedly has a security wing and what is referred to as the Biafra National Guard, a military formation subject to command and capable of carrying out operations upon deployment. Since IPOB’s objectives contravened the provisions of the Constitution of the Federal Republic of Nigeria (as amended) regarding territory and indissolubility, our military has the constitutional power to consider them as “enemies” for the purpose of military combat. They can do this by making strategic and tactical moves which might involve the declaration.
Conclusion
Let me conclude by reiterating that it is erroneous to fault the military declaration of IPOB as terrorist organisation using the TPA as a yardstick since such declaration is a strategic and tactical military decision aimed at enabling the military perform its functions, which are outside the context of the TPA. The declaration is not legally flawed. Rather, it enjoys constitutional endorsement. However, the point must be made that now that the military, in the course of exercising their constitutional duties, has identified some elements of terrorism in IPOB’s mode of operation, it is left for the ONSA or the AG to make the application under Section 2 of TPA for the judicial proscription of IPOB so as to enhance the prosecution of its members in court under the TPA. It must be noted that the effect of Section 2 of the TPA is that until the court makes such a declaration, members of IPOB cannot qualify to stand trial under the TPA. But that does not mean that the military cannot legally engage them in the battle field as terrorist where the need arises.
Alexander Asuquo is a Lagos-based legal practitioner.
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