The Nigerian military on Friday 15 September after several recent clashes with the pro-Biafra separatist group, IPOB has declared, the group a “terrorist organization.” The declaration was contained in a statement by the Director of Defense Information, John Enenche. While the immediate reaction of many may be that the army has acted precipitately or even above its station or ultra vires a significant legal incident has occurred. All corporate and natural persons in the country and even citizens abroad must take appropriate notice and modify their actions. The declaration also has effects on other states internationally. The declaration is, therefore, a significant legal incident legally and diplomatically. Nigeria has a vibrant writing culture both in print and electronic forms. The teeming population of E-Tigers populating the internet and social media will benefit from self-censorship from henceforth for a variety of reasons some of which are highlighted below.
Whereas both the constitution and other pertinent legislation have not identified the precise authority that proscribes and designates terrorist groups the following observations may be made about the current situation. The principal legislation to consider here is the Terrorism (Prevention) (Amendment) Act, 2013. And this article will attempt to lay out the key features of the law as it relates particularly to individuals so that readers may take note and modify their behavior accordingly.
Can the Army so Act?
There is nothing in any Nigerian law that shows that the military cannot take the actions it has. It will be wise of the army to have the order restated and reinforced by the Office of the National Security Adviser which is identified by section 1 of the Terrorism law as the coordinating body for all security and enforcement agencies but in the absence of negative reaction from this office, the actions of the military will stand. This conclusion is backed by Section 2 subsection (3) of the law which gives ‘law enforcement agencies’ the following wide and ambulatory powers. They include the power to -
(a) enforce all laws and regulations on counter-terrorism in Nigeria;
(b) adopt measures to prevent and combat acts of terrorism in Nigeria;
(c) facilitate the detection and investigation of acts of terrorism in Nigeria;
Two immediate questions arise: first is the Nigerian army a law enforcement agency? The answer to that is quite clear as the definition of the phrase law enforcement agency in the Terrorism Act itself under Section 40 include ‘the Nigerian Armed Forces and even the Nigeria Prisons Service’. Barring any future court decisions or a complaint from the Office of the National Security Adviser or the President, it is the case that the decision of the Nigerian army stands and the designation is valid.
All official bodies and friendly nations must, therefore, take acknowledgment and give effect to this development. The effects on IPOB will be even more restrictions socially, economically and legally as banks, regulatory institutions, local governments, state governments and even utility companies would have to modify their behavior not only to the group as a whole but to its leaders and rank and file members. Employers, family members and religious bodies related to persons openly identifying themselves with the organization have to refrain from interactions and may well have duties to make official reports.
What should you watch out for?
The designation has particular salience for all writers and commentators not only in Nigeria but around the world. Criminal jurisdiction and indeed antiterrorism cooperation is now increasingly international. The mere fact that someone is or has been investigated for terrorism-related offenses might have severe lifelong implications. Entire swathes of mankind will be closed off by visa restrictions and financial fortunes will inevitably dip as business and banking business will become unbelievably complicated. So what should people watch out for?
First they must avoid flouting Article 2 of the Terrorism Act 2013 which forbids indirect support for a terrorist organization in that: Any person who knowingly, in any manner, directly or indirectly, solicits or renders support - for the commission of an act of terrorism, or Terrorist meetings or soliciting and gives support to terrorist groups for the commission of terrorist acts would have committed an offense and would be liable on conviction to imprisonment for a term of not less than twenty years. For the purposes of that provision "support" includes incitement to commit a terrorist act through the internet, or any electronic means or through the use of printed materials or through the dissemination of terrorist information; Furthermore it is an offense to give receipt or provision of information or moral assistance, including invitation to adhere to a terrorist or terrorist group;
For the offense to stick the law says that ‘it is not necessary to prove that the material or information or facilities (for instance website) assistance’ was actually collected or used. As long as it can be reasonably established that the person collected or provided the material, information or facilities to the terrorist group the offense is complete. In other words, prosecutors would not exactly be looking out for a thank you note bearing IPOB leader, Nnamdi Kanu’s signature on before they can act. The presumed usefulness or the efforts of a hapless writer who knowingly or negligently flouts the law may be enough to establish guilt.
The provision of training and instruction to terrorist groups or terrorists is expressly criminalized by section 7. A careless commentary that for instance, strays into the territory of making suggestions as to where the government will be hard hit by terrorist action or discussion surrounding vulnerable places or persons as targets will be caught by the law. The law states
“Any person who, knowingly, agrees to provide training material or instructions… (a) in the making or use of any form of explosive or other lethal devices, (b) in carrying out a terrorist act, to a member of a terrorist group, (c) to a person engaging in or preparing to engage in the commission of a terrorist act, or (d) in the practice of a military exercise or movements but who is not an authorized officer acting in the performance of an official duty, commits an offense and is liable on conviction, to imprisonment for a term of not less than twenty”
Commentary which (a) incites or promotes the commission of a terrorist act, or (b) incites or promotes membership in a terrorist group, or (c) solicits property for the benefit of a terrorist group or for the commission of a terrorist act, is an offense that is liable on conviction to imprisonment for a term of not less than twenty years.
Membership of a terrorist group or proscribed organization is banned but it may not be necessary for you to have actually filled a stamped and dated application form confirming your membership. Under Section 16 of the law any person who ‘professes’ to be a member of a terrorist group commits an offense and is liable on conviction to imprisonment for a term of not less than twenty years. Therefore to openly refer yourself as a ‘Biafran’ may have the consequence of professing membership of IPOB. However, it is a defense for a person charged with an offense under this section to prove that the entity in respect of which the charge is brought was not a terrorist group at or on the date that he professed to be a member of that entity. Accordingly, careless references to oneself as a ‘Biafran’ before the 15th of September may be unsanctionable but from now on doing so may have severe criminal consequences.
It will be particularly necessary for highly visible persons and opinion leaders such as bloggers and social commentators to exercise a self-enacting code of caution. Section 18 of the law will be very useful to Nigerian prosecutors and investigators in that anyone “who knowingly, directly or indirectly- (a) aids and abets, (b) induces, incites, instigates, instructs, (c) counsels or procures” (the banned group IPOB) would have committed an act of terrorism, liable on conviction - to life imprisonment. Even where the offense of terrorism is not actually committed, there is possible imprisonment for a term of not less than twenty years.
Commentators and writers must also be wary of Section 24 (3) which prohibits careless or deliberate disclosure giving a direct or tactical advantage to IPOB. Indeed Any person who (a) discloses to another anything which is likely to prejudice a terrorist investigation would have committed an offense. Thus, disclosing the movement of troops or planned raids or intelligence operations are obviously caught by the rules. A simple tweet that troops are on the way to the premises of an IPOB operative or are seen to be monitoring such persons could be of assistance to the target or others in the terrorist group. Thus it is possible to inadvertently render help and thus become criminally liable.
Publishers Beware
Publishing houses and even internet hosts both in Nigeria and abroad may have some genuine worries of their own. Under 25.(1) Where an offense committed by any corporate entity is proved to have been committed on the instigation or with the connivance of, or is attributable to any neglect on the part of a director, manager, secretary of the entity or any person purported to act in any such capacity, the officer is liable on conviction to life imprisonment.
Such an entity upon conviction is liable to the forfeiture of any assets, funds or property used or intended to be used in the commission of the offense and the court may issue an order to wind up the entity or withdraw the practice license of the entity and its principal officers or both. Where the court orders the entity to be wound up, its assets and properties shall be transferred to the Federation Account. What will happen to the properties of entities based abroad is at present not clear. While Mark Zuckerberg wound not immediately have sleepless nights over the developments in Nigeria anti-terrorism cooperation between governments is an international obligation and Nigeria does have some considerable influence both with the United Kingdom and the United States.
Beware WhatsApp Groups
The regime of intelligence gathering available to the Nigerian military is just the same as any other institution although it may choose to act in concert with other enforcement or security agencies. Under Section 29 any enforcement agency including the army may with the approval of the Attorney - General of the Federation and the approval of the Coordinator on National Security get backing for intelligence gathering by applying ex-parte to a judge for an interception of communication order. Thus, WhatsApp messages, Facebook accounts, workplace and home computers and entire networks can be monitored.
A judge may authorize the relevant law enforcement agency (which under the act includes the army) to enter any premises and to install in such premises, any device for the interception and retention of a communication or communications of specified description and to remove and retain such a device for the purpose of intelligence gathering; and covert operations in relation to an identified or suspected IPOB or other terrorist group or persons.
Nigerian authorities are empowered to intercept communications abroad by overt and covert means. The law only requires that communications “intercepted and retained in a foreign state must be in accordance with the law of that foreign state and certified by a judge of that foreign state to have been so intercepted and retained” (S. 29 2 (4)). Once this is done the fruits of such intelligence gathered shall be admissible in a proceeding for an offense under the Terrorism Act, as evidence of the truth of its content.
In view of these powerful provisions of the law, Nigerians at home and abroad are obliged to take note of the significance of the change in the status of the designation of IPOB by the military. Dissenters and civil liberty advocates are likely to cry foul and challenge the current position. However, until things are reversed by some superior authority such as the President or the Superior Courts, the issues described above remain apposite. It is important to note that artificial discussions around the legality of the actions of the army may be of little use as the country enters into a period of tense relations between its federating parts. The government has a sacred duty to maintain control within its borders and save Africa’s most populated country from an implosion from which all will suffer. Especially if IPOB does not go away quietly and it is unlikely to, there will be periods of political tension. In such a case any government will have to engage full frontally with such insurgent and prohibited forces. It will make sense for the average person not to stray into the fray. Cicero -one of the wisest Roman philosophers soberly concluded inter arma enim silent leges -“Amid the clash of arms let the laws be silent”.
The limits of the law will be tested on many sides. As Nigerians love to say “a word is enough for the wise”.