Femi Falana: The Legal Challenge Of Insurgency

The genesis of Terrorism

It is pertinent to recall that the Generals Ibrahim Babangida and Sani Abacha juntas were associated with terrorist attacks of political opponents through state-sponsored bombing, assassination and arson. The late Chief Gani Fawehinmi (SAN) was almost killed in 1987 for demanding the prosecution of the terrorists who killed a prominent journalist, Dele Giwa, by a parcel bomb. The era equally witnessed the mock trial and execution of military officers who were implicated in phantom coups. Cultist groups were funded on the campuses to deal with radical lecturers and students. Upon the restoration of civil rule in 1999 the official terrorists were neither prosecuted nor disarmed!

The official manipulation of religion, which commenced under the Babangida junta, has continued unabated. Indeed, it is the root cause of terrorism in the country. Whereas it is stipulated in section 10 of the Constitution that the State shall not adopt any official religion the federal, state and local governments have adopted the Islamic and Christian religions. In 1986, Babangida surreptitiously registered Nigeria as a member of the Organisation of Islamic Conference (OIC). As if that was not enough, he built a mosque in the Presidential Villa and appointed an Imam to man it. Similarly, President Olusegun Obasanjo erected a chapel in the villa and appointed a chaplain to manage it.

On January 27, 2000, the Sharia Law was introduced in Zamfara State by Governor Sani Yerima. Not less than 15 other governors in the North followed suit. Although the action constituted a clear violation of section 10 of the Constitution, it was a political move designed to win votes in a Muslim-dominated region. The Obasanjo administration decided not to approach the court to test the constitutional validity of the policy so as not to lose the votes in the North in the 2003 general election. Believing that Nigeria had become an Islamic state, many misguided persons set up private militias to promote the policy of the state governments.
In 2011, the Goodluck Jonathan administration set up a Panel of Inquiry headed by Ambassador Usman Galtimari to investigate the insurgency in the North-east region. In a painstaking investigation, the panel traced the genesis of Boko Haram and other private militias to politicians who set them up in the run-up to the 2003 general election. According to the Committee:

“The militias were allegedly armed and used extensively as political thugs. After the elections and having achieved their primary purpose, the politicians left the militias to their fate since they could no longer continue funding and keeping them employed. With no visible means of sustenance, some of the militias gravitated toward religious extremism, the type by Mohammed Yussuf.”
In line with its terms of reference, the committee recommended that the politicians who “sponsored, funded and used the militia groups that later metamorphosed into Boko Haram” be brought to justice. Although the recommendation was accepted in May 2012 by the federal government, the suspects have been treated like sacred cows as they are said to be highly connected to the powers that be. Recently, a former Borno State Governor, Alhaji Modu Ali Sheriff, was named as one of the sponsors of the Boko Haram sect by a Reverend Stephen Davies, the negotiator recruited by the federal government to dialogue with the terrorists. In his reaction to the disclosure, the ex-governor threatened to sue Davies for defamation in Australia.

Unlike the negotiator whose indictment was not substantiated, I issued a press statement wherein I provided detailed evidence of Sheriff’s links with the dreaded Boko Haram sect. In particular, I stated that the ex-governor appointed Alhaji Buji Foi, a leading Boko Haram member, as the Borno State Commissioner for Religious Affairs to compensate the sect for supporting his re-election in 2003. My press statement was supported by the Maiduguri branch of the Nigerian Bar Association (NBA) which threatened to drag the ex-governor to the Special Prosecutor of the International Criminal Court.
As the federal government was disturbed by the revelations of Davies, the State Security Service (SSS) announced that the ex-governor was under investigation for his alleged links with the Boko Haram sect. But a few days later, the suspect was a member of the delegation of the federal government to Chad when President Jonathan met with his Chadian counterpart, Mr. Idriss Derby, to review the war on terror in the North-east region.

Insurgency and the threat to National Security
Notwithstanding the sacrifice of the ill-equipped members of the armed forces, the Boko Haram sect appears to have gained the upper hand in the war on terror. Large towns like Bama, Gwoza, Mubi and Michika and hundreds of villages have been captured by the terrorists. Hundreds of thousands of people have been displaced while not less than 13,000 have been killed by the criminal gang. Not less than 16 local governments in Borno, Yobe and Adamawa States have been annexed while the combined land mass of the occupied areas is said to be 21,545 square kilometres of territory. The terrorists have hoisted their flags in the occupied territory which has been named the “Caliphate Republic”.
Out of the 276 girls abducted from the Government College in Chibok, Borno State, six months ago, 57 escaped while 219 remain captive. More women and school girls have been kidnapped by the sect. For instance, 60 women were abducted when the sect members invaded Waga Mangoro and Garba villages in Adamawa State last month. (See Punch, October 22, 2014). When Mubi in Adamawa State was attacked, about 350 children were declared missing. (Leadership, November 2, 2014). Bomb attacks launched by the sect have killed hundreds of people in Niger, Bauchi, Gombe, Kano, Kaduna, Nassarawa, Plateau States and the Federal Capital Territory (FCT).

But despite the increasing deadly attacks of the sect, the National Assembly has not deemed it fit to hold a special joint sitting on the threat to the corporate existence of the nation. On its own part, the Council of State which met in Abuja on November 4, 2014 commended President Jonathan’s handling of the war on terror. According to Governor Godswill Akpabio of Akwa Ibom State, “Council was satisfied that the Defence Ministry and all the other agencies have taken the right steps and the president is on course and we are very hopeful that sooner or later Nigerians will hear good news.” (Premium Times November 5, 2014).

The Legal Challenge
The arrogance of the ruling class enshrined in section 2 of the Constitution to the effect that Nigeria is “one indivisible and indissoluble sovereign state” has been exposed to ridicule by the terrorists. However, in exercise of his powers under section 305 of the Constitution, President Jonathan imposed a state of emergency on Adamawa, Borno and Yobe States to restore law and order in the North-east region. The implication of emergency rule is that some of the fundamental rights enshrined in the constitution may be justifiably encroached upon in the interest of defence, public safety and public order.
In Babankura Fugu v. President, Federal Republic of Nigeria (2009 -2010) CHR 1 at 10 the Borno State High Court awarded N100 million damages to the applicant to atone for the extra judicial murder of his father, an alleged terrorist suspect . In the same vein, in Hadiza Bala Usman & Ors. v. Inspector-General of Police (unreported) the FCT High Court declared illegal and unconstitutional the decision of the controversial police officer, AIG Joseph Mbu, to ban the rally staged daily by the #bringbackourgirls campaigners.
Since the neo-colonial state has failed to provide for the “security and welfare of the people” as required by section 14(2) of the constitution, the terrorists have overrun the North-east region. No doubt, the military authorities are embarrassed that soldiers vamoose at the sight of the terrorists. But instead of charging those soldiers with mutiny, the defence chiefs ought to have asked the government to comply with Section 217(2) of the Constitution which stipulates that the federation shall “equip and maintain the armed forces as may be considered adequate and effective” for the defence of Nigeria from external aggression and the maintenance of its territorial integrity.

Towards the defeat of Terrorism
Last month, the federal government announced a ceasefire with the Boko Haram sect and assured the nation that arrangements had been concluded for the release of the Chibok girls. The Boko Haram sect denounced the so-called agreement and has continued to unleash mayhem on innocent people. Since it is crystal clear that the ceasefire was a ruse, the Chief of Defence Staff (CDS), Air Marshal Barde, who announced it should be directed to resign his appointment.
To fight the scourge of insurgency, the Nigerian people should demand a wholesale re-organisation of the armed forces and a probe of the huge funds earmarked for the nation’s defence in the last five years. The National Assembly should ensure that the $1 billion loan recently approved for the purchase of military hardware is judiciously utilised by the federal government. The members of the Joint Task Force should be motivated through training as well as prompt payment of their salaries and allowances. Those who lose their lives in the battlefield should not be buried in unmarked graves.

In view of the patriotic role of the civilian Joint Task Force (JTF) in liberating and securing some towns in the occupied territory, the youths in the North-east region should be mobilised to flush out the terrorists from their communities. While we advocate that the armed forces be adequately funded, we suggest that the federal and state governments should religiously implement the policy on the provision of compulsory and free universal basic education for every Nigerian child. The government should also embark on genuine empowerment programmes and job creation for our army of unemployed youths.
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• Mr. Falana (SAN) is a member of THISDAY Editorial Board… Article culled from the website.

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