Opinions of legal experts were sharply divided on Thursday on the
order of the Federal High Court , Abuja proscribing secessionist
group , the Indigenous People of Biafra , which also classified the
agitators as a terrorist organisation .
The Attorney General of the Federation and Minister of Justice , Mr .
Abubakar Malami ( SAN ) , had , on Wednesday , on behalf of the
Federal Government , obtained an interim order proscribing IPOB and
declaring the secessionist group as a terrorist organisation .
The order was granted by the acting Chief Judge of the Federal High
Court , Justice Abdu Kafarati , in chambers.
The judge held , “ That an order , declaring that the activities of the
respondent ( Indigenous People of Biafra ) in any part of Nigeria ,
especially in the South - East and South - South regions of Nigeria ,
amount to acts of terrorism and illegality , is granted . ”
The immediate past Lagos State Solicitor - General, Mr . Lawal Pedro
( SAN ); a human rights advocacy group, Access to Justice ; activist
lawyer , Mr . Ebun - Olu Adegboruwa , and IPOB faulted the order of
Justice Kafarati , saying it had no legal precedent .
But two professors of Law , who are also Senior Advocates of
Nigeria , Yemi Akinseye - George and Fidelis Oditah; other SANs –
Yusuf Ali and Tayo Oyetibo – and the Special Assistant to the
President on Prosecution , Mr . Okoi Obono- Obla , argued that the
order of the court was valid and backed by law and fact .
IPOB is not a juristic person , can ’ t be sued – Pedro , Olu - Adegboruwa
In a statement on Thursday , Pedro wondered whether IPOB was a
juristic person that could be sued.
He also observed that though the order proscribing IPOB was
granted pursuant to an ex parte application , the pronouncement of
the court sounded rather declaratory and final .
Pedro , who described the issue of IPOB agitation as important,
advised the AGF to assemble a competent team to handle the case
in order not to jeopardise it .
Pedro stated , “ I observe that many things are wrong with the order
and can easily be challenged , so as to set it aside .
“ In the first place , is IPOB a juristic person to be sued and for the
court to exercise jurisdiction upon ?
“ Secondly , this looks like a final order or judgment granted on a
motion ex parte . This cannot be right in law . A different procedure
should have been used to achieve the desired result .
“ Thirdly , the order or judgment is in breach of the fundamental right
of the named respondent ( assuming it is a juristic person ) to fair
hearing . It is , therefore , unconstitutional null and void .
“ Lastly, the main relief is a declaratory order or judgment which
should not be granted vide a motion either on notice or ex parte .
“ It is my advice that the AGF should review its strategy on the
subject and may consider a proper and better legal team to advise
and handle this important and sensitive case . ”
Pedro , however , said that the order , having been made by a
competent court of law , had legal weight and remained binding until
it was set aside .
Also , a human rights advocacy group , Access to Justice , in a
statement by its Deputy Director , Dr. Adenike Aiyedun, shared
Pedro ’ s views , arguing that the order was against the principle of
fair hearing .
On its part , A 2 J also raised concern as to whether the constitutional
principle of fair hearing was respected in the handling of the case .
The group said , “ The court ’ s ruling is hard to rationalise and it will
send many scratching their heads as well as fan the flames of an
already volatile political situation .
“ It is disturbing because the ruling – which is a determinative, and
conclusive statement on the legality of the Indigenous People of
Biafra , as far as this court goes – was arrived at ex parte , when the
other side – IPOB – was not given an opportunity at all to be heard
or to oppose the application . It is at odds with basic tenets of
justice and fairness .
“ The ruling of the Federal High Court does not stand up to
respectable scrutiny and we fear that it would further damage public
trust in the Nigerian judiciary. ”
In a similar vein, activist lawyer , Mr . Ebun - Olu Adegboruwa ,
described the Federal Government ’ s application and the order made
by the court as an abuse of court process .
Adegboruwa argued that the court order had no foundation in law
because IPOB , not being a registered organisation , was not juristic
and could not be sued.
He added , “ Legally speaking , the suit filed, the order granted and
indeed all the proceedings in this case , constitute a gross abuse of
the process of the court as the court has no jurisdiction to entertain ,
let alone adjudicate upon the case .
“ The suit was not initiated following due process of law , as stated by
the Supreme Court in the locus classicus case of Madukolu v
Nkemdilim ( 1962 ) 2 SCNLR 341. The suit filed and the orders
granted have no foundation upon which they can stand and be
maintained or enforced .
“ The supposed defendant in the case is the Indigenous People of
Biafra , which is not a registered entity in law . And even if it is
registered , it can only be sued in the name of its incorporated
trustees or indeed its accredited representatives . Furthermore,
unlike other associations like the Nigerian Bar Association, IPOB is
not recognised or mentioned or legitimised in any existing statute .
“ For a suit to be competent , there must be proper parties before the
court . In this case , the supposed defendant , IPOB , is a no - juristic
person against which no action can be maintained in any court of
law . ”
Profs , Ali, Oyetibo, Buhari ’ s aide disagree
But a professor of Law , Yemi Akinseye - George ( SAN ) , while
admitting that an unregistered organisation was not juristic and
could not be sued, recalled that a precedent had been set by the
court in the case of Boko Haram , which was not registered , yet
proscribed .
Akinseye - George stated , “ You cannot sue an unregistered
organisation . I ’ ve not seen the ruling but if the organisation is not
registered , but Nnamdi Kanu was joined as one of the defendants,
the application is valid .
“ Again , we can take precedent from the Boko Haram case ; a similar
order was obtained against Boko Haram to declare it a terrorist
organisation and the order took effect ; so, there is precedent .
“ In the first place , terrorist organisations cannot be registered by
law , so, you cannot say because they are not registered , they cannot
be proscribed . ”
Another professor of Law , Fidelis Oditah ( SAN ) , affirmed that though
he did not know the status of IPOB , only a juristic organisation could
be sued.
He explained that if IPOB was not a juristic person , the Federal
Government would still have been able to proscribe it without going
to court but by the President , obtaining power from the legislature to
declare the group illegal .
Oditah added , “ I don’ t know about the status of IPOB , whether it is a
juristic or non- juristic person . Assuming it is a non- juristic person ,
then , there is no person capable of being the subject of legal rights
or obligations. That is the way that a lawyer will look at it . But that
is not a complete answer because there are many amorphous
organisations that can be clamped down upon notwithstanding that
they have no legal existence .
“ The reason that this issue has arisen is because the Attorney
General went to court to obtain an order and one assumes that an
order can only be directed at a legal person. But if it had been the
legislature giving the President power to proscribe by a declaration ,
it might be possible for the government to proscribe an organisation
such as IPOB even if it ’ s not a legal person . ”
Aligning with the opinions of the dons , a SAN , Mallam Yusuf Ali ,
argued that IPOB could be proscribed in Nigeria even when the body
was not registered in Nigeria .
He said a group existing “ as a fact ” , with its activities affecting the
lives of other persons, could be proscribed even when such body
was not registered .
He said , “ IPOB is not registered but it is mobilising Nigerians
against other Nigerians .
“ Should we just fold our arms ? Shouldn ’ t the doctrine of necessity
come to the aid of the law to proscribe it ?”
Ali recalled that although the Ibrahim Zakzaky - led Islamic Movement
of Nigeria ( also known as Shi ’ ites ) was not a registered body in
Nigeria , the group was proscribed by the Kaduna State Government
after its members clashed with the Army in December 2015 .
He said , “ In law , it is not all the time that a non- registered body
cannot be subjected to a legal action. The question is does the body
have the ability to affect the lives of other people ?
“ There has been an old case in which the issue was determined . The
court said in the case that although the body was not registered, its
activities were affecting the lives of other people .
“ It is a notorious fact that IPOB is not a body that could have been
registered because it was a body set up to operate outside the law .
“ So, IPOB exists as a fact even if you are closing your eyes to it
because the law says it doesn ’ t exist . ”
Another senior advocate , Mr . Tayo Oyetibo , stated that the
proscription of IPOB was legal because of its activities , despite the
fact that the group was not registered under the law .
Oyetibo said , “ The assertion that the group is not registered cannot
be a correct reason for attacking the proscription . This is because if
a body, even in the guise of a masquerade, goes out to infringe on
peoples’ rights, you can drag the masquerader in the form it is and
deal with it .
“ Can you allege some facts against a person, and on the basis of
those allegations , come to a conclusion without hearing the parties
concerned as to whether those factors are correct? It is not the
registration but the activities that make an organisation seen to be
carrying out illegal activities . You can hide under non- registration
and carry out nefarious activities ; that does not stop the law from
dealing with you . ”
But the Special Assistant to the President on Prosecutions , Mr . Okoi
Obono - Obla , on Thursday , defended the order made by the Federal
High Court in Abuja proscribing IPOB .
Obono - Obla said in a statement that IPOB was an unlawful society
within the contemplation of Section 62 ( 2 ) of the Criminal Code ,
adding that the proscription order did not infringe on the members ’
right to freedom of association .
According to the presidential aide , the Federal Government ’ s
application requesting the proscription order was filed under the
Terrorism ( Prevention ) Act , and not based on the principles
applicable to civil proceedings .
The presidential aide stated , “ 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 is a criminal legislation!
“ It is well settled that the rules of procedure that regulate 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 also said in another statement that IPOB remained
constitutionally proscribed as the Terrorism ( Prevention ) Act 2013 ,
under which the court order was issued , did not make registration of
a group in Nigeria a precondition for proscribing such body.
“ The purpose of this treatise is to correct the impression that the
order is unconstitutional .
“ The Terrorism ( Prevention ) Act does 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 .
“ It follows that the proscription order granted by Justice Kafarati is
lawful, constitutional and proper . ”
Northern Elders Forum backs proscription
Also , the Northern Elders Forum expressed support for the decision
of the Federal Government to proscribe IPOB .
According to the group , the decision was taken in the best interest
of Nigeria’ s corporate existence .
Convener /Leader of the forum, Chief Paul Unongo , said this while
addressing journalists on the state of the nation , in Abuja on
Thursday .
Unongo reiterated that northern elders were of the opinion that
responsible governance and the rule of law were the fundamental
prerequisites for the realisation of peaceful and prosperous societies
as well as the protection of human rights and dignity.
The former Minister of Steel Development during the Second
Republic noted that members of the forum were disturbed about
recent developments in the polity which had titled towards the
subversion of the Nigerian state .
While condemning the recent unprovoked attacks against
northerners in some states in the South - East and South - South of
Nigeria , the NEF commended the maturity of northern leadership ,
represented by the Northern Governors’ Forum , among others .
Unongo added , “ The NEF commends the readiness and willingness
of the Federal Government of Nigeria to take all necessary measures
that are permitted under the law and by the constitution of the land
to check all these existential threats to Nigeria.
“ The NEF also welcomes the presence of Nigeria’ s military and other
security personnel in all of the country where peace and security are
severely threatened .
“ The President , Commander - in - Chief has the prerogative of
deploying the Armed Forces for the purpose of keeping the peace.
This prerogative should be respected by all well - meaning Nigerians.
“ The NEF welcomes and commends the decision taken by the
South - East Governors to denounce the activities of the organisation
known as Indigenous People of Biafra and its proscription in their
respective states . ”
He added that the North would remain vigilant on the security and
welfare of northerners in the South - East , South - South and other
parts of Nigeria.
“ It will not sit idly and watch the nation sink into chaos under new
and additional threats. It is in this regard that we strongly support
the Federal Government official proclamation, proscribing IPOB and
its activities throughout the territory of the Federal Republic of
Nigeria , ” he added .
Perhaps in a veiled reference to the ongoing agitation for the
restructuring of the Nigerian federation , Unongo said the North
recognized and acknowledged that there were demanding and
legitimate questions on the current operations of the Nigerian state .
“ The North will demand a respectful and responsible approach to its
participation in the search for answers to the many questions
confronting our country , ” he stated .
We ’ ll come back stronger, says IPOB
But IPOB , on Thursday , condemned its proscription by the Federal
High Court in Abuja on Wednesday .
In a statement by the group ’ s Media and Publicity Secretary , Emma
Powerful , IPOB stated that President Muhammadu Buhari had
betrayed what it described as his secret agenda of exterminating the
people of the South - East by what it called his skewed and despotic
decisions against IPOB .
It urged the Biafra people not to lose any sleep by the proscription
order , saying the group would come back stronger than ever .
The group said , “ IPOB is recognised and operating lawfully in over
100 countries and territories around the world . Our conduct in each
of these countries has remained impeccable and exemplary.
“ We urge Biafrans to be resolute because we are almost at the gate
of freedom which the Nigerian government cannot stop . ”
It said by granting the order proscribing and labelling IPOB a terrorist
group , Justice Kafarati had placed his judicial reputation on the line
by openly siding with evil .
It wondered how an organisation that was pronounced a lawful
organisation in March by a Federal High Court , presided over by
Justice Binta Nyako , would, in less than six months , be declared a
terrorist organisation .
It vowed to challenge the proscription order, saying it could not
stand in law and in fact .
Justice Nyako had , in her ruling, stated that the allegation in Count 3
in the case of the FG vs . IPOB , relating to “ managing of unlawful
society punishable under Section 63 of the Criminal Code Act ” could
not be substantiated by the proof of evidence .
She held that the prosecution failed to show that IPOB was indeed
an unlawful organisation as its proof of evidence was unable to
exhibit any evidence that the organisation had been proscribed or
that it was not registered either in Nigeria or in the United Kingdom .
IPOB added , “ Unarmed , peaceful IPOB should never and cannot be
labelled a terrorist organisation when Fulani herdsmen from Buhari ’ s
tribe , with their Hausa - Fulani soldiers in the Nigerian Army , are the
ones killing IPOB family members .
“ We are not terrorists and can never be because our struggle for
Biafra self - determination is our undeniable right under the United
Nations and African Charter which Nigeria is a signatory to. ”
Every group like IPOB ’ ll be proscribed – Presidency
The Presidency, on Thursday , said every other group that operated
like the secessionist group , Indigenous People of Biafra , would also
be proscribed and tag a terrorist organisation .
The Senior Special Assistant to the President on Media and Publicity,
Garba Shehu , said this during a live television programme titled ,
‘ Sunrise Daily’ on Channels Television .
Shehu said IPOB operated like Boko Haram by declaring an
independent state and hoisting a foreign flag on Nigerian soil.
He also accused the secessionist group of printing Biafran currency ;
issuing Biafran passports and extorting money from people under
the guise of compulsory tax collection .
When asked what the Federal Government would do if a similar
group emerged following the proscription of IPOB , Shehu said , “ If
another group comes up and produces passports and produces
currency and sets up an intelligence agency and a para - military
organisation of sorts , the law will apply to them as it did to IPOB . ”
The President ’ s spokesman said groups like the Movement for the
Actualisation of the Sovereign State of Biafra , would not need to be
proscribed because they were not as violent and unruly as IPOB .
He said the Arewa youths , who issued a notice to quit to Igbo , were
not given the IPOB treatment because they had withdrawn their
threat and had succumbed to the voice of reason .
Shehu , however , said the same could not be said of IPOB .
The President ’ s aide also rubbished arguments that the Federal
Government was treating the herdsmen crisis with kid gloves.
He said , “ There is a criminal activity and terrorist activity . Yes, the
Fulani herdsmen are a criminal gang and they are being dealt with in
accordance with the law but IPOB , like Boko Haram , has carved out
a territory as a sovereign state and they have raised concerns in
Kogi and Benue and have boasted that they will take over Bayelsa
and Rivers.
“ That was exactly what Boko Haram did and the taxation system
and hoisting of flags . This is not acceptable . ”
When asked why the government was able to quickly identify the
source of IPOB ’ s funding but had failed to trace that of Boko Haram ,
Shehu said IPOB ’ s case was easier because they usually canvassed
funds openly .
He said , “ Funding is canvassed for IPOB openly in some Western
countries and traders of Nigerian origin in these countries send
money back home. Why is the government not able to identify the
source of funding for Boko Haram ?
“ It is perhaps more complicating than we are seeing and if you look
at the President ’ s message at the United Nations , he asked for the
funding of Boko Haram be traced and blocked. ”
We ’ ve no knowledge of IPOB activities , says France
Meanwhile , the Republic of France has expressed surprise over
allegations by the Federal Government that IPOB has its financial
headquarters in France .
It denied knowledge of IPOB ’ s activities and presence , saying it was
ready to examine any information that could support the Federal
Government ’ s claims .
The Minister of Information and Culture , Alhaji Lai Mohammed, had
alleged that IPOB was being funded by some sympathisers in
France and other foreign countries.
He also accused the United Kingdom of allowing Radio Biafra to
“ operate in the country ” under the guise of freedom of speech .
“ We have the records . We know IPOB collects money from many
people in diaspora . They collect money from many people in Nigeria ;
they collect money from some foreign countries, this is clear . Let me
tell you , the financial headquarters is in France , ” he stated on
Wednesday .
But the Embassy of France spokesperson , Claude Abily , in her
reaction on Thursday , noted that the Federal Government never
raised the issue with the French government before going public
with it .
Abily said , “ The Embassy of France was surprised by the statement
made yesterday ( Wednesday ) by the Minister of Information and
Culture , indicating that the “ financial headquarters ” of IPOB were in
France .
“ We don’ t have any knowledge of a particular presence of IPOB in
France and the Nigerian authorities never got in touch with the
Embassy on this point .
“ We stand ready to examine any information which could support
this statement . ”
“ Furthermore, we would like to reiterate that France actively
cooperates with Nigeria in the field of security and that we strongly
support the unity of the country . ”
The United Kingdom , in the same vein , said it was not aware of any
representation by the FG on Radio Biafra .
The Press Officer, UK High Commission in Nigeria , Joe Abuku , said
the British government would consider request to shut down Radio
Biafra on the basis of available evidence .
“ Were we to receive any such request , we would, of course , consider
it carefully on the basis of the available evidence , recognising that
freedom of speech and expression carries responsibilities , ” Abuku
added .
0 comments: