IPOB Proscription: Senior Lawyers Otah, Ikongbeh, Obla, Bwala, Edun Analyze Constitutionality

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Senior lawyers have expressed divergent views on the legality of the recent proscription of secessionist group, Indigenous People Of Biafra (IPOB) by the Federal High Court In Abuja.

The lawyers who spoke to The Metro Lawyer (TML) in separate interviews failed to agree on the constitutionality of declaring IPOB illegal and a terrorist group.

Austin Otah who is Principal at Esquires Legal in Abuja is of the view that if IPOB is not registered under law in Nigeria, then it is just a gathering of individuals and not a body.

“It means that to sue the group would be an exercise in futility because it is amorphous in nature and worse – unknown to law”.

He also questioned the efficacy of the proscription. “Has there been fair hearing? We come under a democracy. Is this democratic? I’m hoping the legal team used did their homework right. Are the parties sued the right parties? In essence is the Order enforceable?

Otah wondered if similar action has been taken against Boko Haram, at least. According to him, it doesn’t help erode the feeling of bias. “Is this not an infraction of the constitutionally guaranteed right of persons to meet in groups of their choice? Why pick on IPOB? I appreciate that the ACJA governs some of these matters but the provisions therein raise high burdens of proof to discharge before an order would be granted…I hope this case is not an attempt to make an ass of the law. I’m not sure this was well thought through”, he said.

Another senior lawyer, Kunle Edun of Tri-Lex Partners in Warri, Delta state said that the order of the Federal High Court proscribing IPOB is ex facie (on the face of it) illegal and unconstitutional. “A man’s hair cannot be shaved in his absence. He must be heard first pursuant to the provisions of section 36 of the Constitution. A final judicial order cannot be made in an ex parte proceedings”, he said.

Furthermore, he said, there is no evidence before the Federal High Court to indicate that IPOB is a registered organization under Nigerian law.

“It is my opinion that the Federal Government may have unwittingly clothed IPOB with some legal recognition by suing it, because the law is trite that only persons known to law can sue or be sued” he concluded.

Marx Ikongbeh of Everlaw Associates in Abuja believes that in view of the provisions of the Terrorism Prevention Act of 2011, IPOB, though a non-juristic person, can be proscribed. “The laws of the realm applies to all entities and persons whether juristic or not” he said.

He stressed that section 2 of the Terrorism Prevention Act 2011 which provides that any association of 2 or more people or any organization that engages in or supports terrorist acts can be proscribed, does not import any requirement for the said organization to be a juristic person.

Furthermore, S.15 of the 2013 amendment to the Act empowers the Attorney General of the Federation to approach the Judge-in-Chambers (ie ex parte proceedings) to proscribe an organization.

Reacting to whether IPOB can be named a respondent in a judicial proceedings, not being a juristic person, he responded that the general position is that non-juristic persons cannot sue or be sued but that the law allows some exceptions to the rule; that non-juristic persons in certain cases, can sue and be sued including statutory bodies that are not imbued with juristic personalities, but have far reaching powers that may affect citizens, for example a Local Government Service Board.

Ikongbeh believes that the judicial logic that produced this particular exception could be stretched to confer the right to sue IPOB. “Based on the extraordinary circumstances surrounding terrorism and the express mention of organizations engaged in or supporting terrorism and the far reaching impact of their activities on citizens, they should be conferred juristic personality for purpose of proceedings been brought against them” he said.

Ikongbeh also said, the matter could have been commenced “in the matter of the statute” where there would have been no need for a named defendant on record. “This is akin to certain non-contentious company proceedings or non-contentious probate matters, for example, action by executors seeking directions.” he said.

He explained that the order of proscription is an order in rem, so it is not tied only to a named defendant but is valid against the whole world. “The Terrorism Act doesn’t even talk about serving the order on IPOB; this must be a recognition of the fact that terrorist organizations are normally not tame pets that can be approached. It simply provides that the order be published in the gazette”.

“The real intentions of the legislature, I perceive, in passing this enactment is not to create a binding judgment enforceable against the named group, but to authorize the publication of a declaration in the gazette warning all law abiding citizens to steer clear of the named organization. It is also to enable other consequences of the law to flow against offenders tried under the Act”.

Ikongbeh disagreed with another senior lawyer’s position that IPOB cannot be banned since it is not a legal entity. “I respectfully beg to differ from Olu-Adegboruwa’s position. This is not regular judicial proceedings where the aim is to get a judgment that is enforceable against a named defendant. The law recognizes species of judgment that are unenforceable such as a declaratory judgment that is merely a “solemn affirmation of a state or status by a court”. So with respect, the argument that the judgment is not enforceable is a misapprehension of the substance of the declaration proscribing IPOB”.

He concluded by questioning the desirability of the proscription. “Do we want to have two overt terrorist groups in our country? (Boko Haram and IPOB) as well as the globally acknowledged terrorist herdsmen? What is the impact on foreign investments? Could there be another non combustible approach to this? Was IPOB becoming a full blown terrorist organization? Perhaps the army had Intel showing that IPOB was going the way of Boko Haram to justify nipping IPOB in the bud early enough, but is this the best approach to stop the growth of terror?” he asked.

Mr Daniel Bwala, an Abuja based lawyer/Notary Public and member of Lincoln’s Inn, London has another approach to analyzing the issue. He believes that the President’s approval is not sufficient for proscription of an organization until there is an application before the court upon affidavit probably attached with evidence to suggest that the acts of the group or individuals constitute terrorism as provided by the act. When that application is granted the group is deemed as a terrorist organization.

Also, going by the Terrorism Prevention Act, a lot of other groups will be classified as terrorist organisations because the act makes it clear that any act of a person or group of persons that tends to unduly compel the government to act or refrain from acting; that harass or intimidate a population; that destabilizes the economic, political, and social structure of the country, that commits acts of kidnapping etc, constitutes terrorism.

Bwala who is also a member of the Chartered Institute of Arbitrators in the United Kingdom said, “Therefore lots of acts of individuals and groups are going to be classified under that Act and a lot of people will be tried on that account.”

Senior Special Assistant on Prosecutions to President Buhari, Chief Okoi Obono-Obla, in consonance with some of the postulations by Marx Ikongbeh, explained the constitutionality of the proscription to The Metro Lawyer.

“The Terrorism (Prevention) Act did 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,” he said.

“By virtue of the provisions of Section 2 (1) (a) (b) & (c) of the Terrorism (Prevention) Act (supra), the argument that the so-called Indigenous People of Biafra (IPOB) cannot be proscribed because it is not registered in the Federal Republic of Nigeria is not tenable.”

Also, Obla argued that the position held by some that the proscription of IPOB is tantamount to an infringement of the right of freedom of association as enshrined by Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), cannot hold in this instance.

Quoting section Section 45 (1) (a) & (b) of the constitution, he said “Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom or other persons”

According to Obla, it follows that it is perfectly in order for the Federal Government of Nigeria in view of the terrorism unleashed by IPOB on those who do not subscribe to its separatist and violent ideology which threatens the fundamental rights of Nigerians and threatens national security, corporate and territorial integrity of the country, to proscribe it in view of the provisions of Section 45 (1) (a) & (b) of the Constitution.

He concluded by saying that IPOB is undoubtedly an unlawful society within the contemplation of Section 62 (2) of the Criminal Code. Also, the President is vested with power by Section 62A of the Criminal Code.

“It follows that the proscription order granted by Justice Kafarati is lawful, constitutional and proper” he said.

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