By: Mr. Solomon Ukhuegbe
I should add a disclaimer from the outset that I do not necessarily support the government decision to approach the Federal High Court for the order. I believe the move is premature and unnecessary at this time.
However, I have no doubt that the order issued is fully compliant with applicable law. The suggestion that the process is legally incompetent because IPOB is supposedly a body unknown to law is, with respect, misconceived.
1. The applicable law is Section 2(1)(c) of the Terrorism (Prevention) Act 2011, which lays down the SPECIAL procedure for obtaining a judicial order proscribing “any entity” for terrorism. This law is the lex specialis.
There is no room in the section 2 process to seek a prohibition order against individuals. Nor is it required that the process be taken against representatives of IPOB, unlike in regular civil procedure. Lex specialis derogat lex generalis. An application under section is sui generis and cannot be equated with ordinary civil actions.
2. There is nothing novel about the order obtained yesterday. There is precedent for it. Boko Haram and Ansaru were proscribed vide Suit No.FHC/ABJ/CS/368/2013 on 24/05/2013, granted Kafarati J of Federal High Court No.2 Abuja and published in
Federal Republic of Nigeria Official Gazette No. 34, Volume 100
No one asked then, and rightly so, about the registration of the two organizations under Nigerian law! The legal status of the prohibited organization is immaterial in the section 2 process. Otherwise the whole purpose of the law would be defeated.
3. Section 2 provides only for an application to a judge in chambers with the consent of the President. The judge gives his ruling based on the information exhibited with the application. This supposes an ex parte application. It was unnecessary for the Attorney General to title the process “Attorney General (Applicant) v. IPOB (respondent).” The title could have been “Application under Section 2(1)(c) of the Terrorism (Prevention) Act 2011. In re: Indigenous People of Biafra (IPOB).” Section 2 does not envisage a “respondent” to the application.
4. The order merely proscribed an organization and it operates PROSPECTIVELY after gazetting and publication in two newspapers. That is when member of IPOB becomes a criminal offence.
Also, it does not, and cannot, affect the holding of any political beliefs (self-determination, Biafra etc) by any person. See section 2(3)(ii).
5.The ease, as we have seen, with which a prohibition order may be obtained under the Act shows how dangerous the legislation is. When it was passed in the face of terrorism unleashed by Boko Haram, little thought was given to the possibility that powers under the Act may be equally applied to non obvious cases. Therefore, I expect that a prohibition order under section 2 is reviewable by a higher court. Secondly, the constitutional guarantee of fair hearing justifies, in spite of the terms of section 2, a judge to whom an application for a prohibition order is made should in appropriate circumstances be able to order that the affected party be given notice and an opportunity to respond.
The constitutionality of the section 2 process is therefore suspect and perhaps should be tested, if an appropriate plaintiff can be found. But once the order is gazetted and published in two newspapers, by section (2)(3), any “person who belongs or profess to belong to a proscribed organization” is liable to 20 years imprisonment.
6. Finally, even if it was the case that the order granted by the court was defective by reason of process or jurisdiction or any other reason whatsoever, it is a subsisting order of a competent court and is valid until set aside by a higher court. And it does not appear that the court that granted the order can vacate it. Section 2(5) gives the Attorney General the power to revoke the order, with the consent of the president, if he is satisfied that the proscribed organization has ceased to engage in acts of terrorism. It is curious though why this provision requires the affected organization to file an application ON NOTICE for this purpose when it is not a court process. Or is it? Put whom on notice? The Attorney General? But it the Attorney General, not a judge, that will make the necessary determination. The process seems ministerial rather judicial. The drafting is convoluted.