The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
Repentant’ Boko Haram Insurgents
A news story caught my attention, last week. It was one about the Borno State Government forgiving 160,000 purportedly ‘Repentant’ Boko Haram Insurgents. The reason provided for forgiving them, was that they had sworn on the Holy Quran (oath- taking) that they would never return to the forest to join the Boko Haram insurgents who have brought nothing but rivers of blood, uncountable tears, sorrow and pain to many communities in the North East and beyond, kidnapping, killing and maiming innocent people for almost two decades now.
I wondered what era we are living in, where oath-taking without a proper judicial process is acceptable, particularly as Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) gives only the courts powers to adjudicate on all matters except those excluded by the same Constitution, while Section 10 thereof prohibits the Federal or State Government from adopting any State religion, meaning that amongst other things, questions arise as to how then the Quran or Bible can be used as an official exculpatory tool, not even for misdemeanours, but for heinous crimes.
Terrorism: A Federal Offence
This act of forgiveness which is certainly ‘ultra vires’ the Borno State Government, that is, beyond its legal authority, raises several issues.
Firstly, the actions of Boko Haram, including treason and the other crimes committed by them, fit like a glove into the various definitions of acts of terrorism stated in Section 1 of the Terrorism (Prevention) Act 2011 (TPA), from acts done with malice afterthought that may seriously harm or damage a country – Section 1(2)(a); to acts that seriously intimidate a population – Section 1 (2)(b)(i); attacks on people’s lives that cause serious bodily harm or death – Section 1(2)(c)(i) to kidnapping – Section 1 (2)(c)(ii); destruction of public facilities – Section 1 (2)(c)(iii) and causing explosions – Section 1 (2)(c)(vi), to mention but a few of the atrocities they have committed on a regular basis over the years. These offences are Federal Offences, offences against the Nigerian State and Section 32 of the TPA gives the Federal High Court the sole jurisdiction to try the offences specified in the TPA, while Section 33 provides for various punishments of up to life imprisonment and heavy fines of N150 million, upon conviction for these terrible offences.
The Borno State Government has no jurisdiction in these matters, let alone having the power to grant absolution to suspected insurgents. One wonders whether Government, State or Federal, don’t seek sound legal advice before they take some actions. Even though I do not agree with forgiving vicious criminals, I recall that, in 2009, it was President Umaru Yar’Adua who granted amnesty to Militants to quell their insurgency and destruction of oil installations. It was not the Rivers, Bayelsa, or Delta State Government that forgave them. Even if the insurgents are to be tried in court in Borno State, the venue of the proceedings would be the Federal High Court, Borno State Division, not the Borno State High Court.
Oaths & Perjury
The second issue concerns the oath-taking. While there are various types of oaths, for example, oath of allegiance, oath of office, as far as I know, one of the main reasons for oath-taking in law, is for witnesses who are giving evidence in court to declare that they will tell the truth, when giving evidence. But, the reason why we have the offence of ‘Perjury’ is that many witnesses lie under oath. In Akpatason v Adjoto & Ors (2019) LPELR- 48119(SC) per Paul Adamu Galinje, JSC, the Supreme Court held inter alia thus: “The implication or legal effect of an oath is to subject the person who took an oath to penalties for perjury, in the event that the testimony turns out to be false”. Also see the case of Omoregie v DPP (1962) LPELR-40916(Sc) per Adetokunbo Adegboyega Ademola, JSC (later CJN).
The process of suspects who may be guilty of atrocities swearing on a Holy Book that they are remorseful and repentant, and are freed on the basis of this oath taking, is a process unknown to law, and I dare say, an unreliable procedure. There are also no consequences, should they decide to go back on their word and return to the forest to continue with their atrocities. The truth is that this bizarre procedure seems to be more of an encouragement than a deterrent for the commission of these horrible crimes, as the perpetrators are able to get off more or less scot free, without being held accountable for their crimes.
Section 117 of the Criminal Code Act (CCA) and Section 156 of the Penal Code Act (PCA) both provide for Perjury as an offence; Section 117 of the CCA makes Perjury punishable with 14 years imprisonment upon conviction, while Section 158 of the PCA punishes false evidence with up to 14 years imprisonment upon conviction. The punishment for Perjury goes up to life imprisonment and the death sentence, when it involves giving false evidence in cases of capital offences that result in the conviction of an innocent person, or the execution of an innocent person. This criminalisation of Perjury is prima facie evidence that people who take oaths on Holy Books, do not always tell the truth. I must therefore, disagree with the Borno State Government, that because suspects have sworn on the Holy Quran that they will never go back to terrorism, it means that they will keep their word. For example, in April 2021, less than three months after renouncing banditry via oath-taking, Zamfara Bandit leader, Auwal Daudawa who was one of the masterminds behind the 2020 abduction of the Kankara Schoolboys, returned to the forest to pick up arms. Luckily, he was subsequently, killed.
Again, does the law recognise informal oath-taking without an established legal procedure like court proceedings when it comes to criminal matters, especially matters relating to heinous crimes? I think not.
I’m sure that if we take a poll of remorsefulness and repentance of those who are presently remanded in all the correctional facilities in Nigeria, at least 99% will confirm their repentance. Why don’t we just ask the Controller of Prisons to free all the Prisoners? Some have been there for years, for flimsy reasons like inability to pay their small fines; others, for the offence of Wandering, which is no longer an offence known to law. Yet, they are not freed. Are the crimes of Insurgents and Terrorists different from those who are on death row for murder, or have bagged life imprisonment for kidnapping like Mr Evans? Are Terrorists/Bandits now more privileged offenders than those who are imprisoned for committing the same offences, seeing as they are being given privileges that other criminals do not enjoy. See Section 42(1)(b) of the Constitution on discrimination.
Lack of Accountability
How can we promote accountability as a means of repairing our broken country, when in Nigeria, not only is Government not accountable for its actions, only ‘unfortunate scapegoats’ are held liable for their sins? Public Officials, Politicians and Terrorists now get away with their misdeeds. What message is Government sending? That the same laws are applied to different groups of people, differently? Many of the murder cases I have personally witnessed in court, have resulted from events like people fighting and someone getting killed during the altercation, armed robbery, that kind of thing. If these suspects are brought to court to face the music, why should vicious killers who kidnap and kill innocent children like Nabeeha Al Kadriyar and Folashade Ariyo be freed, because they claim to be remorseful, repentant and swear an oath? I don’t quite follow the rationale behind this.
In 2022, two Governors who were convicted on corruption charges were pardoned by President Buhari, and released from prison just a few years into serving their sentences. What most people learnt from this, is that public officials are free to loot Nigeria’s treasury to their heart’s content, they will get off lightly or will not face any punishment at all! Senator Orji Kalu’s corruption case was never refiled at the Federal High Court and started de novo, after it was dismissed because the trial Judge who heard the case didn’t have the jurisdiction to continue with it after he had been elevated to the Court of Appeal. Instead, Senator Kalu was able to attempt to put himself up to run for Senate President!
The other day I saw a forward on social media from one of the so-called Public Commentators/Bandit Negotiators saying that as long as Government doesn’t provide hospitals, schools and other social amenities, Bandits will continue to strike. I wondered whether Bandits are the only ones suffering from lack of amenities in Nigeria, and whether anyone should be spouting that kind of nonsense as some form of defence for the incessant killing of innocent children and people.
A People that has become Numb
And, what do Nigerians even do with the amenities, when they are actually provided by Government? Clips are looted from the railway tracks on a daily basis, by people who couldn’t care less if the trains derail as a result of the missing clips and others die in the ensuing mishaps, as long as they make money. Railings are stolen from the bridges, while manhole covers are stolen from the roads to sell as scrap metal. We have become a rather numb and insensitive people, so why should we expect better from public officials who are also part of this dysfunctional society?
“We the people, recognise that we have responsibilities as well as rights; that our destinies are bound together; that a freedom which only asks what’s in it for me, a freedom without a commitment to others, a freedom without love or charity or duty or patriotism, is unworthy of our founding ideals and those who died in their defence.” – Barrack Obama, 44th U.S. President
We do not see ourselves as a people whose destinies are bound together, nor are we in the least bit patriotic or country proud. Instead, we have a “To your tent, O Israel!” mentality. We have no love for others, nor are we committed to them. When petrol stations hear that there may be a change in the price of fuel, they immediately shut down 9 out of their 10 selling points, create an artificial shortage, make the people suffer and slow everything down, just so that they can make abnormal profit by selling old stock at new higher prices. What is the true value of the Naira? Who knows? The activities of our foreign exchange speculators who are happy for the Naira to continue depreciating so they can make phenomenal gains, must be taken into consideration in the calculation. Nigerians, even University students who should know better, like those who murdered Deborah Samuel Yakubu, engage in mob/jungle justice, and they suffer no consequences for their actions even when they are caught. In 2016, when Bridget Agbahime was killed at Kofar Wambai Market, Kano, by a mob that falsely accused her of blasphemy, her killers were identified; what happened? Despite the overwhelming evidence against the culprits, the then Attorney-General of Kano entered a Nolle Prosequi, that is, ‘no wish to prosecute’ and the suspects were freed.
Conclusion
The reason why the Chinese practice corruption in other people’s countries like Nigeria, is that they know they can get away with it here, while in their country, they may be killed by the State for the same offence. The fact that they have result-oriented detection and investigative processes, making accountability an irresistible conclusion, serves as a deterrent.
On the other hand, the reason why they produce fake luxury and other substandard items in China (making them tops worldwide in this illicit market), in addition to the genuine quality goods they make for high end companies, is because their Government allows it, since they know that the world loves luxury items at cheaper prices, and their country rakes in billions of Dollars of revenue from this illicit trade.
My point? People take their cue, from their Government’s stance on issues. If Government is partial in handling criminals, those that it is partial to have no reason to stop. If Government places no premium on accountability, anarchy is the result.
