Between Law and Necessity

0
By Onikepo Braithwaite Email: onikepo.braithwaite@thisdaylive.com Twitter: @TheAdvocatesTD

Happy International Women’s Day to all of us women! In just the first quarter of 2021, we had Senator Kamala Harris sworn in as not just the first female, but the first African American and Asian American Vice President of the United States of America, and our own Dr Ngozi Okonjo-Iweala, as the first female and first African Director General of the World Trade Organisation. Women continue to make great strides in all endeavours, and take centre stage in the affairs of world, a testimony to the fact that we successfully multi-task as home makers, mothers, and professionals. Congratulations to us all.

Kidnapping

In my editorial of 16/2/21, I mentioned an abductee who I interviewed recently – the one who was kidnapped in the Southern part of Nigeria in broad day light, a few metres away from a military checkpoint. What I omitted from his account, so as not to be accused of making inflammatory statements against any ethnic group or disseminating fake news, was that he stated that after paying the ransom to the kidnappers and they were leaving the forest, a vehicle went past them towards the direction they were coming from – the kidnappers den. He claimed that the vehicle was a military truck! His conclusion was that the occupants of the military vehicle were rushing to collect their own share of the ransom from the kidnappers, and that was why his kidnapping could occur in the vicinity of a military checkpoint during the day – that the military men were an integral part of the illegal operation – looking the other way while the kidnappings took place, in exchange for a share of the booty!

Kidnapping has become the more the merrier in Nigeria, since it originated in the Niger Delta years ago, when militants kidnapped oil workers and those who they perceived to be juicy targets for ransom payments. I was however, shocked, when I heard that it has now become a popular trade, even with those who are meant to protect us from this evil – law enforcement agents, as they now also seem to be partaking in it with gusto and aplomb. It is a descent into anarchy and lawlessness, when law enforcement become the criminals. Who then, will protect the people?

The various statements of several Governors, give us a clearer picture of what is going on. Governor El- Rufai’s statement on the role of the Fulani Herdsmen in kidnapping; the tweet of the Governor of Zamfara State stating that 5 Emirs, 33 District Heads, 4 Policemen and 10 Military Officers were being investigated, as the authorities believe that they are involved in the atrocities happening in the State; coupled with the statements of the Governors of Bauchi and Benue States, there is ample evidence to draw the conclusion that the Fulani Herdsmen or pretenders (whether Nigerian or foreign) are very much part of the kidnapping game; ditto for law enforcement agents and members of society who were once believed to be responsible people – the ones who should be assisting Government to fish out these criminals from their communities, like the Emirs, District Heads, and an Eze in Imo State who was recently paraded by the Police as the ring leader of a kidnapping gang.

Truly, Nigeria is in a quandary. What shall we do to get out of this mess? As it is, we have all the elements that are required to make kidnapping thrive in our country – poverty, unemployment, illiteracy, religious bigotry, corruption, greed, and ungentlemanly politics.

Doctrine of Estoppel

All the aforementioned negative elements were very much in existence, even before President Buhari assumed office in 2015; and not only were most Nigerians aware of this, President Buhari and the ruling APC were also aware of it too, so much so that President Buhari made the fight against insecurity, corruption and revamping the economy the bedrock of his campaign/campaign promises.

My first submission is that the doctrine of estoppel applies here. That is, the Buhari Administration is estopped from constantly using the state of affairs before they came into office, as an excuse for their failure to secure Nigerians today. While the PDP who held sway in Nigeria for 16 years before President Buhari took office can never be absolved of blame for the poverty and insecurity that has engulfed this nation, and the resultant effect of promoting criminality as a better source of livelihood for many miscreants, President Buhari and the APC were not only aware of the situation before they decided to run for office, they promised to ‘change’ it, and Nigerians reasonably relied upon those promises of change, and played their part by voting President Buhari into office. The Buhari Administration is prevented, or cannot go back on their promises. See Section 151 of the Evidence Act 2011 and the case of Otto v Mabamije 2004 17 N.W.L.R. Part 903 Page 489 at 504 per Amaizu JCA.

This principle of estoppel was enunciated by Rhodes-Vivour JCA (as he then was) in Diamond Bank Ltd v Ugochukwu 2008 1 N.W.L.R. Part 1067 Page 1 at 26 where his Lordship stated inter alia that:

“It simply means that a person shall not be allowed to say one thing at one time, and the opposite at another time. Estoppel binds both parties and privies, and the rule of estoppel is based on equity and good conscience…..it would promote fraud and litigation, if a party is allowed to resile from his own act or representation on which the other part acted…..”. Earlier, the case of Odadhe v Okejani 1973 11 S.C. 343 at Page 353 had cited the words of Coussay, J.A. in Basil v Honger 14 W. A. G. Page 569 at 572 that :” It (estoppel ) shuts the mouth of a party”. I submit that estoppel shuts the mouth of this administration, and we must hold them to their promises to secure our land. Nigerians voted them into office based upon this promise, and they cannot resile from it, having secured the vote of the people.

Laches and Acquiescence

Has Government been guilty of Laches in this security matter? That is, sitting on/delaying in performing its constitutional obligation and primary purpose which is to provide security for Nigerians (Section 14(2)(b) of the Constitution), thereby ceding its right to local champions like Sunday Adeyemo aka Sunday Igboho to do its job? See the case of Agbara v Amara 1995 7 N.W.L.R. Part 410 Page 712 at 730 per Edozie JCA – “Laches means that a person takes no steps for a long time to enforce his right, when the knowledge of it is brought to his notice. To sustain a plea of laches, the length of delay and the nature of acts done during the interval are relevant”. In this situation, will Sunday Igboho to be able make a successful plea of laches on the part of the Government, as his defence? That Government’s failure to secure the lives of the people, necessitated his taking action, having delayed for almost six years without making any tangible effort at curbing insecurity?

President Buhari’s ‘Shoot on Sight’ Order

Last week, President Buhari ordered that anyone found in possession of an AK 47 rifle in the forest, should be shot on sight. And while many people have welcomed this development as one that shows that the Government has finally decided to deal decisively with these criminals after dragging their feet for so long, others say that it may be ‘medicine after death’, as things have practically spiralled out of control. My ‘Besto’ responded to this latter assertion by saying that, the best time to do something is when it should have been done, the next best time, is the day it is done! – Meaning – it is never too late. However, some members of the society – civil society organisations like SERAP, have denounced President Buhari’s ‘shoot on sight’ order, as being one which may result in abuse, and therefore, demand that the President rescind the order.

But, is the President wrong? Would any law abiding person be in the forest armed with an AK 47, especially as possession of such a weapon is unlawful? Would those who may be there to hunt, use AK 47s? My dear colleagues, what do you think? Can the President’s shoot to kill order be justified, since it is aimed at public enemies?

Section 27(1)(a)(i) of the Firearms Act (FA) provides for a punishment of not less than 10 years imprisonment for the unlawful possession of firearms, Section 35(1) of the FA permits the President by proclamation, to prohibit the possession of firearms, either absolutely or subject to restrictions, while Section 35(1) provides a punishment of a fine of N1,000 or two years imprisonment or both, for those who fail to surrender their weapons to lawful authority during the pendency of the proclamation. Though Section 1(2) of the Robbery and Firearms (Special Provisions) Act (RFA) provides the death sentence for the offence of armed robbery, again Section 3 of the RFA only provides for a fine of N20,000 or imprisonment of not less than 10 years or both, upon conviction for the unlawful possession of firearms. Additionally, the new laws enacted for kidnapping prescribe the death sentence, only in the case of the death of an abductee.

As officers in the temple of justice and sticklers for the rule of law, should we advocate for the culprits to be apprehended, and let the law takes it course, particularly as the law does not provide the death penalty for the unlawful possession of firearms, or should criminals just be shot on sight, considering the kind of unprecedented insecurity and fear that Nigerians are currently facing? Does Section 33(1) of the Constitution which guarantees the right to life of every person, except in the execution of a death sentence passed down by a court of competent jurisdiction, avail these criminals the opportunity to have their day in court? Or does Section 33(2) of the Constitution which provides for instances in which the breaching of Section 33(1) may be lawful, support President Buhari’s ‘shoot on sight’ order? Does the proviso in Section 45(2) of the Constitution also support the President’s order, that is, a derogation from Section 33(1) of the Constitution in a time of war? It is obvious that presently, we are in a war against insecurity – against insurgents, kidnappers and other criminals, whether such a war has been formally so-declared or not.

Conclusion

I am of two minds. As a Nigerian who is concerned about the level of insecurity that Nigeria has sunk to; as a woman who considers rape to be one of the most heinous crimes against women; as a mother who feels the pain of other mothers when their children are missing, and as one who wants our agricultural sector to be developed to achieve its greatest potentials, I welcome and applaud the President’s shoot on sight order. But, as a worker in the temple of justice and upholder of the rule of law, going by the aforementioned provisions of the law, plus Section 36(5) of the Constitution which provides that a person is presumed innocent until proven guilty, the President’s order may be impeachable. Again, many ask what regular, law abiding citizens would be doing with AK 47 in the forest, if not evil? And that, the mere possession of such a dangerous weapon, is enough evidence of guilt of unholy activities. Or was the President’s order unnecessary? After all, the fact that the Armed Forces have also been deployed to combat the insurgency and insecurity means that killing is inevitable, as members of the Armed Forces are certainly not going for a tea party – they are trained to kill.

Suggestions

For there to be security in Nigeria, open grazing must also be banned nationwide, and it behooves on Miyetti Allah and people with ideas about modern cattle rearing methods like Governor Ganduje, to help create workable ranching alternatives for the Herdsmen as a matter of urgency. The average Fulani Herdsman, at least the ones we grew up knowing, never carried firearms, and aside from open grazing being a crude thing of the past that belongs to the dark ages, there is also a school of thought that many of the criminals operating in the forests, acquire a few cattle and use them as an alibi, masking themselves as Herdsmen in order to survey different localities before they attack them. Once open grazing is banned nationwide, no one will have an excuse to be in the forests or anywhere else, as cattle will be grazed in the various ranches. I do not subscribe to anyone demanding land free of charge for ranching, as beef is not given to us free of charge in the markets – we buy. Cattle rearing and the sale of beef, is a commercial venture. But, the kind of support given to farmers to enhance their business, should be given to Herders as well, like loans to buy land for ranching etc.

As I had suggested in one of my editorials last year, and Governor Zulum of Borno State has also echoed, it is time that Government also secures the assistance and expertise of foreign military contractors, to join hands to quell the insurgency and insecurity.