The nation’s insecurity challenges took a turn for the worse recently, when the Governor of Benue State, Samuel Ortom was attacked in broad daylight by armed bandits on the way from his farm. The Governor of Borno State, Professor Babagana Zulum, also suffered the same fate last year. If these criminals had succeeded in their dastardly attempt to eliminate a sitting Governor, the consequences of their actions would most likely have worsened the already tense situation in the country. The questions on the lips of many are, how safe are the other State Governors whose States have been under attack from insurgents? How long will the authorities allow the marauders to reign free with their evil acts? What methods, including legislation, can Government adopt to help ease the insecurity that Nigeria is currently experiencing? Chief Sebastine Hon, SAN does an in-depth analysis of the worrisome issues in these frightening developments, drawing attention to strategies which have been implemented, and laws that have been enacted in other countries, like USA, the Philippines and UK
Legal Memorandum for Combatting Terrorism in Nigeria
Nigeria is presently engulfed in severe security challenges, due to the longstanding terrorism war waged by the Boko Haram, the ISWAP, the ISIS and lately, armed herders and bandits.
In the midst of all these, the central government’s will and capacity to arrest the situation and assert itself have been suspect. Government has, for instance, openly demurred and dithered, to the consternation of many, in dealing with foreign elements freely entering into Nigeria, killing, maiming, raping, pillaging and taking over lands from natives.
The height of this, is the recent attempted assassination of outspoken Governor of Benue State, Samuel Ortom, by a group called the Fulani Nationality Movement. The real danger is not just that attempt; but the fact of this group threatening the murder of any other Governor or Nigerian citizen, who opposes or is seen to be opposing the RUGA policy of rehabilitating and resettling the herders. Till the time of writing this article, no department of the Federal Government has either condemned this or made any arrests!
Faced with government’s seeming inaction, the natives of Nigeria have either taken up arms to defend themselves and their compatriots, or are threatening to secede from the country. Indeed, apart from the Nigerian civil war of 1967-1970, the corporate existence of Nigeria has never before been threatened than this.
Worthy of mention is the fact that the so called North-West alliance that produced President Muhammadu Buhari, is shaken to its foundation – with many elected public officers from the South-West openly condemning the demurrer of the Federal Government on this vexed issue of insecurity. Even Mr. President’s traditional support base, the Northwest, also hard hit by kidnapping, banditry and a rising insurrection, has risen up, so to say, against the Presidency.
This piece, although reluctantly written – in view of the central Government’s seeming and longstanding apathy at taking decisive steps to stem the spiralling insecurity in the country – seeks to counsel the central Government on the Legislative, Executive and Judicial steps to be taken, to arrest the situation. I shall do so by examining our extant laws on the subject, critically comparing them with similar or other laws elsewhere, and then making suggestions on the way forward.
Legislature and Executive’s Duty to Strengthen Counter-Terrorism Laws
The National Assembly first enacted the Terrorism (Prevention) Act of 2011; but quickly, in 2013, amended it, by enacting the Terrorism (Prevention) (Amendment) Act No. 25 of 2013. So far, this is the central legislation in Nigeria on terrorism; but we shall now examine its provisions vis-à-vis similar legislation abroad, to test its efficacy, especially on major areas that are very important in the fight against this scourge. We shall also, in this piece, critically examine the role of the Federal Government in preventing and tackling or combating terrorism and organised banditry in Nigeria.
Need for Comprehensive Legislation on Intelligence Gathering
The Nigerian Terrorism (Prevention)(Amendment Act) 2013, has, in Section 1A, simply made the office of the National Security Adviser, ONSA, “the coordinating body for all security and enforcement agencies under this Act.”
Compare this with the provisions of the US Intelligence Reform and Terrorism Prevention Act of 2004, which have, quite commendably, not only established the office of the Director of National Intelligence (DNI) under Section 102(a) of the Act, but have also established the following collaborative offices or departments: (a) the National Counterterrorism Centre – established by Section 1021 of the Act; (b) the National Counter Proliferation Centre – established by Section 1022 of the Act; National Intelligence Centres – established by Section 119B of the Act; and (d) the Joint Intelligence Community Council – established by Section 101A of that Act. This Council is made up of the DNI, who chairs it, the Secretary of State, the Secretary of Treasury, the Secretary of Defence, the Attorney General, the Secretary of Energy, the Secretary of Homeland Security and “such other officers of the United States Government as the President may designate from time to time.” The chief function of this Council, is to “assist the Director of National Intelligence in developing and implementing a joint, unified national intelligence effort to protect national security.”
Similarly, Section 53 of the Philippine Human Security Act 2007, has created the Anti-Terrorism Council, made up of an Executive Secretary as Chairman, the Secretary of Justice, the Secretary of Foreign Affairs, the Secretary of National Defence, the Secretary of Interior and Local Government; the Secretary of Finance and the National Security Advisor. This Council is charged with the responsibility of undertaking “the proper and effective implementation of the anti-terrorism policy of the country;” and its secretariat is to be known as the National Intelligence Coordinating Agency. Finally, by the provisions of the said Section 53 of this Act, the National Bureau of Investigation, the Bureau of Immigration, Armed Forces of the Philippines, the Anti-Money Laundering Council, the Philippine Centre on Transnational Crime and the Philippine National Police Intelligence and Investigative Elements “shall serve as support agencies for the Council.”
I am of the view, therefore, that the Office of the National Security Adviser (ONSA) is too limited both in resources and other parameters, to singularly coordinate all that has to do with anti-terrorism in Nigeria. The US model whereby all of the Secretary of State, the Secretary of Treasury, the Secretary of Defence, the Attorney-General, the Secretary of Energy, the Secretary of Homeland Security, together with the Director of National Intelligence, come together under one umbrella body known as the Joint Intelligence Community Council, should be adopted in Nigeria. As shown above, the Philippines also has a similar arrangement.
Secondly, even if neither of the National Counterterrorism Centre nor the National Counter-Proliferation Centre is to be established in Nigeria, there should be established some National Intelligence Centres in at least the six geopolitical zones of Nigeria, if not in all the States of the Federation. This will greatly enhance intelligence gathering and sharing, twin tools for the fight against organised crime.
Section 7 of the Philippine Human Security Act of 2007 allows wiretapping, interception and or surveillance of terrorist communications by a police officer or law enforcement official and members of his team, upon “a written order of the Court of Appeals”. There is, however, a proviso, which prohibits surveillance, interception or recording of communications between Lawyers and Clients, Doctors and Patients, Journalists and their sources, and confidential business correspondence.
Comparatively, Section 29(1) of the Terrorism (Prevention)(Amendment) Act of 2013 provides as follows:
29.–(1) Without prejudice to any other law, the relevant law enforcement agency with the approval of the Attorney-General of the Federation may, with the approval of the Coordinator on National Security for the purpose of prevention of terrorist acts or to enhance the detection of offences related to the preparation of a terrorist act or the prosecution of offenders under this Act, apply ex-parte to a Judge for an interception of communication order.
Section 29(2) has authorised the Judge before whom such ex parte application is made to:
(a) require a communication service provider to intercept and retain a specified communication or communications of a specified description received or transmitted or about to be received or transmitted by that communications service provider;
(b) authorise the relevant law enforcement agency to enter any premises and to install in such premises any device for the interception and retention of a communication or communications of specified description and to remove and retain such a device for the purpose of intelligence gathering; and
(c) authorise the relevant law enforcement agency to execute covert operations in relation to an identified or suspected terrorist group or persons for the purpose of gathering intelligence.
Also, while Section 29(3) of the Nigerian Act requires such ex parte order to “specify the maximum period for which a communications service provider may be required to retain communications data,” subsection (4) of the section allows admissibility of such intercepted evidence, if generated from a foreign country.
Bureaucratic red tape and ego or personality issues between the Attorney General of the Federation and the National Security Adviser may hamper the quick realisation of the objects of Section 29 of the Terrorism (Prevention) (Amendment) Act, 2013. The National Government of Niger signed a similar law in June, 2020; but its major difference is that, under its Article 2, any of the following high officials of that Government – President, the Prime Minister, the Minister of Defence, the Minister of Interior, the Minister of Justice or the Minister of Customs and Trade – have authority to order interception of communication. Thus, instead of permitting only the Attorney-General of the Federation, subject to the final authorisation of the NSA, to order interception, Article 2 of the Nigerien law should be adopted – since terrorism in and against Nigeria has almost blown out of control.
It must be noted, too, that bulk interception of electronic signals in Sweden for foreign surveillance purposes, as a counter-terrorism measure, was upheld as being valid under the European Convention on Human Rights, by the European Court of Human Rights. See Centrum for Rattvisa v Sweden, Application No. 35252, decided on 19th June, 2018.