Can Dr Isa Pantami be Prosecuted for Acts of Terrorism? (Part 1)

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Isa-Ibrahim-Pantami

Introduction

Dr. Isa Ali Pantami, is the Minister of Communications and Digital Economy. He is also known as Sheikh Pantami. He was born on the 20th day of October, 1972, in Pantami Ward, Gombe State, Nigeria.

Many Nigerians (including my humble self) have since called for Pantami’s resignation or his removal as a Minister by President Muhammadu Buhari, based on some of his incendiary religious statements made sometime between 2000 and 2006, as an Islamic scholar. In the highly inflammatory speeches, he had expressed allegiance to and support for (including sympathy with) the Taliban, Al-Qaeda and Boko Haram terrorist groups. These are three of the world’s deadliest terrorist groups. Dr Pantami, on the other hand, has since acknowledged that he made those statements. In his words, pleading adolescence and transfiguration:

“Some of the comments I made some years ago that are generating controversies now were based on my understanding of religious issues at the time, and I have changed several positions taken in the past based on new evidence and maturity”.

Do Pantami’s statements constitute terrorist acts?

Meaning of Terrorism

Terrorism is commonly understood to refer to acts of violence that target civilians in the pursuit of political or ideological aims. The crucial aspect of the offence of terrorism is the creation of intense fear and anxiety, both physical and psychological, in the minds of members of the public, which have the effect of coercing, forcing or intimidating them to do, or abstain from doing, any act, or to adopt or abandon a particular view, policy or position to act according to certain principles (Abdulmumini v FRN (2017) LPELR-43726 (SC) 29).

In the case of KARUMI v FRN (2016) LPELR-40473(CA), the Court of Appeal, Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 25 – 25 Paras A – D) noted that:

“… The gravity of the offence of terrorism which involves the use of violence or force to achieve something, be it political or religious, is a grave affront to the peace of society with attendant unsalutary psychological effect on innocent and peaceful members of the society who may be forced to live in perpetual fear. It is an offence that may even threaten the stability of the State.”

Section 46 of the Economic and Financial Crimes Commission Act, 2004 (EFCC Act), is much wider in scope in the definition of terrorism, far beyond its narrow definition in Abdulmumini’s case (supra). There, the term “Terrorism” is defined to mean:

a) “any act which is a violation of the Criminal Code or the Penal Code and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public property, natural resources, environmental or cultural heritage and is calculated or intended to

(i) intimidate, put in fear, force, coerce, or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act or to adopt or abandon a particular standpoint, or to act according to certain principles, or

(ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency, or

(iii) create general insurrection in a state;

b) any promotion, sponsorship of, contribution to, command, aid incitement, encouragement, attempt threat, conspiracy, organisation or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i), (ii) and (iii).”

In 2011, the Terrorism (Prevention) Act No.10, 2011, came into force to deal with offences relating to conducts carried out, or purposes connected with terrorism. The Act was subsequently amended in 2013 by the Terrorsim (Prevention Amendment) Act 2013. By virtue of Section 4(1) (b) of the Amendment Act, a person who knowingly, in any manner, solicits or renders support for a proscribed organisation or an internationally suspected terrorist group, an offence under this Act and shall on conviction be liable to imprisonment for a maximum term of 20 years. Though, Buhari has unsurprisingly refused to formally proscribe Boko Haram, the terrorist group has, with its sisters, Al-Qaeda and Taliban, been proscribed internationally.

Under subsection 3 of the Section 4, the term “support” is defined to include:

1. Incitement to commit a terrorist act;

2. Offer of material assistance, weapons, including biological, chemical or nuclear weapons, explosives, training, transportation, false documentation or identification;

3. Offer or provision of moral assistance, including invitation to adhere to a proscribed organisation; and

4. The provision of, or making available, such financial or other related services as may be prescribed in this act.

It is under these two Acts, that Pantami’s inflammatory speeches may be analysed and viewed.

The Extant Legal Position

Dr. Pantami, as stated above, is not denying making those statements. It is not in doubt, that he made those dangerous statements when he was already an adult (about 33 years and 11 months old). He was not a minor. So, his mind was not impressionable. His lame defence that he has since renounced those views, does not rule out the fact that he had committed a crime by supporting or sympathising with terrorist organisations. However, under what law should he be tried?

There are two Acts mentioned above. The first is the EFCC Act, 2004. The second is the Terrorism Act, 2013 (as amended). Section 46 of the EFCC Act made reference to the Penal Code and the Criminal Code. These Acts shall now be considered.

Terrorism Act

The statements made by Dr. Pantami, pledging allegiance to Al-Qaeda, Taliban and Boko Haram, were made sometime in 2000-2006, while the Terrorism Act came into force on 3rd June, 2011. It is enshrined in Section 36(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), that:

“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”

In the case of OGBOMOR v STATE (1985) LPELR-2286(SC), the Supreme Court, Per ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C., had cause to interpret Section 4 of the Criminal Code Act, Sections 33(8) and (12) of the 1979 Constitution, which are similar to Sections 36(8) and (9) of the 1999 Constitution. He noted at pages 14 – 17 that:

“… Section 4 of the Criminal Code Act which is similar and identical in effect, provides – “No person shall be liable to be tried or punished in any Court in Nigeria for an offence except under the express provisions of the code, or some other Act, or some Law, (or of some Order in Council made by her Majesty for Nigeria) or under the express provisions of some statute of the Imperial Parliament which is in force, in, or forms part of the law of Nigeria; Provided that in the case of an offence committed before the commencement of this Act, the offender may be tried and punished either under the law in force when the offence was committed or under the code, provided that the offender shall not be punished to any greater extent than was authorised by the former law. “Section 11 also provides that -“A person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred”… These two provisions relate to the immunity from trial and conviction of a person with respect to an act or omission which at the time of its commission or omission did not constitute any offence under the law. – See Aoko v Fagbemi (1961) 1 All N.L.R.15 400. It does not cover the trial and conviction of any person for any criminal offence which is defined, and the penalty thereof is prescribed in a written law. It cannot seriously be contested that, on the facts, the acts alleged to have been committed by the Appellant did not constitute an offence at the time of their commission. Section 33(12) of the Constitution 1979 provides for such cases. For the sake of completeness, I reproduce S.33(12) which is as follows- “Subject as otherwise provided in this Constitution a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore, is prescribed in a written law; and in this sub-section, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.” A combined reading of the provisions of S. 33(8) and S. 33(12) of the Constitution 1979 suggest that whereas, no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence, which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated. Thus, it is clear that a mere misdescription of the law under which a charge has been brought, does not necessarily render the offence charged one not known to the law at the time of its commission. Hence, as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid, and is merely defective if there is any misdescription of the law under which the charge was laid”.

Dr. Pantami cannot therefore, be prosecuted under the Terrorism Act, because his alleged terrorist acts occurred prior to the enactment of the Terrorism Act. The Terrorism Act does not have a retroactive or retrospective Act. (To be continued).

THOUGHT FOR THE WEEK

“Anyone who supports terrorism, anyone who sees terrorism as a legitimate means, anyone who uses terrorism to cause the death of innocent people is a terrorist in my eyes”. (Milos Zeman)