IPOB proscription: Profs, SANs, others disagree on court order
Opinions of legal experts were sharply divided on Thursday on the order of the Federal High Court, Abuja proscribing secessionist group, the Indigenous People of Biafra, which also classified the agitators as a terrorist organisation.
The Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), had, on Wednesday, on behalf of the Federal Government, obtained an interim order proscribing IPOB and declaring the secessionist group as a terrorist organisation.
The order was granted by the acting Chief Judge of the Federal High Court, Justice Abdu Kafarati, in chambers.
The judge held, “That an order, declaring that the activities of the respondent (Indigenous People of Biafra) in any part of Nigeria, especially in the South-East and South-South regions of Nigeria, amount to acts of terrorism and illegality, is granted.”
The immediate past Lagos State Solicitor-General, Mr. Lawal Pedro (SAN); a human rights advocacy group, Access to Justice; activist lawyer, Mr. Ebun-Olu Adegboruwa, and IPOB faulted the order of Justice Kafarati, saying it had no legal precedent.
But two professors of Law, who are also Senior Advocates of Nigeria, Yemi Akinseye-George and Fidelis Oditah; other SANs – Yusuf Ali and Tayo Oyetibo – and the Special Assistant to the President on Prosecution, Mr. Okoi Obono-Obla, argued that the order of the court was valid and backed by law and fact.
IPOB is not a juristic person, can’t be sued –Pedro, Olu-Adegboruwa
In a statement on Thursday, Pedro wondered whether IPOB was a juristic person that could be sued.
He also observed that though the order proscribing IPOB was granted pursuant to an ex parte application, the pronouncement of the court sounded rather declaratory and final.
Pedro, who described the issue of IPOB agitation as important, advised the AGF to assemble a competent team to handle the case in order not to jeopardise it.
Pedro stated, “I observe that many things are wrong with the order and can easily be challenged, so as to set it aside.
“In the first place, is IPOB a juristic person to be sued and for the court to exercise jurisdiction upon?
“Secondly, this looks like a final order or judgment granted on a motion ex parte. This cannot be right in law. A different procedure should have been used to achieve the desired result.
“Thirdly, the order or judgment is in breach of the fundamental right of the named respondent (assuming it is a juristic person) to fair hearing. It is, therefore, unconstitutional null and void.
“Lastly, the main relief is a declaratory order or judgment which should not be granted vide a motion either on notice or ex parte.
“It is my advice that the AGF should review its strategy on the subject and may consider a proper and better legal team to advise and handle this important and sensitive case.”
Pedro, however, said that the order, having been made by a competent court of law, had legal weight and remained binding until it was set aside.
Also, a human rights advocacy group, Access to Justice, in a statement by its Deputy Director, Dr. Adenike Aiyedun, shared Pedro’s views, arguing that the order was against the principle of fair hearing.
On its part, A2J also raised concern as to whether the constitutional principle of fair hearing was respected in the handling of the case.
The group said, “The court’s ruling is hard to rationalise and it will send many scratching their heads as well as fan the flames of an already volatile political situation.
“It is disturbing because the ruling – which is a determinative, and conclusive statement on the legality of the Indigenous People of Biafra, as far as this court goes – was arrived at ex parte, when the other side – IPOB – was not given an opportunity at all to be heard or to oppose the application. It is at odds with basic tenets of justice and fairness.
“The ruling of the Federal High Court does not stand up to respectable scrutiny and we fear that it would further damage public trust in the Nigerian judiciary.”
In a similar vein, activist lawyer, Mr. Ebun-Olu Adegboruwa, described the Federal Government’s application and the order made by the court as an abuse of court process.
Adegboruwa argued that the court order had no foundation in law because IPOB, not being a registered organisation, was not juristic and could not be sued.
He added, “Legally speaking, the suit filed, the order granted and indeed all the proceedings in this case, constitute a gross abuse of the process of the court as the court has no jurisdiction to entertain, let alone adjudicate upon the case.
“The suit was not initiated following due process of law, as stated by the Supreme Court in the locus classicus case of Madukolu v Nkemdilim (1962) 2 SCNLR 341. The suit filed and the orders granted have no foundation upon which they can stand and be maintained or enforced.
“The supposed defendant in the case is the Indigenous People of Biafra, which is not a registered entity in law. And even if it is registered, it can only be sued in the name of its incorporated trustees or indeed its accredited representatives. Furthermore, unlike other associations like the Nigerian Bar Association, IPOB is not recognised or mentioned or legitimised in any existing statute.
“For a suit to be competent, there must be proper parties before the court. In this case, the supposed defendant, IPOB, is a no-juristic person against which no action can be maintained in any court of law.”
Profs, Ali, Oyetibo, Buhari’s aide disagree
But a professor of Law, Yemi Akinseye-George (SAN), while admitting that an unregistered organisation was not juristic and could not be sued, recalled that a precedent had been set by the court in the case of Boko Haram, which was not registered, yet proscribed.
Akinseye-George stated, “You cannot sue an unregistered organisation. I’ve not seen the ruling but if the organisation is not registered, but Nnamdi Kanu was joined as one of the defendants, the application is valid.
“Again, we can take precedent from the Boko Haram case; a similar order was obtained against Boko Haram to declare it a terrorist organisation and the order took effect; so, there is precedent.
“In the first place, terrorist organisations cannot be registered by law, so, you cannot say because they are not registered, they cannot be proscribed.”
Another professor of Law, Fidelis Oditah (SAN), affirmed that though he did not know the status of IPOB, only a juristic organisation could be sued.
He explained that if IPOB was not a juristic person, the Federal Government would still have been able to proscribe it without going to court but by the President, obtaining power from the legislature to declare the group illegal.
Oditah added, “I don’t know about the status of IPOB, whether it is a juristic or non-juristic person. Assuming it is a non-juristic person, then, there is no person capable of being the subject of legal rights or obligations. That is the way that a lawyer will look at it. But that is not a complete answer because there are many amorphous organisations that can be clamped down upon notwithstanding that they have no legal existence.
“The reason that this issue has arisen is because the Attorney General went to court to obtain an order and one assumes that an order can only be directed at a legal person. But if it had been the legislature giving the President power to proscribe by a declaration, it might be possible for the government to proscribe an organisation such as IPOB even if it’s not a legal person.”
Aligning with the opinions of the dons, a SAN, Mallam Yusuf Ali, argued that IPOB could be proscribed in Nigeria even when the body was not registered in Nigeria.
He said a group existing “as a fact”, with its activities affecting the lives of other persons, could be proscribed even when such body was not registered.
He said, “IPOB is not registered but it is mobilising Nigerians against other Nigerians.
“Should we just fold our arms? Shouldn’t the doctrine of necessity come to the aid of the law to proscribe it?”
Ali recalled that although the Ibrahim Zakzaky-led Islamic Movement of Nigeria (also known as Shi’ites) was not a registered body in Nigeria, the group was proscribed by the Kaduna State Government after its members clashed with the Army in December 2015.
He said, “In law, it is not all the time that a non-registered body cannot be subjected to a legal action. The question is does the body have the ability to affect the lives of other people?
“There has been an old case in which the issue was determined. The court said in the case that although the body was not registered, its activities were affecting the lives of other people.
“It is a notorious fact that IPOB is not a body that could have been registered because it was a body set up to operate outside the law.
“So, IPOB exists as a fact even if you are closing your eyes to it because the law says it doesn’t exist.”
Another senior advocate, Mr. Tayo Oyetibo, stated that the proscription of IPOB was legal because of its activities, despite the fact that the group was not registered under the law.
Oyetibo said, “The assertion that the group is not registered cannot be a correct reason for attacking the proscription. This is because if a body, even in the guise of a masquerade, goes out to infringe on peoples’ rights, you can drag the masquerader in the form it is and deal with it.
“Can you allege some facts against a person, and on the basis of those allegations, come to a conclusion without hearing the parties concerned as to whether those factors are correct? It is not the registration but the activities that make an organisation seen to be carrying out illegal activities. You can hide under non-registration and carry out nefarious activities; that does not stop the law from dealing with you.”
But the Special Assistant to the President on Prosecutions, Mr. Okoi Obono-Obla, on Thursday, defended the order made by the Federal High Court in Abuja proscribing IPOB.
Obono-Obla said in a statement that IPOB was an unlawful society within the contemplation of Section 62 (2) of the Criminal Code, adding that the proscription order did not infringe on the members’ right to freedom of association.
According to the presidential aide, the Federal Government’s application requesting the proscription order was filed under the Terrorism (Prevention) Act, and not based on the principles applicable to civil proceedings.
The presidential aide stated, “It beats me as to how the argument put forward by Ebun-Olu Adegboruwa, an experienced and tested legal practitioner of many years standing, could use the principles of law designed and applicable to civil proceedings to argue that the order of proscription of IPOB is faulty because the body is not registered in Nigeria and therefore cannot sue or be sued!
“It is beyond argument that the application for an order, proscribing IPOB, was brought pursuant to the Terrorism (Prevention) Act, which to all intents and purposes is a criminal legislation!
“It is well settled that the rules of procedure that regulate criminal proceedings in the Federal High Courts and the High Court of the Federal Capital Territory, Abuja, is the Administration of Criminal Justice Act,2015 (not the Federal High Court (Civil Procedure) Rules or the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004.”
He also said in another statement that IPOB remained constitutionally proscribed as the Terrorism (Prevention) Act 2013, under which the court order was issued, did not make registration of a group in Nigeria a precondition for proscribing such body.
“The purpose of this treatise is to correct the impression that the order is unconstitutional.
“The Terrorism (Prevention) Act does not stipulate that a body must be registered in Nigeria or elsewhere before it can be proscribed, within the contemplation of the provisions of Section 2 subsection 1 of the Act.
“It follows that the proscription order granted by Justice Kafarati is lawful, constitutional and proper.”
Northern Elders Forum backs proscription
Also, the Northern Elders Forum expressed support for the decision of the Federal Government to proscribe IPOB.
According to the group, the decision was taken in the best interest of Nigeria’s corporate existence.
Convener/Leader of the forum, Chief Paul Unongo, said this while addressing journalists on the state of the nation, in Abuja on Thursday.
Unongo reiterated that northern elders were of the opinion that responsible governance and the rule of law were the fundamental prerequisites for the realisation of peaceful and prosperous societies as well as the protection of human rights and dignity.
The former Minister of Steel Development during the Second Republic noted that members of the forum were disturbed about recent developments in the polity which had titled towards the subversion of the Nigerian state.
While condemning the recent unprovoked attacks against northerners in some states in the South-East and South-South of Nigeria, the NEF commended the maturity of northern leadership, represented by the Northern Governors’ Forum, among others.
Unongo added, “The NEF commends the readiness and willingness of the Federal Government of Nigeria to take all necessary measures that are permitted under the law and by the constitution of the land to check all these existential threats to Nigeria.
“The NEF also welcomes the presence of Nigeria’s military and other security personnel in all of the country where peace and security are severely threatened.
“The President, Commander-in-Chief has the prerogative of deploying the Armed Forces for the purpose of keeping the peace. This prerogative should be respected by all well- meaning Nigerians.
“The NEF welcomes and commends the decision taken by the South-East Governors to denounce the activities of the organisation known as Indigenous People of Biafra and its proscription in their respective states.”
He added that the North would remain vigilant on the security and welfare of northerners in the South-East, South-South and other parts of Nigeria.
“It will not sit idly and watch the nation sink into chaos under new and additional threats. It is in this regard that we strongly support the Federal Government official proclamation, proscribing IPOB and its activities throughout the territory of the Federal Republic of Nigeria,” he added.
Perhaps in a veiled reference to the ongoing agitation for the restructuring of the Nigerian federation, Unongo said the North recognized and acknowledged that there were demanding and legitimate questions on the current operations of the Nigerian state.
“The North will demand a respectful and responsible approach to its participation in the search for answers to the many questions confronting our country,” he stated.
We’ll come back stronger, says IPOB
But IPOB, on Thursday, condemned its proscription by the Federal High Court in Abuja on Wednesday.
In a statement by the group’s Media and Publicity Secretary, Emma Powerful, IPOB stated that President Muhammadu Buhari had betrayed what it described as his secret agenda of exterminating the people of the South-East by what it called his skewed and despotic decisions against IPOB.
It urged the Biafra people not to lose any sleep by the proscription order, saying the group would come back stronger than ever.
The group said, “IPOB is recognised and operating lawfully in over 100 countries and territories around the world. Our conduct in each of these countries has remained impeccable and exemplary.
“We urge Biafrans to be resolute because we are almost at the gate of freedom which the Nigerian government cannot stop.”
It said by granting the order proscribing and labelling IPOB a terrorist group, Justice Kafarati had placed his judicial reputation on the line by openly siding with evil.
It wondered how an organisation that was pronounced a lawful organisation in March by a Federal High Court, presided over by Justice Binta Nyako, would, in less than six months, be declared a terrorist organisation.
It vowed to challenge the proscription order, saying it could not stand in law and in fact.
Justice Nyako had, in her ruling, stated that the allegation in Count 3 in the case of the FG vs. IPOB, relating to “managing of unlawful society punishable under Section 63 of the Criminal Code Act” could not be substantiated by the proof of evidence.
She held that the prosecution failed to show that IPOB was indeed an unlawful organisation as its proof of evidence was unable to exhibit any evidence that the organisation had been proscribed or that it was not registered either in Nigeria or in the United Kingdom.
IPOB added, “Unarmed, peaceful IPOB should never and cannot be labelled a terrorist organisation when Fulani herdsmen from Buhari’s tribe, with their Hausa-Fulani soldiers in the Nigerian Army, are the ones killing IPOB family members.
“We are not terrorists and can never be because our struggle for Biafra self-determination is our undeniable right under the United Nations and African Charter which Nigeria is a signatory to.”
Every group like IPOB’ll be proscribed –Presidency
The Presidency, on Thursday, said every other group that operated like the secessionist group, Indigenous People of Biafra, would also be proscribed and tag a terrorist organisation.
The Senior Special Assistant to the President on Media and Publicity, Garba Shehu, said this during a live television programme titled, ‘Sunrise Daily’ on Channels Television.
Shehu said IPOB operated like Boko Haram by declaring an independent state and hoisting a foreign flag on Nigerian soil.
He also accused the secessionist group of printing Biafran currency; issuing Biafran passports and extorting money from people under the guise of compulsory tax collection.
When asked what the Federal Government would do if a similar group emerged following the proscription of IPOB, Shehu said, “If another group comes up and produces passports and produces currency and sets up an intelligence agency and a para-military organisation of sorts, the law will apply to them as it did to IPOB.”
The President’s spokesman said groups like the Movement for the Actualisation of the Sovereign State of Biafra, would not need to be proscribed because they were not as violent and unruly as IPOB.
He said the Arewa youths, who issued a notice to quit to Igbo, were not given the IPOB treatment because they had withdrawn their threat and had succumbed to the voice of reason.
Shehu, however, said the same could not be said of IPOB.
The President’s aide also rubbished arguments that the Federal Government was treating the herdsmen crisis with kid gloves.
He said, “There is a criminal activity and terrorist activity. Yes, the Fulani herdsmen are a criminal gang and they are being dealt with in accordance with the law but IPOB, like Boko Haram, has carved out a territory as a sovereign state and they have raised concerns in Kogi and Benue and have boasted that they will take over Bayelsa and Rivers.
“That was exactly what Boko Haram did and the taxation system and hoisting of flags. This is not acceptable.”
When asked why the government was able to quickly identify the source of IPOB’s funding but had failed to trace that of Boko Haram, Shehu said IPOB’s case was easier because they usually canvassed funds openly.
He said, “Funding is canvassed for IPOB openly in some Western countries and traders of Nigerian origin in these countries send money back home. Why is the government not able to identify the source of funding for Boko Haram?
“It is perhaps more complicating than we are seeing and if you look at the President’s message at the United Nations, he asked for the funding of Boko Haram be traced and blocked.”
We’ve no knowledge of IPOB activities, says France
Meanwhile, the Republic of France has expressed surprise over allegations by the Federal Government that IPOB has its financial headquarters in France.
It denied knowledge of IPOB’s activities and presence, saying it was ready to examine any information that could support the Federal Government’s claims.
The Minister of Information and Culture, Alhaji Lai Mohammed, had alleged that IPOB was being funded by some sympathisers in France and other foreign countries.
He also accused the United Kingdom of allowing Radio Biafra to “operate in the country” under the guise of freedom of speech.
“We have the records. We know IPOB collects money from many people in diaspora. They collect money from many people in Nigeria; they collect money from some foreign countries, this is clear. Let me tell you, the financial headquarters is in France,” he stated on Wednesday.
But the Embassy of France spokesperson, Claude Abily, in her reaction on Thursday, noted that the Federal Government never raised the issue with the French government before going public with it.
Abily said, “The Embassy of France was surprised by the statement made yesterday (Wednesday) by the Minister of Information and Culture, indicating that the “financial headquarters” of IPOB were in France.
“We don’t have any knowledge of a particular presence of IPOB in France and the Nigerian authorities never got in touch with the Embassy on this point.
“We stand ready to examine any information which could support this statement.”
“Furthermore, we would like to reiterate that France actively cooperates with Nigeria in the field of security and that we strongly support the unity of the country.”
The United Kingdom, in the same vein, said it was not aware of any representation by the FG on Radio Biafra.
The Press Officer, UK High Commission in Nigeria, Joe Abuku, said the British government would consider request to shut down Radio Biafra on the basis of available evidence.
“Were we to receive any such request, we would, of course, consider it carefully on the basis of the available evidence, recognising that freedom of speech and expression carries responsibilities,” Abuku added.Punch