Baring any last minute change of mind, human right lawyer, Jiti Ogunye may be quitting Facebook.
This is not unconnected with the reactions that trailed his argument on the legality or otherwise of operation Python Dance in the South-East.
Jiti Ogunye expressed disappointment with the reactions of some commentators who sometimes used abusive language to express themselves.
In what appears to be his final facebook post as reproduced below, Mr. Ogunye took time to reply everybody who responded to his posts and gave some legal advice free. Enjoy the write-up.
OPERATION PYTHON DANCE II AND DECLARATION OF IPOB AS A TERRORIST ORGANISATION: MY FINAL FB POST
This Post is in response to the enquiries and requests of many of my esteemed FB Friends and other fellow compatriots who, through their commentaries on my earlier posts on this controversial subject, and through messenger, have sought clarifications of my position on the legality and constitutionality of deployment of the military to the South East in Operation Python Dance II, and declaration of IPOB as a terrorist organization by the Ministry of Defence ( Defence Headquarters the military or Nigerian Army).
Until very recently, I have not been a regular FB user. This was so for two reasons. Time constraint, and the penchant for use of intemperate, insulting and derogatory language on FB. I have always believed that we can chat and cross fertilize ideas on FB without savaging one another. . Ninety five percent of my FB, friends were the ones who requested to be my friends. Requests which I gladly accepted. I hardly request for FB friends.
I cannot, therefore, understand why anyone of my FB friends, whom I cherish, should be so angry at what I post that he or she should trade insults. In the past two or three weeks following my intense use of FB, I have read such words as “you are writing rubbish; you are talking nonsense; you are blowing grammar; you are a liar; you are spreading falsehood; and I have read such incredible disparaging remarks about, and dismissal of my profession such as “lawyers are the problems of this country; these are charge and bail lawyers; he is writing for recognition; he is looking for attention”.
More troubling, for me, I have read people write “ let us put the law, the Constitution and fundamental human rights and the rule of law, aside” And I have seen people put down public legal education and human rights enlightenment with a derisive “ enough of face book lawyering. Go to court and challenge the action if you like” These are troubling, indeed.
Now to the clarifications and answer to the enquiries. To my friends, Dr. Eragbai Isuku, My brother Oladipupo Olayoku, My Friend Mobolade Omonijo, and other persons who have requested for further clarifications, Kindly take the following as my response to your requests.
When the soldiers of the Nigerian Army (14 Brigade) were deployed to Abia State, and Umuahia in particular, under Operation Python Dance II, I supported it. I disagreed with those who were of the view that the deployment was an invasion. I stated that the South East was not an IPOB’s territory from which the Federal Government of Nigeria or the Nigerian Army should keep off. I maintained that the military had a right of way in Umuahia, and that it was wrong to prevent soldiers from conducting their patrol, and assailing them with missiles (stones sticks, and bottles). Some of my colleagues in the human rights community were very concerned. They believed that given the pedigree of the military, they could indulge in rights abuses and massacre. I remained resolute, more so when the Constitution allows the President to deploy and operationally use the military (without recourse to the National Assembly; and without any proclamation of a state of emergency under Section 305 of the Constitution) to put down an insurrection, or to maintain and secure public order and safety. (See the provisions of Section 217 (2) ( c ) and Section 218 ( 1, 2, & 3) of the Constitution; and Section 8 (1 & 3 ) of the Armed Forces Act, Cap A20, Volume 1 of the Laws of the Federation of Nigeria 2004 ).
I believed that the scope, extent and dimension of IPOB’s activities were insurrectional, even if the insurrection was still incipient and inchoate and was not yet full blown. This, in my view, warranted a military intervention. In part, because the police have proven incapable of dealing with the mayhem. But let me be clear. I am not discussing this issue of support for the military as a revolutionary, a class agitator or a warrior. I support the military operation not because it is expedient, or because as many of our scaremongers have said, we are on the brink of war, but because the operation is lawful. It is constitutional. And because in the prevailing situation it will restore “order” and “peace” I have since written an article titled “Operation Python Dance II in South Eastern Nigeria is legal and constitutional” in Premium Times, the leading online newspaper in Nigeria on 15th September, 2017.
Interestingly, some of our treasured friends ( not just FB Friends) and colleagues in the human rights constituency, especially of South East extraction, who are now up in arms against deployment of soldiers, were staunchly in support of military deployment and the operational use of soldiers, for the conduct of the 2015 election. Some of them who worked in institutions during the Goodluck Jonathan era issued statements against our positions that soldiers should not be used to militarize elections. Deployment of the military was good then, under Goodluck Jonathan for elections, but it is no longer good now under Muhammadu Buhari because there is no insurrection and issue of public safety and order.
I must, however, state that conducting military operations all over the Country is not sustainable. Law and order ought not to be maintained and public peace and safety kept by pervasive military operations all over the country. It gives the impression that Nigeria is in a state of perpetual war, with its attendant consequences.
When the video recording of the alleged acts of the human right abuses of IPOB members surfaced and went viral, I condemned the alleged abuses and I called on the Nigerian Army to mete military justice to the perpetrators of the barbaric acts. Obviously, in recognition of the illegalities and offensiveness of the barbaric acts, the Military High Command reacted to the issue, denouncing it and promising investigation. It assured it was going to impose disciplinary actions on those who might be involved in the inhuman and degrading treatment of unarmed civilians, albeit alleged members of IPOB.
I was, however, shocked by the response of some of my FB Friends to the alleged acts of the military. Many denied it on behalf of the military, even when the Army did not deny it absolutely, but promised investigation. They quickly labelled it IPOB’s propaganda and mischief. Some other commentators even shocked me more, when, without mincing words, they declared that the IPOB members deserved that treatment. It served then right, they said. In their thinking, a government and its armed forces can, and should use terror to cure terror.
Some of our young left wing radicals, directly, and some of our liberal professional colleagues, obliquely, condemned me. Because I support the military operation, they accused me of backing militarism, and the ruling class against the oppressed classes. Some said we were shedding crocodile tears, insisting that we ought to have contemplated that the military would abuse the rights of civilians when, we gave our support to the military operation. In a tone laced with derision and vindication, they urged us to accept responsibility for any outcomes of the military operation, as intellectual enablers and armchair justifiers. One left wing rookie labelled us a “confusionist”, and another FB Friend, one Onu John Onwe called it “crocodile concerns by slaves of the autocratic state”
In our Premium Times Article, we reacted to such charge as follows:
“A military operation does not become illegal or unconstitutional because alleged or real rights violations occur during the operations. And if one decries or condemns rights abuses that occur in the course of a military operation, one does not become hypocritical because one earlier had pointed out the legality and constitutionality of the military operation. A declaration or prosecution of a war does not become illegal or unconstitutional because of incidence of rights abuses by soldiers or perpetration of war crimes during the prosecution of such war. Amnesty International has been having issues with the Nigerian Armed Forces over alleged gross human rights violations in the course of prosecution of the anti Boko Haram War in North Eastern Nigeria. That does not render the military operation in the North East illegal and unconstitutional.”
The third layer of the controversy soon ensued.
When the military “declared” IPOB a terrorist organization, and the South East Governors, rising from a meeting proscribed it, I, again, intervened. I was convinced that both the military and the Governors were treading the path of illegality to deal with criminality. I regarded and I still regard the action of the military and the Governor as illegal and unconstitutional. I believed, and I still believe that the threat and criminality of IPOB are better dealt with, using the rule of law. The Federal Government of Nigeria, the Presidency, the Police, the Armed Forces, and other law enforcement agencies are created by the Constitution and the law. They should not act lawlessly, and we all have a civic duty not to encourage them to act lawlessly.
My argument is simple. The military lacks the power to declare that an association or an organization is a terrorist organization or to proscribe an association for being a terrorist organization, under the Terrorism Prevention Act, 2011, as amended by the Terrorism Prevention (Amendment) Act, 2013; and that the State Governors, acting together, could not use their meetings to proscribe an association, IPOB or any other. I stated my position, as follows:
“””””Two anomalies have occurred today in dealing with the challenges posed by IPOB.
First, the Nigerian Armed Forces, through the Ministry of Defence (Defence Headquarters), announced that it IPOB has been designated a “terrorist organization “. Second, the Governors of the South East States rose from their meeting with the Military in Enugu, and announced that IPOB and its activities have been proscribed in all the South Eastern states. Both steps are illegal and unconstitutional.
Under Section 2 (1)(c) of the Terrorism Act, No. 10, 2011, a judge of the Federal High Court in chambers may on an application made by the Attorney General of the Federation, National Security Adviser or Inspector General of Police on the approval of the President declare any entity to be a proscribed organization and the notice should be published in a National Gazette.
When the Judge sits in Chambers, he usually sits on an application ex parte. In this case, an application is heard and determined without the target party, the organization being sought to be proscribed being first heard and granted a fair hearing. However, upon the proscription of the organization, it, rightly, can approach the court for a de-proscription order.
Evidently therefore, the Defence Headquarters had no statutory power to proscribe terrorist organizations. The military, in recognition of its subordination to civil authority, ought to have liaised with the designated authorities that possess the power, if they are armed with intelligence or security reports warranting the designation of IPOB as a terrorist organisation, and its proscription. This smacks of the lack of coherence and coordination of law enforcement and security agencies that afflicts the Buhari Presidency.
The law is that statutory powers specifically donated to certain authorities cannot lawfully be exercised by any other authority. And also provisions of a law that contains penal provisions or provisions abridging entrenched fundamental rights must be construed and interpreted very narrowly. Any slight deviation from its prescriptions shall be held against the authority claiming its benefits, and who intends to rely on the provisions of the law to justify its action.
The intendment of the law giver in making the two branches of government (executive and the judiciary to collaborate in proscribing an organization is obvious. The judiciary is the independent arm of government that can soberly and dispassionately assess and determine whether there is a basis in law, having regards to the definition of acts of terrorism under Section 1 (2) of the Terrorism Act, to grant an order proscribing an association. In this regard, the provision of Section 2( 3) (2) must be kept in view. It provides that ” for the avoidance of doubt, political parties should not be regarded as proscribed organizations and nobody should be treated as such because of his or her political beliefs. ”
Apart from the issue of statutory compliance, fairness requires that we interrogate whether the intendment of the law giver has been dutifully and patriotically served in the designation of IPOB as a terrorist organization. Is this designation and proscription a hurried, kneejerk approach by the military to provide justification for Operation Python Dance II in the South East in the face of allegations that the South East was being invaded? Of course, the definition of “acts of terrorism” under Section 1 (2) of the Act is so wide that IPOB easily will fit the designation.
But is this alleged proscription done in good faith? Or is it done as a ” deus ex machina” to enable the military reap maximum operational benefits from it, in order to be better able to accomplish the mission of their operation ?
If an operation is being questioned and challenged as untenable, what is the better tactics to justify the operation than to quickly declare one of the objects, if not the main object of the mission a terrorist organization? With that, the case is closed. Anybody that associates with the organization thenceforth becomes a conspirator or a terrorist sympathizer or helper, a criminal offence under the Act?
Can we honestly place IPOB and Boko Haram on the same pedestal? These and more questions will be asked in the coming days.
On the second issue, it is baffling that the South East Governors came out with that communique, proscribing IPOB. Under the law and the Constitution, they lack the power to do so. They are not military administrators ruling by edicts. That decision shows that they were in a panic mode. Were they acting altruistically but ignorantly; or acting under intimidation or pressure?
Moving forward, our assessment is that the FGN needs a more coherent legal strategy in handling IPOB”””””””
In reaction to that post, many impatiently gave us a flak for emphasizing legality and technicality at the expense of public safety and security, even when war, according to them, was ominous. Some reacted that we were writing nonsense. Some said we were spewing rubbish. Some said lawyers and judges were the problems of Nigeria. Twice a post of a Mr. Musibau Alamu Lateef on the subject was dumped on the thread of the commentaries on my page, with one commentator, asking me to react to Mr. Musibau Alamu Lateef.
In Mr Lateef’s post, those who had posited as I I argued regarding the provisions of the Terrorism Act, 2011, were called liars, spreading false information, whose knowledge of the law was suspect. I was shocked to read Musibau Alamu Lateef state very categorically that the Terrorism Act, 2011 was dead, and that the law was no longer the current law as same had been superseded by the Terrorism Amendment Act, 2011. He declared, without brooking any opposition to his position, that Section 2 (1)(c) of the Terrorism Act, No. 10, 2011that I cited was no longer operative, and that same could not be found in the new law. He accused people who were arguing like us of misleading the public. I was in shock. Before putting up my post that night, I had read the 2011 Act and its 2013 Amendment in the Chambers. The hard copies of the laws. I also had waded through all the Statutory Instruments made, and Gazette that were published pursuant to the Terrorism Act, including the Boko Haram Proscription Order. One of the Regulations contained in a Statutory Instrument governs terrorism funding or financing, and duties and obligations of banks, etc.
The 2013 Amendment did not repeal the 2011 Act, as implied by Mr Lateef. It merely fortified it, amending it insignificantly, adding some new sections and incorporating the new sections into the 2011 Act, thereby rearranging and renumbering the sections of the 2011 Act, and preserving the 2011 principal legislation. But here was Mr. Lateef, a man that one of the commentators in the thread called “my Professor” furiously and abrasively contending that the 2011 Act and the proscription section were no more. He was very wrong, but very confident, disdainful and magisterial in his faulty appreciation of the state of the law.. He even warned people like me using the internet to mislead the public and spread falsehood that the Cybercrimes Act is there to take care of those who spread false information, and that they should be prepared to bear responsibility for such acts.
Contrary to the incorrect representation of Mr. Lateef’s post, the 2011 Act remains the extant law. It was not substituted or repealed. It was only amended. It is like arguing that certain preserved provisions in the 1999 Constitution of the Federal Republic of Nigeria are no longer valid or that they have been repealed or are no longer applicable because of three alterations of ( amendments to ) the Constitution.
Noticeably, when documents, facts and interventions started emerging disproving Mr. Lateef’s assertions, instead of accepting that he was in error, and apologizing to the people he has defamed, he has maintained a straight face and he has been putting up a spin. He started adjusting or revising his position. He is now arguing that his position is that it was not illegal for the military to identify and label or declare IPOB as a terrorist organization. We are now being told that there is a difference between labelling, identification and declaration, and proscription. That the military did not proscribe. It only labelled. No sir. No to escapist semantics. Labelling is declaring. And Declaration can only be made under the provision of Section 2(1) (c ) of the Act. Mr Lateef , we say with due respect, has not shown the portion of the Act that allows the military to label IPOB or any organization as terrorist, generate a military dispatch or operational communication, order or an advisory to Nigerians based on that labelling.
Our position is that the military lacks the power that Mr. Lateef’s analysis is awarding it . Such powers were not donated by the law. The military can identity terrorist organization. But it is not a standalone duty. Upon identification, comes proscription and publication of the proscription in a Gazette.
So, if you want to understand why we have spent much time writing about all these, it is because we believe in the rule of law and the due process of law.
Our argument is not that IPOB cannot be declared and proscribed as a terrorist organization. As the law stands today, going by the very wide statutory definition of terrorism, it easily can. We can debate the political correctness, imperatives, exigency or wisdom of that. Our insistence, however is that the law must be followed.
In any case, since we are now being told that there is a dichotomy between proscription and labelling of a terrorist organizations, and since we have not been told that IPOB has been proscribed, what then is the value of the declaration? The military was, and still is conducting a military operation in South East, IPOB’s Biafra, and the law is behind the military, why couldn’t the military stick to that role instead of veering off course to engage in the drama of labelling? Why could the military not allow the due process to be followed?
Declaring IPOB a terrorist organization was not an operational necessity for the military. Boko Haram was not officially declared a terrorist organization until May 2013. And we all know that the military had started fighting Boko Haram since 2009. In other words, the military did not have to label IPOB a terrorist organization in order to subdue it. Boko Hram was proscribed in 2013, but the military did not start winning the war until the eve of the 2015 Election.
In case you are wondering why I am dilating on or amplifying the issue of this labelling, let me tell us why. Late last year and in January this year, we had to provide professional services to our clients, Premium Times ), its Publisher, Dapo Olorunyomi and its journalist Evelyn Okaku, who were arrested by the Police at the behest of the Chief of Army Staff. The story of the encounter was all over the place in the media. The faceoff between the Army and Premuim Times started when Major General Alkali wrote a letter to Premium Times, accusing it of publishing adverse stories about the war against Boko Haram, and about the Chief of Army Staff.
The letter dated 22nd December, 2016 stated in paragraph 3, thus:
“””“These stories published without reference to the Nigerian Army in order to have a balance, have without doubt exposed your deep hatred for the leadership of the Nigerian Army, the Nigerian Army as a service and the Nigerian nation for undisclosed reasons. It is submitted that your unprofessional one sided and unprovoked attacks on the Nigerian Army and its leadership, especially with regards to its operation in the Country have confirmed your unalloyed loyalty to the terrorist cause.””””
Naturally, PT was alarmed. The charge of “unalloyed loyalty to the terrorist cause” was terrifying and PT, acting on our legal advice confronted it. Happily, the matter was later resolved between the military and PT. I cite that encounter as an example of how easily persons and associations could be labelled and declared as terrorist organizations or sympathizers if the rule of law is discarded. Civil liberties and entrenched constitutional rights could be endangered.
As I stated in my response to one of the enquires, I am worried by the anarchic and fascist tenor of the comments of many of our compatriots.
Even when it is obvious that we have no disagreement with the shared objective that IPOB and Kanu be made to face justice, many of our people insist still that the law and the Constitution must be jettisoned and discarded in achieving the same objective. We can follow the law and achieve the same objective.
The way many of our people talk about instant, summary (even martial or revolutionary) justice is scary Are these whom we really are? Spontaneous, impulsive people, impatient for redress? Is this why lynching and mob killings are so rife in our society?
A society under the rule of law must be a detailed and punctilious society. When a judge pronounces a death sentence on a criminal convict, prescribing the mode or manner of execution like ” you (the convict) be hanged in the neck until you be dead. May God have mercy on your soul “, there can be no other mode of carrying out the execution like firing squad, waterboarding or drowning, gas chamber, electric chair or lethal injection execution? The exact mode pronounced by the Judge must be the mode. It just can’t be a case of “execution na execution. We no get time for rule of law”..
Concerning the Asari Dokubo’ case being bandied, unfortunately those who are sharing it do not have the legal knowledge to appreciate its import and the context of the decision.
Asari Dokubo was arrested owing to his militant activities and detained by the Federal Government. Festus Keyamo , now a SAN represented him in the application for his bail and enforcement of his fundamental rights. For reasons of his beliefs and principles, as a litigation strategy, he did not deny in his counter affidavit very serious allegations of treason and attempting to destabilise or overthrow the Federal Government by force of arms. And by not denying these allegations when he had the opportunity, he was deemed to have admitted them.
That was what the Supreme Court was reacting to when that postulation was made. More or less telling him, that he could not be talking about his individual rights when he was accused of threatening the collective rights of the society. The Supreme Court’ decision / dicta is not supposed to be a catechism for the subversion of the rule of law and breach of constitutionally guaranteed rights.
I hope, my friends, that I have clarified the issues.
My use of Facebook actively in the past weeks has been good. But I now realize that it is a terrible distraction .
Wishing you all a nice new week.
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