10 Legal Cum Political Implications Of The Court Order Declaring IPOB A Terrorist Organization: A National Shoot-Yourself-In-The Foot Disease By Kennedy Emetulu

Originally, upon reading about the court order declaring IPOB a terrorist organization, I was a little amused; but now this amusement has been replaced by sadness. I am sad that people who are horribly incompetent and who may plunge this nation into a terrible crisis we may not be able to recover from are the ones ruling us. Okay, let me explain.



When the Defence Headquarters made that booboo of declaring IPOB a militant terrorist organization, I immediately wrote something that explained the law and showed that the Army is not the appropriate authority to declare any group a terrorist organization. I explained in detail how it should have happened based on the provisions of the Terrorism (Prevention) Act, 2011 (as amended). I also explained that government would be ill-advised to seek to legalize the illegality by now seeking a judge to grant the order. Of course, despite my doubts that any judge worth his robe would grant such an order after this initial mess and based clearly on the fact that IPOB is not a terrorist organization as the evidence is simply not there to support such an order, we know that in Nigeria anything can happen. Now, it seems to have happened because a copy of the order from a judge is being passed around on social media and it’s dated Wednesday, 20th of September 2017, the same day it started circulating.

Now, I want you as a Nigerian to pause and digest this information. We have a government where the Vice President is a SAN and the Attorney General is a SAN, but they couldn’t simply understand that based on our laws, the Army is not the appropriate authority to declare an organization a terrorist organization. There is nothing complicated in this, the Goodluck Jonathan administration has done it in relation to Boko Haram in 2013, so there is a precedent at the presidency and the Ministry of Justice to look at and follow, yet they simply failed to follow it. Then, after failing, they have now gone to court to do what they ought to have done in the first place. Yes, they’ve done it, but as we can clearly see, they have again failed to do it appropriately.

First, there is no reason for the court order issued on Wednesday, 20th of September 2017 to be in public space on the same day before it is published in the official gazette and two national newspapers and at any other place the judge in chambers may have determined according to the requirements of the Terrorism (Prevention) Act, 2011 (as amended). Clearly, the order making the rounds in social media has no direction from the judge that it should be published in social media. Also, we know as a matter of fact that the President is still out of the country. It is his duty to sign and gazette the Proscription Order that would then immediately act as Notice to Nigerians about the new status of IPOB. It’s not something he can delegate and it’s not something he could have done in advance of the order. So, why do we have this order littering the social media before it becomes a lawful Proscription Order? Again, what all that tells us is that the people running our affairs, even at the professional level of the Ministry of Justice, are pathetically clueless.

Now, let’s consider the legal and political implications of this court order:

(1) The first thing I can say is that the Nigerian government has given IPOB its first clear-cut victory with this order. IPOB might decide to challenge the order or not. In both cases, it will come out a winner. If IPOB challenges it, the hearing, up to the Supreme Court level, will be an embarrassment to the government. I make bold to say the appellate courts will not spend much time in deliberation to reach the verdict that IPOB cannot be declared a terrorist organization.

Here is what I said in my article, “IPOB, the Armed Forces and a Coup Against Civil Authorities":

“For public policy reasons, judges will also be mindful of section 2(3)(ii) of the Terrorism (Prevention) Act 2011 (as amended), which clearly states that nobody should be treated as a terrorist because of his or her political beliefs. They would be mindful that IPOB is a political organization fighting for self-determination, which is lawful under our Constitution and international law. They would be mindful of the fact that such a declaration would endanger free speech and freedom of assembly and would threaten so many other civil society organizations in the country. It certainly would undermine our democracy greatly and no sane judge would want to be the one to do such a Judas’ job”.

(2) Now, the government has fired the first shot on the legal front, but that is only the first shot and it’s fired it leaving its flanks exposed. This is because as it is right now, IPOB is still a lawful society by virtue of the decision of the same court as the one that signed the order. As I stated in my article mentioned above, this was the decision of the Justice Binta Nyako of the Federal High Court, Abuja on Wednesday, March 1, 2017. That decision still stands and despite this order, IPOB can still rely on it until it is challenged and an appellate court declares otherwise. The mere fact that the government obtained an order declaring IPOB a terrorist organization from the same court or a court of similar, concurrent or coordinate jurisdiction does not overrule the decision of Nyako’s court. This has been settled in the Supreme Court case of Orji Kalu v Federal Republic of Nigeria and Others (SC.215/2012)[2016] NGSC 34 (18 March 2016).

(3) We now have to see, if this is challenged, how the judges and justices of the appellate courts will interpret this order. But, in the meantime, IPOB can use the process of challenge for good propaganda. It can declare that even though it does not need government recognition to operate as a lawful society, since the courts have recognized it as such, it would be challenging the order in order to protect freedom of speech and freedom of assembly under our Constitution.

In the meantime, we need to bear in mind that the government is already at war with Nigerian civil society organizations over a bill in the House of Representatives seeking to further regulate the activities of civil society groups. The bill is sponsored by Umar Buba Jibril and the civil society groups have interpreted this as an attempt to clamp down on free speech and freedom of assembly and, as we speak, the Socio-Economic Rights and Accountability Project (SERAP) has put it in the UN system before three UN Special Rapporteurs, Ms Annalisa Ciampi, Special Rapporteur on the rights to freedom of peaceful assembly and of association; Mr Michel Forst, Special Rapporteur on the situation of human rights defenders and Mr David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

So, the prospect of civil society organizations joining IPOB to challenge this for fear that allowing this to stand gives the government another backdoor to take away civil liberties is simply not good for the government. This is because increasingly, the Buhari government will be effectively painted as a dictatorship - a dictatorship that wants to take away the right to free speech, the right to freedom of assembly and the right to self-determination from its people. IPOB’s credibility and goodwill can only increase under such circumstances, no matter the outcome in court.

(4) The Terrorism Prevention Act, 2011 (as amended) actually protects organizations like IPOB. Section 2(3)(ii) states clearly that “political parties should not be regarded as proscribed organizations and nobody should be treated as such because of his or her political beliefs”. Though IPOB is not a political party, the most significant thing about it is its political belief in referendum and secession. The only ‘evidence’ the government will be presenting to show that IPOB is a terrorist organization is Item (e) in the “Public Awareness on the State of Independent People of Biafra” statement made by the Defence Headquarters when declaring Boko Haram a militant terrorist organization which reads: “Militant possession and use of weapons (stones, molotov cocktails, machetes and broken bottles among others) on a military patrol on 10 September 2017”. That was the same thing that the Minister of Information, Mr Lai Mohammed was parroting in his Wednesday September 20, 2017 statement to the press when he declared that IPOB “used weapons such as machetes and Molotov cocktails and mounting roadblocks to extort money among others”.  When the judges look at precedent and note that only two organizations have been declared terrorist organizations in our nation’s history and they are Boko Haram and Ansaru, when they look at the kind of things Boko Haram and Ansaru are doing and they compare these with whatever IPOB has been accused of, they would be hard-pressed to agree with the government. I’m predicting if the order is challenged, the government will fail and that would be more embarrassment.

(5) The IPOB issue is also bound to divide government because it’s obvious that not everyone in government shares the presidency’s view that IPOB is a terrorist organization. The Senate President Abubakar Bukola Saraki said as much, even if diplomatically. One can imagine many of his colleagues in both houses feeling the same. Indeed, it’s such a highly emotive matter that the division could cut across every level of government, including the civil service and several other strategic areas. I mean, with Ohanaeze Ndigbo already stating clearly that IPOB is not a terrorist organization, it’s difficult to get a majority of Ndigbo to agree with the government, irrespective of the fact that many disagree with IPOB and Kanu. Many of these Igbo people who’d feel rightly or wrongly that this is ethnic persecution are also in government in various areas.

(6) If IPOB chooses not to challenge the order, it might simply metamorphose into something else and there’s nothing the government can do. Obviously, the order prohibits IPOB from operating “under any name or platform however called or described”, but how do you determine that any new organization is IPOB? I mean, people are free to form associations and assemble in the name of such associations without fear of the law. For instance, if tomorrow we hear that there is a new group called “Biafra Peace Initiative” and Nnamdi Kanu is not a known member, what would the government do? If the organization declares its aim as “the pursuit of peace, self-determination, and development in the South East”, what would the government do? There will be no basis to ban it at all because you cannot just decide to ban an organization simply because you suspect it is another proscribed. You have to prove it. There is nothing in our laws as at today that bans the use of the name or term, Biafra. I can name my son, dog or business Biafra and that will not be unlawful.

(7) The government by this order has just elevated Nnamdi Kanu and IPOB to more national and international prominence. Before now, Kanu was a misguided lout who seized on a potent self-determination movement and was fast leading it in the wrong direction; but, today, through this order, Kanu has become a legitimate freedom fighter. In the eyes of even some of those who ordinarily do not like him or his conduct, IPOB has become the persecuted organization for the freedom of the Igbo people. It never looked that way a few months ago, but the government has made that possible now. For every IPOB activist arrested and tried, many more will throw their goodwill behind the organization. For any accusation thrown at IPOB, many more will see it as a frame-up and government’s continued attempt to kill off young Igbo people. It may not look so now, but once the government begins to implement this order, it will lose goodwill all over the country and in the international community because many will strongly interpret it as political persecution. In a country where Boko Haram commanders are being freed from jail and no one is worrying the murderous Fulani herdsmen, choosing to focus on IPOB activists will be the confirmation every freedom-loving person needs to conclude that the government is a divisive, sectional and unjust government. When IPOB activists go to European and American capitals and declare that a systematic ethnic cleansing is going on in their homeland, people around the word will believe them. Already, the federal government is unnecessarily acquiring powerful enemies against itself with its claims against France and the United Kingdom over what it considered as their support for IPOB activities. In its one-sided arguments against these countries, it’s embarrassingly exposed itself as a government that has no idea of what freedom of expression entails. I mean, even during the Civil War, we never had both powers on the same side against us; but. today, without much effort from IPOB, our government is already driving them into the IPOB column. That’s not good news for Nigeria.

(8) The order will give IPOB the space it needs to fine-tune its strategy underground. It will also afford Kanu the opportunity of a PR makeover. With the pressure of the everyday hustle and bustle in the public eye off him, he and his team would have time now to reflect and recalibrate their strategy to win more sympathy. The ban will mythologize Kanu and IPOB more and there is no amount of government propaganda that can beat them on that count.

(9) This order will give IPOB the universal legitimacy it needs in Igboland. Until now, a lot of Igbo people were looking at Kanu as an irritant and IPOB as a clueless organization that is not grounded in reality. They note that a lot of its activists are young people who have no idea what the Civil War was about being that a lot of them were not born at the time. But now with this order, parents and communities will fear for the life of their children and their protection instincts will kick in. So, even if they do not buy the message of IPOB by this very act, the government has forced them to take a side. For them, it’s about racial, ethnic and family survival now and the big enemy, as they will see it, is the government.

(10) Finally, it’s safe to say this order will further alienate the political leaders of the South East from the people and increase the distrust between the Igbo people and the central government in Abuja. In other words, national and state governance in the South East will be a big challenge because the government has not acted like the government in their estimation. The government has acted like an impatient enemy ready to further destroy a society that struggled to rebuild itself after the Civil War.

This court order (and the eventual proscription of IPOB) is totally unnecessary. There can never be any plus in this for the government. It has even made the work of law enforcement harder because this will definitely put a lot of strain on police-community relations in the South East. Indeed, by this action, it is clear that aliens are the ones advising this government. This is the last thing they should have thought of doing.

What is needed is a dousing of tension, not only in the South East, but also throughout the nation. Starting with the South East would have been strategic. It’s obvious that the self-determination movement is a potent movement even though it lacks a credible leader at the moment. It’s true that Kanu is the leader today and has a mythical status amongst the young activists, but all that is built on nothing but how government has treated him. By arresting and locking up Kanu in the first place, they lionized him. That’s his only claim to leadership of the movement. What the government ought to be thinking is how to engage him and bring him to the table because that is actually his Achilles heel. Kanu has been on this now for the better part of three years, but there’s nothing by way of a structured idea of what the movement wants or what they are about. It’s largely been built around his personality cult and the anger of the common people. Government would have humbled him if they’d invited him for talks. The honest truth is that there’s a limit to which he can continue to shout secession if government is engaging him. The cry of secession is only loud when government continues to ignore the South East in development and appointments. But beyond that if the government is telling him that they are willing to talk with him and that he should propose what needs to be talked about, Kanu would be lost in no time.

Government can start by challenging him to propose something for the young jobless people following him. It can encourage Igbo leaders to take a leaf from how OPC metamorphosed from a violent self-determination group into some kind of special community security organization helping law enforcement. They will let him know that we are all Nigerians, we want Nigerians to work and now Nigerians are talking loudly about how they want Nigeria to work. The restructuring debate is part of that and even though government is not there yet, it is a good platform for everyone, including Kanu and IPOB, to make their point. They should be encouraging him to meet with other Nigerian groups seeking restructuring and self-determination, so they all can work out an agenda for national rejuvenation. Government cannot encourage people to run away from Nigeria, rather they can only encourage people to help build and rebuild Nigeria. Anger alone will not build Nigeria. Ideas and tolerance will. Government’s approach should be to defang Kanu and IPOB with a soft approach because that’s all that is needed to remove the venom in the South East.

However, what they have done now with this order is set Nigeria on a keg of gunpowder. It will bring no good to anyone.