Many legal pundits have pontifi cated on the impropriety of the recent declaration by the Nigerian Army that IPOB is a terrorist militant organisation. Th ey have variously concluded that the action is unlawful, unconstitutional and invalid. Th eir erroneous conclusions are predicated upon spurious premises, as their perception of the validity of that act is exclusively tied to the Terrorism (Prevention) Act (TPA) (as modifi ed). It is this restricted perspective that leads to the misconception that the military cannot lawfully make such declaration. In this discourse, I intend to canvass the argument that the military has the constitutional and legal power to declare any organisation as terrorist. In doing so, I shall place heavy reliance on the extant laws of the land.
Let met point out, however,that my focus here is not to determine whether or not IPOB is actually a terrorist organisation, but to argue for the validity of the declaration in relation to the subject matter. Th ere are diffi culties in arriving at a universally accepted defi nition of terrorism. Th ese diffi culties arise from the fact that the term is politically and emotionally charged. Th e divergence in the defi nition of terrorism leads to the adoption of a sectoral approach in dealing with international terrorism.
In Nigeria, a statutory defi nition of terrorism is found in Section 1 of the TPA. Under the TPA, “act of terrorism” means an act which is deliberately done with malice, aforethought and which: (a) may seriously harm or damage a country or an international organisation; (b) is intended or can reasonably be regarded as having been intended to— (i) unduly compel a government or international organisation to perform or abstain from performing any act; (ii) seriously intimidate a population; (iii) seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation; or
(iv) otherwise infl uence such government or international organisation by intimidation or coercion; and (c) involves or causes, as the case may be— (i) an attack upon a person’s life which may cause serious bodily harm or death; (ii) kidnapping of a person; etc. It suffi ces to say that a textbook defi nition of terrorism is that it is the use or threat of violence, especially against civilians, in the pursuit of political aims, religious, or ideological change. Although terrorism has deleterious eff ects on national security, the duty on the military to fi ght terrorism is not bestowed by the TPA, since the military is not included in the list of law enforcement agencies in relation to the prevention of terrorism under Section 40 of the TPA.
Where then does the Army derive the power to meddle in the fi ght against terrorism? Th e involvement of the military in the fi ght against terrorism is a global phenomenon, though the war is an asymmetric one. Th e fi ght against terrorism is not a matter of cosmetic defi nition given by an Act of parliament but is a matter of strategies, operations and tactics aimed at ensuring national security, which terrorism threatens. By the combined provisions of Sections 2 and 3 of the Constitution, Nigeria is one indivisible and sovereign state consisting of 36 states and a Federal Capital Territory.
Any act threatening this constitutional provision is not only unconstitutional, but also poses serious threat to national security and cohesion. By section 217(1) of the Constitution, the Armed Forces is established for the purpose of (a) defending Nigeria from external aggression, (b) maintaining its territorial integrity and securing its borders from violation on land, sea or air, (c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president subject to conditions prescribed by an Act, (d) performance of such other functions as may be prescribed by an Act of the National Assembly. Having said that, the military can be constitutionally and lawfully used in the fi ght against terrorism; but the question now is, “can the military declare an organisation a terrorist organisation?”
Th e answer is ‘Yes’. In the circumstances at hand, our military, in lawful exercise of the powers conferred on it by the Constitution, carried out an assessment of the threat posed by IPOB and with the aid of information at its disposal came to the irresistible conclusion that IPOB is a terrorist organisation and should be combated as such for the purpose of safeguarding national security. Th is declaration which is consistent with the combined provisions of Section 217(1) of the Constitution and Section 1 of the Armed Forced Act, is lawful and well within the bounds of our extant laws. It is wrong to fault the declaration using Section 2 of TPA as a yardstick.
Th is is because the power of the military to fi ght terrorism is not derived from the TPA but the Constitution and the Armed Forces Act. It is therefore an error in law to fault the military declaration of the IPOB as a terrorist organisation especially when IPOB has displayed tendencies and overt acts that bring it within the defi nition of a terrorist organisation, even when viewed in the light of the defi nition of terrorism under the TPA.
Th e declaration is both strategic and tactical and no court has the jurisdiction to question a legitimate strategic and tactical military decision designed to ensure national security. According to Carl Clausewitz (1832) in his book On War, military tactics are the science and art of organising the military force, and the techniques for combining and using weapons and military units to engage and defeat an enemy in battle.
Th e army can employ strategies and tactics against an organisation such as IPOB, which purportedly has a security wing and what is referred to as the Biafra National Guard, a military formation subject to command and capable of carrying out operations upon deployment. Since IPOB’s objectives contravened the provisions of the Constitution of Nigeria regarding territory and indissolubility, our military has the constitutional power to consider them as “enemies” for the purpose of military combat. Th ey can do this by making strategic and tactical moves which might involve the declaration. Asuquo is a Lagos-based legal practitioner
