I have followed with keen interest the debate over the legality or otherwise of the Operation Python Dance II, the designation of IPOB as a terrorist organisation and the proscription of the organisation and its activities by Governors in that region.
Femi Falana’s position is that the use to which the military is being put is illegal. My Brother, Jiti Ogunye, thinks otherwise.
I lean more on the side of Jiti on this. I find it difficult to assume or accept that the intendment of the framers of the Constitution in Sections 217 and 218 could have been that the Commander in Chief would have to, or be expected to first seek the approval of the National Assembly before each routine, operation by the Armed Forces, especially given the different operations and assignments the military routinely undertake.
That would be cumbersome and an unnecessary bottleneck in the way of the activities of such vital security organ as the Armed Forces. It could not have been the plan that the security of the country or ability for prompt response will be compromised to for the C-in-C to secure approval before the commencement of each operation.
Well, things have now moved on beyond that. A definitive position of the law on the matter will have to be decided by the court.
Other developments -the military has announced a designation of the IPOB as a terrorist organisation on the basis of its activities. Governors in the region in which the organisation has its base have announced a proscription of the organisation.
Opinions differ again on the appropriateness and legality of these actions. Jiti Ogunye submits that both steps are illegal and unconstitutional. The process of designation as a terrorist organisation ought to involve the judiciary which is not known to be the case in this instance.
He equally submits that “the Defence Headquarters had no statutory power to proscribe terrorist organization” as the law prescribes for an application (exparte) to be 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 organisation and the notice should be published in a National Gazette.
We are not aware that to be the case in this instance
Some have said that the process of designating Boko Haram a terrorist organisation was not known to have been on the strength of a court order. Well, if that was the case, it was up to Boko Haram to challenge it. That being the case, in this instance, it should be up to IPOB to challenge the legality or constitutionality of the actions.
But I wonder though about the argument on proscription. He says “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.”
But I ask – Was IPOB a legally registered organisation in Nigeria? If it was not registered, could an organisation unknown to the law claim to have been illegally proscribed? Could an organisation not deemed to have been in existence in the eye of the law be said to have been proscribed when, in the first place, it was never in existence?
Setting out, this was to move beyond the legal gymnastics to situate this situation in another chair and to argue that when the issue has to do with the security of the nation, strict fidelity or adherence with the rule of law is often not the primary concern. Such is the case in many countries in the world.
Just as we debate in Nigeria the intendment of the law and applicability of the constitutional provision which expects the approval of the National Assembly before deployment of the Armed Forces, in America, the controversy as always been the case over the right of the US President to order military action having not approved the approval of the Congress. One after the other, American Presidents, of late, have proceeded to take actions only to inform the Congress later.
Indeed, these are external actions. But just as they might have been in violation of the municipal laws of US, many of these military actions were taken in clear violation of international law.
The Obama action on bin Laden was one such clear violation – the territorial integrity of another country was violated. The risks involved in that action was such that the President and his team had their hearts in their mouths all through the operation. With many of these military actions, leadership often only prays for the end to justify the means, having found themselves between the devil and the sea.
The USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) is her own way of finding away around the ‘generous’ rights of citizens in the face of growing concern at home-grown acts of terror.
My point is, when it comes to the matter of security, especially in the face of immense ability to use force by non-state actors, all the fine arguments about the law often takes the back seat where the security and sovereignty of nation-states is concerned.
It seems to be a case of the law will re-establish its position thereafter, let us do what we need to ensure the security of the people and the nation.
Simbo Olorunfemi works for Hoofbeatdotcom, a Nigerian Communications Consultancy and publishers of Africa Enterprise .