PROSCRIPTION ORDER UNDER THE TERRORISM PREVENTION ACT, 2013: ARE “TERRORISTS” EXCLUDED FROM FAIR HEARING RIGHT UNDER THE NIGERIAN LAWS? BY: Johnmary Chukwukasi Jideobi

EXORDIUM:

The emergence of insurgency and terrorism on the geographical landscape of the Nigerian Nation has yielded an avalanche of hitherto non-existent vocabulary in the country’s criminal and human rights law jurisprudence. While the mindless erosion of fundamental rights of citizens signposts the operation of insurgents and terrorists, the various approaches adopted for curtailing and or ending the startling impunity of these daredevil elements by state-actors have provoked wide-ranging intellectual debates principally orbiting around the elasticity and contours of the fundamental rights embedded in Chapter Four of the amended 1999 Constitution of the Federal Republic of Nigeria [henceforth in this enquiry called the Constitution]. To squire up with the confounding daredevilry of the insurgents/terrorists, the National Assembly enacted into law the Terrorism Prevention Act, 2010 [henceforth referred to as the TPA in this discuss] which was subsequently amended in 2013. The TPA, among other provisions, made far-reaching provisions especially on the issues of hot pursuit, arrest, detention, proscription and prosecution of terrorist suspects. Section 2 of the TPA outlines the procedures for the proscription of a group as a terrorist outfit with pervasive legal consequences on the members of the proscribed group and their affiliates that transcends the territorial boundary of Nigeria. Following the recent proscription of the Indigenous People of Biafra [called the IPOB henceforth in this article] as a terrorist group by the Federal High Court of Nigeria, the proscription order has expectedly ignited divergent reactions from notable legal minds in the country especially as to the propriety or otherwise of the perceived permanent nature of the Court’s Order [even though ex-parte] which appears to have drowned the constitutional right to fair hearing of the IPOB as consecrated in Section 36 (1) of the Constitution. The present academic enquiry is targeted at interrogating the constitutional validity of both the order proscribing the IPOB and its legislative ancestry [the TPA] from which the order flowed. Implicit in this first basis of this enquiry is the second that seeks to determine to what extent the Nigerian State is bound by the indubitable constitutional prescriptions as to human rights adherence when confronted with terrorism related matters. Before proceeding into the crux of this engagement, it is not out of place to preface our discussion with a survey of the factual antecedents that congregated in yielding the ensuing extrapolations.

FACTUAL BACKGROUND:

On the 20^th day of September, 2017, in a suit marked FHC/ABJ/CS/871/2017: Attorney-General of the Federation vs. Indigenous People of Biafra [IPOB], the Federal High Court of Nigeria, per Kafarati, Ag. C.J., while proscribing the IPOB, declared, inter alia, as follows:

AN ORDER of this Honourable Court proscribing the existence the Respondent [The Indigenous People of Biafra] in any part of Nigeria, especially in the South-East and South-South Regions of Nigeria, either in groups or as individuals by whatever names they are called and publishing same in the official gazette and two (2) National Dailies.

AN ORDER restraining any person or group of persons from participating in any manner whatsoever in any form of activities involving or concerning the prosecution of the collective intention or otherwise of the Respondent [Indigenous People of Biafra] under any other name or platform however called or described is granted.

In proceeding to examine the thrust of the issues in controversy, we make haste to state that the scope of the present enquiry is not commodious enough as to accommodate [within its canopied ambience] the politically besmirched question of whether or not the cumulative of the activities of the IPOB actually warranted the designation of the group as a terrorist group. In other words, the proximate impulsion of this exercise is not the determination of the question whether or not the Honourable Attorney-General of the Federation ought to have activated the provisions of Section 2 of the TPA against the IPOB but the constitutional validity, vel non, of the said provision and the consequential proscription order flowing therefrom.

THE THRUST:

The entirety of our investigation springs forth from and zeros in on Section 2 of the TPA. That is the cynosure of this enterprise. It is the opening line and the bottom line. This being so, we therefore move to begin from the beginning by recasting this all-important Section 2 of the TPA:

2.  Where two or more persons associate for the purpose of or where an organization engages in—

(a)     Participating or collaborating in an act of terrorism;

(b)     promoting, encouraging or exhorting others to commit an act of terrorism; or

(c)     setting up or pursuing acts of terrorism, the judge in Chambers may on an application made by the Attorney General, 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 official gazette.

(2)     An order made under sub-section (1) of this section shall be published in the official gazette, in two National newspapers and at such other places as the judge in Chambers may determine.

Section 2 of the TPA has five (5) subsections. Subsections (1) and (2) thereof adequately circumscribe the object of our enquiry and we shall limit ourselves to them.

ANALYSIS:

From the above provisions, three important issues have crystalized for our consideration and they are as follows;

(a)    The decision to bring an application before the Court based on whether or not an organization is participating or collaborating in an act of terrorism, promoting, encouraging or exhorting others to commit an act of terrorism; or     setting up or pursuing acts of terrorism lies with either the Honourable Attorney-General of the Federation, the National Security Adviser or the Inspector-General of Police.

(b)   The application to be made to the Court by any of the potential applicants must be preceded by the approval of the President.

(c)    In Chambers, the Judge before whom the application is brought may declare any entity to be a proscribed organization.

For good reasons, it is to be noted that the above provision of the TPA has been activated by the Federal Government of Nigeria only on two different occasions since the TPA was midwifed by the National Assembly. The first instance was against the members of the Boko Haram sect operating in the North-Eastern part of Nigeria while the second occasion was in September, 2017 against the IPOB operating mainly in the South-Eastern part of Nigeria. It is to be admitted here that the protestations that greeted the proscription of the IPOB was never witnessed when Boko Haram was proscribed. To make the point clearer, unlike the Boko Haram, the IPOB is now back in court challenging the proscription order of the Court which they seek to have the Court set aside upon the twin principal grounds, among others, of the IPOB allegedly not being a juristic person and the purported suppression of facts by the Federal Government of Nigeria which misled the Court into issuing the proscription Order. We shall now clinically examine the issues on their individual merit.

THE JURISPRUDENCE OF EX-PARTE ORDER:

That the Honourable Attorney-General of the Federation initiated the two proscription applications ex-parte [without putting the defendant(s) on notice] seems to have been dictated by the tenor of the TPA itself which stipulates that such application be taken by “the Judge in Chambers”. From practice experience, whenever the Rules of any Court demands that an application is to be taken by “the Judge in Chambers”, most likely that application is one made ex-parte as the other party would not be put on notice. Allport v. Securities Corporation (1895) 64 L.J. CH 491. All orders of the Court given in consequence of an ex-parte application are ex-parte orders. Beecham Croup Ltd. v. Bristol Laboratories Pty Ltd. 118 C.L. R. 61X, 623. More importantly, ex-parte orders have limited life span and cannot operate in perpetuity. Re Johnson ex parte Abrams (18X4) 50 LT184. An order is said to be ex parte when it is granted by a judge at the request of and for the benefit of one party only, without notice to or contestation by the other party. Beese v. Woodhouse (1970) 1 A.E.R. 769 at 773. Etymologically, ex parte is a Latin adjective meaning "for one party," referring to motions, hearings or orders granted on the request of and for the benefit of one party only. This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge, and to the otherwise strict rule that an attorney may not notify a judge without previously notifying the opposition. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing or an emergency request for a continuance. [See http://dictionary.law.com/Default.aspx?selected=696]. Ex parte order is made for a short duration and in making it the court should exercise great care in not granting the applicant a favour that would turn out to be a great injustice to the respondent, Global Medical Care (UK) Ltd. & Ors. v. Medicair (west africa) Ltd. & Anor. (1997) LPELR-6296(CA); G.M.C. (UK) Ltd. v. Medicair WA Ltd. (1998) 2 NWLR (Pt.536). No wonder most Rules of Court provide that the ex-parte order abates after fourteen (14) days of making the order. In this connection, Order 26 Rule 12 (1) and (2) of the Federal High Court (Civil Procedure) Rules, 2009 provides as follows:

(1) No order made on motion ex parte shall last for more than fourteen days after the party or person affected by the order has applied for the order to be varied or discharged or last for another fourteen days after application to vary or discharge it has been argued.

(2) If a motion to vary or discharge an exparte order is not taken within fourteen days of its being filed, the exparte order shall lapse.

The jurisprudential foundation for the entertainment of ex-parte applications and grant of ex-parte orders [which is an extraordinary jurisdiction being exercised] by the Courts appear to have been laid by Lord Griffith C.J. [in Thomas Edison Ltd. v. Bullock (1912) 15 C.L.R. 679, at p. 68I] as appeared in this effulgent passage of venerable antiquity:

“There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur where justice could not be done unless the subject-matter of the suit were preserved, and if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the court, and ask for interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action.”

There is a striking convergence of juristic views tending to support the inflexible prescription of the law that ex-parte orders should be most sparingly made against the backdrop of the avalanche of abuses which this extra-ordinary jurisdiction of the Courts have been subjected to by both lawyers and Judges. Leading the pack in warning against the dangers inherent in ex-parte order is the Nigerian Supreme Court. In Kotoye v C.B.N. (1989) 1 NWLR (Pt. 98) 419 at 450, Nnaemeka Agu, J.S.C. stated as follows on the dangers of ex-parte orders;

"Above all, this Court ought to take notice of the numerous cases of abuse of ex-parte injunctions that have come up in recent times. The operation of a bank has been halted on an ex parte order of injunction, granted to a person who had been removed as a director of the bank. Installation ceremonies of chiefs have been halted in the same way even though the dispute had been dragging on for years. The convocation ceremony of University has been halted on an ex parte application by two students who failed their examinations. As the courts cannot prevent such applicants from exercising their constitutional rights by stopping such applications, they can, and ought at least see that justice is done to the victims of such ex parte applications and orders by ensuring that the applicant fully undertakes to pay any damages that may be occasioned by any such order which may turn frivolous or improper in the end."

In that same judgment, Karibi-Whyte, J.S.C. said at page 465:

“Although an ex parte application for injunction can be made, the court may refuse to make the order sought where the interest of justice demands that the other party to be affected ought to be put on notice, or it will be contrary to the general provisions of the law or inconsistent with the interest of justice."

Uwaifo, J.C.A. in Okechukwu v. Okechukwu (1989) 3 NWLR (Pt. 108) 234, in berating the abuse of ex-parte Orders by lawyers and Judges had this to teach us:

“It is most disturbing that the use of ex-parte injunction by some judges cannot be supported in any measure either on the applicable principles or on the facts. They do not seem to advert to the need for caution in the exercise of that extraordinary jurisdiction. They appear to give impression that the discretion is so personal that it does not matter if others see it as a means of inflicting undeserved punishment and hardship on another party or other persons. It has again become necessary to issue a reminder that even where everything points favourably to the granting of an ex-parte injunction, there is always this need to make its life very short, and indeed for an undertaking by the person who obtains it” See also Fenner v. Walson (1893) & Ch. 656.

Expressing his utter displeasure over the same issue, Ubaezonu, J.C.A. also articulated the same view in Okafor v. Onedibe (2003) 9 NWLR (Pt. 825) at 415, where he said:

“The reason for frowning on ex-parte order by this court is clear. There is no justice in making an order behind a party when no papers for such an order are served on him. Such orders make the court look small. They must be avoided”.

In a tone of finality, the Court of Appeal in the case of Asogwa v. Abel Chukwu (2003) 4 NWLR (Pt. 811) 540 intoned as follows:

“A practice which has acquired the force of law is that orders of ex-parte injunctions should be discouraged”.

The Nigerian Courts, like other commonwealth Courts which apply equitable remedies in cases brought before them, have admirably warehoused a robust corpus of what may be termed "the jurisprudence of ex-parte order."

What emerges from our intimate reading and understanding of all binding authorities on the point is the ineluctable view that ex-parte orders [such as the proscription Order under the TPA] pose a dangerous threat to the fair hearing right trenchantly consecrated by Section 36(1) of the amended 1999 Constitution of the Federal Republic of Nigeria [henceforth in this article called the Constitution] which is the fons et origo [the source and origin] of all our laws. The inexorable question germinating from this extrapolation is whether Section 2 of the TPA is not in conflict with the combined provisions of Sections 36(1) and 1 (1) & (3) of the Constitution hence invalid?. 

FAIR HEARING RIGHT:

To turn the full circle, it has become necessary to remind us that Section 36(1) of the Constitution consecrates the irrefragable right to fair hearing in this lucid language;

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

THE PURPORT:

Barrels of ink have flowed from the highest Bench in Nigeria in giving life to this sacrosanct provision. Akinfe v. The State (1988) 3 NWLR (pt. 85) 729; There is no doubt that Section 36(1) encapsulates the twin pillars of natural justice which, in the Latin heydays of the law, are expressed as: nemo judex in causa sua [no man should be a Judge in his own cause] and audi alteram partem [please hear the other party]. Audu v FRN (2013) LPELR -19897 (SC) 13. More importantly, the wisdom of our courts has insisted that this particular provision must be expansively interpreted, Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt. 622) 290, 333; Adebisi v State (2014) LPELR -22694 (SC) 40; A-C. Per Nweze, J.S.C. (P. 24, Paras. A-C). Under no circumstance shall this right be denied a party for when the inviolate principles ingrained therein are departed from, ‘justice is but a hoax’, Emeka vs. Okoroafor [2017] 11 N.W.L.R. (Pt. 1577) S.C. 410, per Eko, J.S.C. Emphasizing the ubiquity of this fair hearing right, the ebullient Nweze, J.S.C., in Kanu v. State (2017) LPELR-42101(SC) made this charming revelation:

Instructively, this Court in cases too numerous to be cited here, has endeavoured to "give to individuals the full measure of the fundamental rights and freedoms referred to." In particular, its attitude to the fair hearing provisions has been to seek after the highest possible ideal of justice and fairness.

Little wonder then that the law has long taken the undisturbed view that once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court become a nullity. Yusuf v State (2011) 18 NWLR (Pt. 1279) 853 at 870; Effiom v State (1995) 1 NWLR (pt 373) 507; Madu v State (1997) 1 NWLR (Pt. 482) 386. In ONUWA KALU v. THE STATE (2017) LPELR-42101(SC), Nweze J.S.C. gave a far-reaching insight into the entire purport of Section 36(1). For its beneficial impact on the fortune of our discussion, we take the liberty of this exercise to quote his leading judgment in extensor;

This, unarguably was the context that yielded this Court's opinion in Kim v State (1992) LPELR -1691 (SC) 11-12; F-E that: Human rights in our written Constitution mark a standard of behavior which we share with all civilized countries of the word. Since the United Nations Universal Declaration of Human Rights in 1948, though it is still left for various member nations to determine which rights from the plethora of rights then declared they would wish to incorporate into their domestic laws, once incorporated, their application lose the character of insular isolationism. Rather they assume a universal character in their standard of interpretation and application. One of those universal characters of their breach is that, in case of a right to fair hearing, once it is duly established that it has been breached in a judicial proceeding, it vitiates the proceeding. If therefore, I find that it was breached in this case, I shall have no alternative but to allow the appeal. See- Michael Uda Udo v. The State (1988) 3 NWLR (Pt. 82) 316; Galas Hired v. The King (1944) A.C. 149; Dixon Gokpa v. IGP (1961) All NLR 423; R v. Mary Kingston 32 C. App. R. 183; and Godwin Josiah v. The State (1985) 1 NWLR (pt 1) (sic). And fair hearing in this respect compendiates not only compliance with the two rules of natural justice - audi alteram partem and nemo judex in Causa sua. It entails complying with all the provisions of that section of the Constitution. It also entails doing, during the course of the trial, all things which will make an impartial observer leaving the Court room to believe that the trial has been balanced and fair to both sides to the trial. From its tenor, therefore, the Court is required to conduct the trial or hearing of a case with all fairness to both parties to the suit and without bias or partiality in favour of, or against either party. That is the rationale for the prescription that a complaint of breach of fair hearing is usually against the Court or Tribunal, whether the parties before the Court were afforded equal opportunity to fully ventilate their grievance. Okanlawon v State (2015) LPELR-24838 (SC) 52-53; E-B; Peters Pam and Anor v Mohammed and Anor (2008) 5-6 SC (pt.1) 83; Deduwa v Okorodudu (1976) NMLR 236, 246; 9-10 SC 329. Such is its primacy in our administration of justice that no decision can be regarded as valid unless the trial Judge or Court has heard both sides in the conflict. State v Onagoruwa (1992) LPELR -3228 (SC) 33; D-E; Deduwa v. Okorodudu (supra). This test of fair hearing applies once a trial has commenced, after issue has been joined, State v Onagoruwa (supra); nay more, it applies from the beginning to the end of the trial. Oyewole v Akande and Anor (2009) LPELR- 2879 (SC) 36-37; Deduwa v. Okorodudu (1976) 9 -10 SC 329; News Watch Comm. Ltd. v. Attah (2006) 12 NWLR (pt 993) 144; A. G Rivers State v. Ude (2006) 17 NWLR (pt 1008) 436. It is this logic that yielded the reasoning in the decisions of this Court: decisions which are remarkable for their unanimity on the point that it [that is, fair hearing] imposes an ambidextrous standard of justice in which the Court must be fair to both sides of the forensic conflict. Ndu v. The State [1990] 7 NWLR (pt.164) 550, 578; Ekpeto v Wanogho [2005] All FWLR (pt 245) 1191, 1203; Amamchukwu v FRN [2009] All FWLR (pt 465) 1672, 1679. It therefore does not anticipate a standard of justice which is biased in favour of one party but prejudices the other. Ekpeto v Wanogho (supra). Above all, it is not a technical doctrine, but one of substance, Ogundoyin v. Adeyemi [2001] 33 WRN 1, 14 -15; Kotoye v C.B.N (1989) 1 NWLR (Pt. 89) 418, 448. The touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on a party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard. J.C.C. Inter Ltd. v. N.G.I. Ltd. (2002) 4 WRN 91, 104; Amamchukwu v. FRN (2009) LPELR -455 (SC) 11-12. It is thus outrageous to deny a party an opportunity of hearing, Onyeneh v. Egbuchula (1996) 5 NWLR (pt. 448) 255, 265, Gyang and Anor v COP, Lagos State and Ors (2013) LPELR -21893 (SC) 12- 13; A.R v. Electricity Joint Commission (1968) NMLR 102; Adeyemi v. A.G. Federation [1984] 1 SCNLR 525.”

I entirely agree. Indeed, one could not have done better in this enchanting array of juristic expatiation.

SUMMATION:

The agglomeration of all the analysis so far advanced, festooned with entrancing galaxy of judicial authorities, affords us with the jurisprudential beacons in arriving at the inevitable conclusion that the Proscription Order of the Federal High Court sanctioned under Section 2 of the TPA bears many dead wounds on its face, Ogundoyin v. Adeyemi [2001] 33 WRN 1, 14 -15 just as the Section 2 of the TPA from which the order flows is equally standing on a wobbly wicket, Onyeneh v. Egbuchula (1996) 5 NWLR (pt. 448) 255. This is because, within the wide domain of the law on fair hearing, Courts of law are without powers to make ex-parte order with a tenor of perpetuity as if eventuating from the merit of the case. Kotoye v C.B.N (1989) 1 NWLR (Pt. 89) 418, 448. Such a strange order is redolent with raw injustice, State v Onagoruwa (1992) LPELR -3228 (SC) 33 and does not resonate with the peremptory dictates of natural justice, Galas Hired v. The King (1944) A.C. 149. This can only be so since the weight of all existing authorities, Bakare v L.S.C.C. (1992) 8 NWLR (pt.266) 641, lean heavily against the making of such order, Ekunola v CBN (2013) 15 NWLR (pt. 1377) 224. Mention must be made at this juncture that the tirade of this discussion is neither directed at the person of the Judge who made the proscription order nor at the Honourable Attorney-General of the Federation [AGF] who set the law in motion ab initio. This is because, the presiding Judge merely gave effect to the law [the TPA] as invoked and presented to him by the AGF. After all, the TPA is an existing law which a Judge is bound to enforce until successfully challenged and set aside. In this regard, the dictum of the Supreme Court in Federal Republic of Nigeria v Alhaji Mika Anache & Others (2004) 14 WRN 1-90 61 comes to mind. Therein, Tobi, J.S.C. [beatae memoria] forcefully stated thus;

An academic or scholarly criticism of the greatest learning of an existing law does not wipe out the existing law. And the courts are bound to interpret the existing law and not a critique of it

What is more, the Supreme Court itself has conceded the right of interrogating its pronouncements in legal write-ups to scholars as affirmed by Nweze, J.S.C. in Emeka vs. Okoroafor [supra]. Listen to this:

Scholars, undoubtedly, relishing their liberty under the well-cherished canon of academic freedom, have the right to interrogate any judicial pronouncement. Interestingly, this Court has responded, constructively, to such criticisms of its judgments in law journals. For example, in Abioye v Yakubu (1991) 5 NWLR (pt ) 130, this Court acknowledged that:

"[a]academic writers in various Law Journals have criticized the approach of the Courts in the interpretations of statutes]

What we have just done is to interrogate the proscription order of the Federal High Court under the TPA and the constitutional validity, vel non, of the Section 2 of the TPA itself.

END:

Certainly, it is now clear that the National Assembly, in enacting the impugned Section 2 of the TPA exceeded its legislative competence by attempting to denude the sacred fair hearing right enshrined in Section 36(1) of the Constitution which admits of no derogation.  They have no constitutional warrant for such legislative aberration, Musa vs. INEC (2003) 3 NWLR (Pt.806)72. 2, (2003) 1 S.C (Pt.I) 106. Terrorism is a grave offence in every civilised clime. Being labeled a “Terrorist” presupposes that you have been tried and found guilty of the offence of terrorism by a court of competent jurisdiction. The National Assembly [nay the TPA] goofed by attempting to proclaim any person or group of persons “terrorist” or “terrorist group” by an ex-parte order without a proper criminal trial thereby sidestepping that time-hallowed process of determination of the guilt or innocence of a criminal suspect sanctioned by the Constitution itself. The TPA punched above its weight. No doubt, it is a constitutional taboo, if not a legislative apostasy, that its victims [such as the IPOB] ought to put squarely before the Court for even a state organ [such as the National Assembly] is without powers to bludgeon the fundamental rights of citizens, F.R.N. vs. Ifegwu (2003) 15 NWLR (Pt. 842) 113 at 185.

Challenging squarely the constitutionality of the Section 2 of the TPA will serve a broader cause and assure composite justice for all persons bound by the amended 1999 Constitution of the Federal Republic of Nigeria. Indeed, nobody is excluded from the beneficial right to fair hearing guaranteed by the laws of our land. I find here a convenient place to stop.

Johnmary Chukwukasi Jideobi.

Legal Practitioner, Managing Partner at Gold Standard Attorneys and Co-Founder, Justice Without Borders Network. You can reach him on: 08131131942 OR [email protected].