Beyond Boko Haram: Exploring the Crisis of Definition in Nigeria’s Counter-Terrorism Legislations
“Let
it be told to the future world, that in the depth of winter, when nothing but hope
and virtue could survive, that the city and country, alarmed at one common
danger, came forth to meet and to repulse it” Thomas Paine, December 23, 1776
it be told to the future world, that in the depth of winter, when nothing but hope
and virtue could survive, that the city and country, alarmed at one common
danger, came forth to meet and to repulse it” Thomas Paine, December 23, 1776
“Above
the gate of hell is the warning that all that enter should abandon hope. Less
dire but to the same effect is the warning given to those who try to define terrorism”
the gate of hell is the warning that all that enter should abandon hope. Less
dire but to the same effect is the warning given to those who try to define terrorism”
-David Tucker, Skirmishes at the Edge of
Empire: The United States and International Terrorism 1997
Empire: The United States and International Terrorism 1997
INTRODUCTION
Starting from 9/11, terrorism evolved to
new levels of savagery unheard of in history. The magnitudes of the acts (9/11)
went beyond terrorism as was
new levels of savagery unheard of in history. The magnitudes of the acts (9/11)
went beyond terrorism as was
known, and statements from various capitals
around the world pointed to a need to develop new strategies to confront a new
reality (Maogoto, 2003).
around the world pointed to a need to develop new strategies to confront a new
reality (Maogoto, 2003).
Groups long contented with hijacking planes
became emboldened to launch multiple attacks at world capitals and major cities.
These attacks succeeded in in banding States together in what is now known as
the global war on terror.
became emboldened to launch multiple attacks at world capitals and major cities.
These attacks succeeded in in banding States together in what is now known as
the global war on terror.
Within eight years of 9/11, the world
witnessed the birth of Jama’atu Ahlis
witnessed the birth of Jama’atu Ahlis
Sunnah Lidd awatiwal Jihad (Popularly known
as Boko haram). Nigeria, long respected as a regional power, especially in ensuring
peace and stability in West Africa was ensnared in a vicious circle of violence.
At the height of its infernal reign, boko haram was able to project power
beyond its base in Sambisa forest, even into Nigeria’s capital. Despite being a
signatory to several counter-terrorism Conventions, Nigeria was legally
ill-equipped to confront terrorism. It took the country almost two years after
the first boko haram attack to enact a national legislation to punish acts of
terrorism.
as Boko haram). Nigeria, long respected as a regional power, especially in ensuring
peace and stability in West Africa was ensnared in a vicious circle of violence.
At the height of its infernal reign, boko haram was able to project power
beyond its base in Sambisa forest, even into Nigeria’s capital. Despite being a
signatory to several counter-terrorism Conventions, Nigeria was legally
ill-equipped to confront terrorism. It took the country almost two years after
the first boko haram attack to enact a national legislation to punish acts of
terrorism.
The question, what is terrorism is perhaps
as old as the first terror attack. This paper explores this question,
particularly, within the Nigerian legal framework. Understanding what
constitutes terrorism is the first step in the war against terror, as it will
be futile in fighting what we don’t understand. It is our argument that the
definition of terrorism within the Nigerian legal framework leaves much to be
desired. It is our submission that there is need for a total overhaul of the
prevailing legal framework on terrorism in Nigeria.
as old as the first terror attack. This paper explores this question,
particularly, within the Nigerian legal framework. Understanding what
constitutes terrorism is the first step in the war against terror, as it will
be futile in fighting what we don’t understand. It is our argument that the
definition of terrorism within the Nigerian legal framework leaves much to be
desired. It is our submission that there is need for a total overhaul of the
prevailing legal framework on terrorism in Nigeria.
THE CRISIS OF DEFINITION: WHAT IS TERRORISM
Growing interest in the field of terrorism
and increased funding allotted to
and increased funding allotted to
academic research and teachings budgets
post 9/11 has spurred and supported the publication of hundreds of books and
articles in the past few
post 9/11 has spurred and supported the publication of hundreds of books and
articles in the past few
years, many professional and academic
conferences and a general flourishing of the field (Ganor, 2009). Despite the
growth of interests in terrorism, a universally acceptable definition of terrorism
continues to elude the international community. The unanimity of States in the
fight against terrorism has not been rewarded with unanimity of definition.
conferences and a general flourishing of the field (Ganor, 2009). Despite the
growth of interests in terrorism, a universally acceptable definition of terrorism
continues to elude the international community. The unanimity of States in the
fight against terrorism has not been rewarded with unanimity of definition.
The absence of a consensus definition has
precipitated what we refer to as ‘the crisis of definition’. Attempts by the
international community to define
precipitated what we refer to as ‘the crisis of definition’. Attempts by the
international community to define
terrorism can be traced to the League of
Nations’ 1938 Convention for the
Nations’ 1938 Convention for the
Prevention and punishment of Terrorism.
Adopting a State-centric view, the CPPT defined terrorism as ‘criminal acts
directed against a state and intended or calculated to create a state of terror
in the minds of particular persons, or group of persons or the general public
(CPPT, 1938).
Adopting a State-centric view, the CPPT defined terrorism as ‘criminal acts
directed against a state and intended or calculated to create a state of terror
in the minds of particular persons, or group of persons or the general public
(CPPT, 1938).
Schmid and Jongman define terrorism as “an
anxiety-inspiring method of
anxiety-inspiring method of
repeated violent action, employed by
(semi-) clandestine individual, group or state actors, for idiosyncratic,
criminal or political reasons, whereby in contrast to assassinations, the
direct targets of violence are not the main target” (Schmid & Jongman,
1988).
(semi-) clandestine individual, group or state actors, for idiosyncratic,
criminal or political reasons, whereby in contrast to assassinations, the
direct targets of violence are not the main target” (Schmid & Jongman,
1988).
The United Nations General Assembly in a
1994 resolution opted to describe what terrorism is rather than offer a definition.
The Resolution described terrorism as “criminal acts intended or calculated to
provoke a state of terror in the public, a group or persons or particular persons
for political purposes”( A/RES/49/60). The definition by the General Assembly
is limited when compared to the definition offered by the UN Security Council,
which sees terrorism as “ criminal acts, including against civilians, committed
with the intent to cause death or serious bodily injury or taking of hostages,
with the purpose to provoke a state of terror in the general public, or in a
group of persons or particular persons, intimidate a population or compel a
government or an international organization to do or to abstain from doing an
act (UNSCS/RES/1566R ) .
1994 resolution opted to describe what terrorism is rather than offer a definition.
The Resolution described terrorism as “criminal acts intended or calculated to
provoke a state of terror in the public, a group or persons or particular persons
for political purposes”( A/RES/49/60). The definition by the General Assembly
is limited when compared to the definition offered by the UN Security Council,
which sees terrorism as “ criminal acts, including against civilians, committed
with the intent to cause death or serious bodily injury or taking of hostages,
with the purpose to provoke a state of terror in the general public, or in a
group of persons or particular persons, intimidate a population or compel a
government or an international organization to do or to abstain from doing an
act (UNSCS/RES/1566R ) .
The definition by the Security Council
eliminates the controversial elements of political or religious motivations.
This definition mirrors the position contained in the Arab League Convention
for the Suppression of Terrorism 1998. The Convention defines terrorism as “any
act of violence, whatever its motives or purposes, that occurs in advancement
of an individual or collective criminal agenda and seeking to sow panic among people,
causing fear by harming them, or placing their lives, liberty or security in
danger or seeking to cause damage to the environment, or to public or private
installations or property or to occupy or seizing them, or seeking to jeopardize
national resources”. Evolving variants of terrorism like cyber terrorism which
is devoid of violence continue to exacerbate the crisis of definition. The
availability of conflicting and competing standards further widens the rift,
thereby ensuring that attempts at advancing a consensus definition in the
nearest future remains impossible.
eliminates the controversial elements of political or religious motivations.
This definition mirrors the position contained in the Arab League Convention
for the Suppression of Terrorism 1998. The Convention defines terrorism as “any
act of violence, whatever its motives or purposes, that occurs in advancement
of an individual or collective criminal agenda and seeking to sow panic among people,
causing fear by harming them, or placing their lives, liberty or security in
danger or seeking to cause damage to the environment, or to public or private
installations or property or to occupy or seizing them, or seeking to jeopardize
national resources”. Evolving variants of terrorism like cyber terrorism which
is devoid of violence continue to exacerbate the crisis of definition. The
availability of conflicting and competing standards further widens the rift,
thereby ensuring that attempts at advancing a consensus definition in the
nearest future remains impossible.
Definition of Terrorism within the Nigerian
Legal System
Legal System
The legal framework for the suppression of
terrorism in Nigeria is essentially codified in two enactments: The Terrorism
(Prevention) Act 2011 (hereinafter TPA, 2011) and the Terrorism (Prevention)
(Amendment) 2013 (hereinafter TPA 2013). As the dreaded boko haram fanned out
from its hideouts, annexing territories in Nigeria and boldly declaring war,
policy makers in Abuja found themselves at wits end on how to stem the
dangerous tide. Having been spared the wrath of mainstream terrorism since
independence, the country had no legal framework to combat the boko haram
menace. The military offensive against the sect created a legal problem for
Nigeria. Under what laws were captured members of boko haram to be tried?
Charging them under the Criminal Code Act would have produced an absurdity as
the group had already been designated as a terrorist group by the UN Security
Council and the United States. The TPA 2011 came to create the offence of terrorism
and a myriad of related offences. The Act in an unprecedented contains no
description or definition of terrorism. The act simply defines what it considers
as ‘acts of terrorism’ which for the purposes of this work will be taken as a
definition of terrorism. Section 1 (2) of the TPA, 2011 defines “act of
terrorism” (terrorism) as an act which is deliberately done with malice
aforethought and which: (a) may seriously harm or damage a country or an
international organization;
terrorism in Nigeria is essentially codified in two enactments: The Terrorism
(Prevention) Act 2011 (hereinafter TPA, 2011) and the Terrorism (Prevention)
(Amendment) 2013 (hereinafter TPA 2013). As the dreaded boko haram fanned out
from its hideouts, annexing territories in Nigeria and boldly declaring war,
policy makers in Abuja found themselves at wits end on how to stem the
dangerous tide. Having been spared the wrath of mainstream terrorism since
independence, the country had no legal framework to combat the boko haram
menace. The military offensive against the sect created a legal problem for
Nigeria. Under what laws were captured members of boko haram to be tried?
Charging them under the Criminal Code Act would have produced an absurdity as
the group had already been designated as a terrorist group by the UN Security
Council and the United States. The TPA 2011 came to create the offence of terrorism
and a myriad of related offences. The Act in an unprecedented contains no
description or definition of terrorism. The act simply defines what it considers
as ‘acts of terrorism’ which for the purposes of this work will be taken as a
definition of terrorism. Section 1 (2) of the TPA, 2011 defines “act of
terrorism” (terrorism) as an act which is deliberately done with malice
aforethought and which: (a) may seriously harm or damage a country or an
international organization;
(b) is intended or can reasonably be
regarded as having been intended
regarded as having been intended
to—
(i) unduly compel a government or
international organization to perform or abstain from performing any act;
international organization to perform or abstain from performing any act;
(ii) seriously intimidate a population;
(iii) seriously destabilize or destroy the
fundamental political, constitutional, economic or social structures of a
country or an international organization; or
fundamental political, constitutional, economic or social structures of a
country or an international organization; or
(iv) otherwise influence such government or
international organization by intimidation or coercion; and
international organization 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;
cause serious bodily harm or death;
(ii) kidnapping of a person;
(iii) destruction to a Government or public
facility, a transport system, an infrastructure facility, including an
information system, a fixed platform located on the continental shelf, a public
place or private property, likely to endanger human life or result in major
economic loss;
facility, a transport system, an infrastructure facility, including an
information system, a fixed platform located on the continental shelf, a public
place or private property, likely to endanger human life or result in major
economic loss;
(iv) the seizure of an aircraft, ship or
other means of public or goods transport and diversion or the use of such means
of transportation for any of the purposes in paragraph (b)(iv) of this
subsection.
other means of public or goods transport and diversion or the use of such means
of transportation for any of the purposes in paragraph (b)(iv) of this
subsection.
(v) the manufacture, possession,
acquisition, transport, supply or use of weapons, explosives or of nuclear, biological
or chemical weapons, as well as research into, and development of biological
and chemical weapons without lawful authority ;
acquisition, transport, supply or use of weapons, explosives or of nuclear, biological
or chemical weapons, as well as research into, and development of biological
and chemical weapons without lawful authority ;
(vi) the release of dangerous substance or
causing of fire, explosions or floods, the effect of which is to endanger human
life;
causing of fire, explosions or floods, the effect of which is to endanger human
life;
(vii) interference with or disruption of
the supply of water, power or any other fundamental natural resource, the
effect of which is to endanger human life ;
the supply of water, power or any other fundamental natural resource, the
effect of which is to endanger human life ;
(d) an act or omission in or outside
Nigeria which constitutes an office within the scope of a counter terrorism protocols
and conventions duly ratified by Nigeria.
Nigeria which constitutes an office within the scope of a counter terrorism protocols
and conventions duly ratified by Nigeria.
(1) An act which disrupts a service but is
committed in pursuance of a protest. However, demonstration or stoppage of work
is not a terrorist act within the meaning of this definition provided that the
act is not intended to result in any harm referred to in subsection (2) (b)(i),
(ii) or (iv) of this section.
committed in pursuance of a protest. However, demonstration or stoppage of work
is not a terrorist act within the meaning of this definition provided that the
act is not intended to result in any harm referred to in subsection (2) (b)(i),
(ii) or (iv) of this section.
The above definition extends to encompass
criminal conducts prohibited in other legislations. Hence the justified but one
–sided exclusive equation of boko haram with terrorism in Nigeria is at variance
with the TPA 2011.
criminal conducts prohibited in other legislations. Hence the justified but one
–sided exclusive equation of boko haram with terrorism in Nigeria is at variance
with the TPA 2011.
The Act does not entertain the
controversial religious or political motives
controversial religious or political motives
usually associated with terrorism. For
instance, the crime of hostage taking which is mostly motivated by financial considerations
is designated as an act of terror by the Act. By dispensing with religious and
political considerations, the TPA2011 seeks to avoid the controversial
profiling approach adopted by Western experts in their definition of terrorism.
The TPA 2011 subjects certain persons and groups whose agenda, tactics and
ideologies differ significantly from that of book haram to its jurisdiction. It
follows that the destruction of oil installations by Niger-Delta militants (who
also engage in hostage taking) constitutes an act of terrorism under the TPA 2011.
Either by seeking to compel the government to perform an act (pay amnesty
allowances) or abstain from performing any act (withdrawal of troops from the
Niger-Delta), militants have assumed the status of terrorist within under the
Act.
instance, the crime of hostage taking which is mostly motivated by financial considerations
is designated as an act of terror by the Act. By dispensing with religious and
political considerations, the TPA2011 seeks to avoid the controversial
profiling approach adopted by Western experts in their definition of terrorism.
The TPA 2011 subjects certain persons and groups whose agenda, tactics and
ideologies differ significantly from that of book haram to its jurisdiction. It
follows that the destruction of oil installations by Niger-Delta militants (who
also engage in hostage taking) constitutes an act of terrorism under the TPA 2011.
Either by seeking to compel the government to perform an act (pay amnesty
allowances) or abstain from performing any act (withdrawal of troops from the
Niger-Delta), militants have assumed the status of terrorist within under the
Act.
The above position is evidenced by
Nigeria’s refusal to adopt the international norm which embodies a distinction
between national liberation fighters (insurgents) and terrorists. TheTPA 2011
repudiates the age-long aphorism that one man’s terrorist is another man’s freedom
fighter by advancing the argument that line between terrorism and national
liberation is invisibly thin, if not non-existent. Flowing from this, we can safely
argue that members of the Indigenous People of Biafra (IPOB) and other active
separatist groups in Nigeria are engaged in acts of terrorism. The ultimate
goal of IPOB which is secession of Biafra would seriously destabilize or
destroy the fundamental political, constitutional, economic or social structures
of Nigeria, contrary to Section 1(2) (b) iii of the TPA, 2011.
Nigeria’s refusal to adopt the international norm which embodies a distinction
between national liberation fighters (insurgents) and terrorists. TheTPA 2011
repudiates the age-long aphorism that one man’s terrorist is another man’s freedom
fighter by advancing the argument that line between terrorism and national
liberation is invisibly thin, if not non-existent. Flowing from this, we can safely
argue that members of the Indigenous People of Biafra (IPOB) and other active
separatist groups in Nigeria are engaged in acts of terrorism. The ultimate
goal of IPOB which is secession of Biafra would seriously destabilize or
destroy the fundamental political, constitutional, economic or social structures
of Nigeria, contrary to Section 1(2) (b) iii of the TPA, 2011.
Nigeria’s approach to the crises of
definition [of terrorism] leaves much to be desired. If terrorism was a complex
phenomenon, the TPA’s definition of the term produced an even more twisted
dimension to it. Are we permitted to designate attacks by Fulani herdsmen in
Nigeria as acts of
definition [of terrorism] leaves much to be desired. If terrorism was a complex
phenomenon, the TPA’s definition of the term produced an even more twisted
dimension to it. Are we permitted to designate attacks by Fulani herdsmen in
Nigeria as acts of
terrorism? The answer will be in the
affirmative insofar as attacks by herdsmen intimidate a population and includes
attacks upon peoples’ lives which may cause serious bodily harm or death.
affirmative insofar as attacks by herdsmen intimidate a population and includes
attacks upon peoples’ lives which may cause serious bodily harm or death.
CONCLUSION
The TPAs, 2O11 and 2013 are far from
perfect. These legislations aptly represent the times in which they were enacted;
when the threat of boko haram had to be countered with everything and anything
(including hurriedly enacted counter-terrorism legislations) at Nigeria’s
disposal.
perfect. These legislations aptly represent the times in which they were enacted;
when the threat of boko haram had to be countered with everything and anything
(including hurriedly enacted counter-terrorism legislations) at Nigeria’s
disposal.
Though boko haram has been degraded, the
threat of terrorism is ever present. The war on terrorism should be waged with the
mindset of eternal vigilance. Overhauling the existing legal framework and
representing it with a comprehensive unified legislation would be a good place
to start. Such amendments should whittle down the definition of what
constitutes ‘acts of terrorism’. The present state of the TPAs, 2011, 2013
makes reading difficult. With numerous deletions, insertions and renumbering,
the Acts stand out as one of Nigeria’s most disjointed legislations.
threat of terrorism is ever present. The war on terrorism should be waged with the
mindset of eternal vigilance. Overhauling the existing legal framework and
representing it with a comprehensive unified legislation would be a good place
to start. Such amendments should whittle down the definition of what
constitutes ‘acts of terrorism’. The present state of the TPAs, 2011, 2013
makes reading difficult. With numerous deletions, insertions and renumbering,
the Acts stand out as one of Nigeria’s most disjointed legislations.
References
Convention for the Prevention and
Punishment of Terrorism
Punishment of Terrorism
(1938) 19 League of Journal Official Manual
23 (not in force).
23 (not in force).
Schmid, Jongman et al. Political terrorism:
a new guide to actors,
a new guide to actors,
authors, concepts, data bases, theories,
and literature.
and literature.
Amsterdam: North Holland, Transaction
Books, 1988.
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Ganor Boaz (2009) Trends in Modern
International Terrorism,
International Terrorism,
in D. Weisburd et al. (eds.), To Protect
and To Serve: Policing in
and To Serve: Policing in
an Age of Terrorism, Springer New York.
Maogoto Jackson, (2003) War on the Enemy:
Self-Defence and State- Sponsored
Self-Defence and State- Sponsored
Terrorism. 4 Melbourne Journal of
International Law
International Law
United Nations General Assembly Declaration
on Measures to
on Measures to
Eliminate International Terrorism (1994) ,
49/
49/
United Nations Security Council resolution
1566 (2004)
1566 (2004)
By: –
Uduak
Nsungwara
Nsungwara
awittyud@yahoo.com
Anemuyem Akpan
aloyanem@gmail.com
www.linkedin.com/in/anemuyem-akpan-71b922120
Photo Credit – www.naij.com
