Nigerian Army Aiding Terrorism: Pardoning Boko-Haram Fighters Has No Legal Basis

By Festus Ogun

In the face of the ongoing war against terrorism and banditry,
the Nigerian authorities have recurrently pardoned and released
Boko-Haram fighters and bandits. Under the guise of repentance,
negotiation, surrender, rehabilitation and deradicalization, the
authorities have released Boko-Haram militants and bandits at
different times. Not too long ago, the National Assembly was toying
with the idea of creating an agency for the rehabilitation of
repentant Boko-Haram members. For a terror group that has “left
more than 35,000 people dead and uprooted more than two million”,
the indiscriminate release of terrorists calls for deep caution,
concern and worry. Pardoning or releasing Boko-Haram suspects is
not supported by any law in Nigeria.

To start with, Nigeria is a country that operates a
constitutional democracy. We have laws and rules that must be
obeyed by the low and mighty. Section 1(1) of the 1999 Constitution
lucidly provides that the Constitution is supreme and its
provisions shall have binding force on all authorities and persons.
Consequently, there shall be no room for abuse of law and executive
recklessness. So long as the 1999 Constitution remains the
grundnorm, the rule of law and the doctrine of constitutionalism
must be respected and glorified in Nigeria.

Releasing and pardoning Boko-Haram fighters or members of any
terrorist organization whatsoever is unknown to the Nigerian law.
It is neither recognized nor supported by any living law in
Nigeria. As a constitutional lawyer, I have thoroughly read through
the provisions of the Armed Forces Act, the Terrorism (Prevention)
(Amendment) Act, the Administration of Criminal Justice Act and
other relevant laws; in futile search for a legal framework that
supports the pardoning of Boko-Haram fighters. It appears that the
authorities have only been discretionally setting free those who
ordinarily should be facing charges relating to terrorism and other
war crimes.

The war against terrorism is not one that can be won through
whimsical policies that are against the spirits of our laws. We
must understand that the Armed Forces, by their very nature, are a
creation of law and cannot continue to act as though they are above
the law. Terrorism is a serious crime which should not be treated
outside the fences of law. Terrorists are to be treated and dealt
with in accordance with the law. There ought to be no room for
arbitrariness.

How did the government of the day come to the conclusion that
they are repentant ‘terrorists’ when they are yet to be tried and
pronounced guilty of terrorism related crimes by our courts? The
Nigerian Army is not a court of law to determine the guilt of
suspected terrorists. Only the court is empowered to reverse the
presumption of innocence enjoyed by suspects under Section 36(5) of
the 1999 Constitution. When suspects have not been tried and
convicted, how come they are described as repentant Boko-Haram
members considering the fact that anyone accused of any offence
whatsoever is presumed innocent until the court holds otherwise?
Can a presumed innocent person be pardoned? These are legal posers
that are weeping profusely for sincere answers.

Fair trial is sacrosanct in determining the guilt of those
caught within the net of war crimes. The Nigerian Army can only
rehabilitate and reintegrate Boko-Haram fighters either after the
convicts have served their jail terms or after the grant of
presidential pardon. Only convicted persons can be properly called
Boko-Haram fighters. Legally speaking, you cannot forgive or pardon
a presumed innocent person. Our laws in Nigeria do not recognize
pardoning suspected criminals who are yet to face the fire of
trial. In fact, state pardon can only come after an accused person
has been convicted and sentenced accordingly. Instructively, only
the President or a Governor can exercise the power to grant
executive pardon or clemency to convicted criminals. The military
establishment cannot exercise such power. Therefore, to free
Boko-Haram suspects, without trial and outside the scope of law, is
to aid the activities of the bloody terrorists holding the peace of
our great country to ransom.

Can the Nigerian Army release Boko-Haram fighters? The simple
answer is a resounding NO. What the Army is doing is completely
alien to our criminal jurisprudence. The Army lacks the power,
right and authority to pardon or release any captured terrorists,
under any guise whatsoever. They, in fact, do not have
prosecutorial powers over terrorists or terrorism related offences.
The Terrorism Act, 2011 provides that the office of the
Attorney-General of the Federation shall prosecute offences
established under the law. Those arrested or captured by the Army
should be handed over to the office of the Attorney General for
diligent prosecution.

Given that the law is a means to an end, those suspected to have
committed crimes ought to be prosecuted in the interest of social
justice and not arbitrarily freed. Those who understand the
philosophy of justice would agree that freeing Boko-Haram fighters
without lawful justification is counter-productive, evil and
inimical to the ongoing war against terror. Oputa, the late
Socrates of our Supreme Court, was right when he philosophically
posited that justice is a three-way traffic; justice for the
suspect accused of heinous crime, justice for the victim and
justice for the society.

It is a crying shame that the authorities are very quick to
organize a kangaroo amnesty program for terrorists while activists
are treated like common criminals. It is even more disturbing that
terrorists and bandits alike are pampered, fed and clothed under
the guise of rehabilitation and reintegration. Can the leopard
change its spot? Why is the government desperate to please a
terrorist group that is committed to destroying our country?
Nigerians expect answers to these troubling questions.

The manner in which the government of Nigeria goes about
treating terrorists with kid gloves questions its sincerity in the
fight against terror. Terrorists should be fought to a standstill.
They are not to be romanced and pampered. The tragedy of this
regime is that it encroaches citizens’ rights and liberties with
reckless abandon but treats real terrorists with courtesy, care and
love. Incontrovertibly, our country remains a risk until the
authorities change their affectionate attitude towards terrorists
and other criminals.

Festus Ogun is a Lagos-based lawyer and human
rights activist.
festusogunlaw@gmail.com

By Festus Ogun

In the face of the ongoing war against terrorism and banditry,
the Nigerian authorities have recurrently pardoned and released
Boko-Haram fighters and bandits. Under the guise of repentance,
negotiation, surrender, rehabilitation and deradicalization, the
authorities have released Boko-Haram militants and bandits at
different times. Not too long ago, the National Assembly was toying
with the idea of creating an agency for the rehabilitation of
repentant Boko-Haram members. For a terror group that has “left
more than 35,000 people dead and uprooted more than two million”,
the indiscriminate release of terrorists calls for deep caution,
concern and worry. Pardoning or releasing Boko-Haram suspects is
not supported by any law in Nigeria.

To start with, Nigeria is a country that operates a
constitutional democracy. We have laws and rules that must be
obeyed by the low and mighty. Section 1(1) of the 1999 Constitution
lucidly provides that the Constitution is supreme and its
provisions shall have binding force on all authorities and persons.
Consequently, there shall be no room for abuse of law and executive
recklessness. So long as the 1999 Constitution remains the
grundnorm, the rule of law and the doctrine of constitutionalism
must be respected and glorified in Nigeria.

Releasing and pardoning Boko-Haram fighters or members of any
terrorist organization whatsoever is unknown to the Nigerian law.
It is neither recognized nor supported by any living law in
Nigeria. As a constitutional lawyer, I have thoroughly read through
the provisions of the Armed Forces Act, the Terrorism (Prevention)
(Amendment) Act, the Administration of Criminal Justice Act and
other relevant laws; in futile search for a legal framework that
supports the pardoning of Boko-Haram fighters. It appears that the
authorities have only been discretionally setting free those who
ordinarily should be facing charges relating to terrorism and other
war crimes.

The war against terrorism is not one that can be won through
whimsical policies that are against the spirits of our laws. We
must understand that the Armed Forces, by their very nature, are a
creation of law and cannot continue to act as though they are above
the law. Terrorism is a serious crime which should not be treated
outside the fences of law. Terrorists are to be treated and dealt
with in accordance with the law. There ought to be no room for
arbitrariness.

How did the government of the day come to the conclusion that
they are repentant ‘terrorists’ when they are yet to be tried and
pronounced guilty of terrorism related crimes by our courts? The
Nigerian Army is not a court of law to determine the guilt of
suspected terrorists. Only the court is empowered to reverse the
presumption of innocence enjoyed by suspects under Section 36(5) of
the 1999 Constitution. When suspects have not been tried and
convicted, how come they are described as repentant Boko-Haram
members considering the fact that anyone accused of any offence
whatsoever is presumed innocent until the court holds otherwise?
Can a presumed innocent person be pardoned? These are legal posers
that are weeping profusely for sincere answers.

Fair trial is sacrosanct in determining the guilt of those
caught within the net of war crimes. The Nigerian Army can only
rehabilitate and reintegrate Boko-Haram fighters either after the
convicts have served their jail terms or after the grant of
presidential pardon. Only convicted persons can be properly called
Boko-Haram fighters. Legally speaking, you cannot forgive or pardon
a presumed innocent person. Our laws in Nigeria do not recognize
pardoning suspected criminals who are yet to face the fire of
trial. In fact, state pardon can only come after an accused person
has been convicted and sentenced accordingly. Instructively, only
the President or a Governor can exercise the power to grant
executive pardon or clemency to convicted criminals. The military
establishment cannot exercise such power. Therefore, to free
Boko-Haram suspects, without trial and outside the scope of law, is
to aid the activities of the bloody terrorists holding the peace of
our great country to ransom.

Can the Nigerian Army release Boko-Haram fighters? The simple
answer is a resounding NO. What the Army is doing is completely
alien to our criminal jurisprudence. The Army lacks the power,
right and authority to pardon or release any captured terrorists,
under any guise whatsoever. They, in fact, do not have
prosecutorial powers over terrorists or terrorism related offences.
The Terrorism Act, 2011 provides that the office of the
Attorney-General of the Federation shall prosecute offences
established under the law. Those arrested or captured by the Army
should be handed over to the office of the Attorney General for
diligent prosecution.

Given that the law is a means to an end, those suspected to have
committed crimes ought to be prosecuted in the interest of social
justice and not arbitrarily freed. Those who understand the
philosophy of justice would agree that freeing Boko-Haram fighters
without lawful justification is counter-productive, evil and
inimical to the ongoing war against terror. Oputa, the late
Socrates of our Supreme Court, was right when he philosophically
posited that justice is a three-way traffic; justice for the
suspect accused of heinous crime, justice for the victim and
justice for the society.

It is a crying shame that the authorities are very quick to
organize a kangaroo amnesty program for terrorists while activists
are treated like common criminals. It is even more disturbing that
terrorists and bandits alike are pampered, fed and clothed under
the guise of rehabilitation and reintegration. Can the leopard
change its spot? Why is the government desperate to please a
terrorist group that is committed to destroying our country?
Nigerians expect answers to these troubling questions.

The manner in which the government of Nigeria goes about
treating terrorists with kid gloves questions its sincerity in the
fight against terror. Terrorists should be fought to a standstill.
They are not to be romanced and pampered. The tragedy of this
regime is that it encroaches citizens’ rights and liberties with
reckless abandon but treats real terrorists with courtesy, care and
love. Incontrovertibly, our country remains a risk until the
authorities change their affectionate attitude towards terrorists
and other criminals.

Festus Ogun is a Lagos-based lawyer and human
rights activist.
festusogunlaw@gmail.com