Mar 15, 2017

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

“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”
-David Tucker, Skirmishes at the Edge of Empire: The United States and International Terrorism 1997

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
known, and statements from various capitals 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.

Within eight years of 9/11, the world 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.
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.

Growing interest in the field of terrorism 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
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.

The absence of a consensus definition has 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
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).

Schmid and Jongman define terrorism as “an 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).

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 ) .

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.

Definition of Terrorism within the Nigerian 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;

(b) is intended or can reasonably be regarded as having been intended

(i) unduly compel a government or 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

(iv) otherwise influence such government or 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;

(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;

(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.

(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 ;

(vi) the release of dangerous substance or 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 ;

(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.
(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.

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.

The Act does not entertain the 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.

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 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
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.

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.

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.
Convention for the Prevention and Punishment of Terrorism
(1938) 19 League of Journal Official Manual 23 (not in force).

Schmid, Jongman et al. Political terrorism: a new guide to actors,
authors, concepts, data bases, theories, and literature.
Amsterdam: North Holland, Transaction Books, 1988.

 Ganor Boaz (2009) Trends in Modern International Terrorism,
in D. Weisburd et al. (eds.), To Protect and To Serve: Policing in
an Age of Terrorism, Springer New York.

 Maogoto Jackson, (2003) War on the Enemy: Self-Defence and State- Sponsored
Terrorism. 4 Melbourne Journal of International Law

United Nations General Assembly Declaration on Measures to
Eliminate International Terrorism (1994) , 49/

United Nations Security Council resolution 1566 (2004)

By: - 
Uduak Nsungwara

Anemuyem Akpan

Photo Credit -