Amnesty for Boko Haram? Legal bellyache of a call

Pastor Ayo Oritshejafor, president of the Christian Association of Nigeria (CAN), and Alhaji Sa'ad Abubakar III, Sultan of Sokoto. leader of Nigerian Muslims

By STEPHEN UBIMAGO

The recent call by the Sultan of Sokoto and president-general of the Nigerian Supreme Council for Islamic Affairs, Alhaji Muhammad Sa’ad Abubakar III, that President Goodluck Jonathan should grant “total amnesty” to the dreaded Islamist terror group Boko Haram, which purportedly has, in the last three years, been responsible for the death of over 4000 Nigerians in the north, has indeed stirred the hornet’s nest.

Apart from members of the Christian community, who have roundly lashed out at the Sultan for what they’ve described as an insensitive call considering the otherwise sustained onslaught of the group that has left thousands of Christians maimed and killed; others says the call is ill-conceived as it is no more than yielding to the blackmail strategy of the extremist cult.

However, there are those who have extolled the Sultan for the call, saying it is courageous and presents a veritably alternative to the gunboat measure, which the government has hitherto been pursuing since its deployment of the Joint Military Task Force (JTF) to smother the many flashpoints strewn across the troubled region, especially in parts of the north-east, Borno State being Boko Haram’s operational capital.

Very representative of arguments opposed to the Sultan’s are those recently canvassed by members of the Christian prelature through the Christian Association of Nigeria (CAN).

In a statement made available to newsmen and signed by its general secretary, Dr. Musa Asake, CAN said it was puzzled by the statement credited to the Sultan that the Islamist militant group, Boko Haram, should be granted “total amnesty” for the sake of peace in Nigeria, since, according to him, “the bottom line of the problem facing us has been injustice meted out to people who are not supposed to.”

“We wonder what the Sultan meant by injustice in relation to the activities of Boko Haram sect when members of the group are a bunch of fundamentalists who have killed, maimed, deformed Christians and made orphans and widows of otherwise peaceful and lovely families,” CAN declared.

“The Sultan should be told that we have since found out that the attacks are primarily targeted at Christians and their Churches. Who then is suffering injustice? Who needs justice? Christians or those killing and bombing Churches?”

President Jonathan has however said his government is willing to grant amnesty and enter dialogue, but not with a faceless group.

“Boko Haram is still operating as a ghost and federal government will not negotiate or grant amnesty to any faceless groups or individual,” he stressed, while recently speaking in Damaturu, the Yobe State capital, during an interactive session with the people as part of his one-day official visit to the state.

Aside from the supposed strategic significance of the move as advanced by protagonists of amnesty-for-Boko Haram, yet another argument to bolster the call is the one credited to the director of Muslims Rights Concerns (MURIC) Prof. Ishaq Akintola.

Short of charging that failure to grant amnesty to the outlawed group is tantamount to double standards, Akintola noted ironically, “We are willing to grant amnesty in one case but determined to 'crush' with military might in another,” adding therefore that the terrorist group should be granted the type of amnesty, which the Federal Government then headed by a Muslim, declared for the Niger Delta militants.

Ostensibly, at the heart of arguments is the question of ‘policy precedent’ to wit, ‘Amnesty was granted insurgents in the Niger Delta. A pattern therefore has been established for addressing insurgency of all hue in the country; hence the militants currently operating in the north are equally as good for similar amnesty gesture.’

“Precedents work like fire,” notes Abuja-based lawyer Garba Irunoje in an informal chat with our correspondent. “Indeed the entire superstructure of Nigeria’s judicature or hierarchy of courts is grounded on the doctrine of precedent. This is the DNA our legal systems acquired from the English Common Law system, being an offspring.”

In Nigeria, Judicial precedents or stare decisis works as to constitute an authority, a legal principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

In OSAKUE v. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) 10 NWLR (Pt.1201) 1 at 34, the Nigerian Supreme Court per Ogbuagu (J. S. C.) defined stare decisis thus: “Stare decisis means to abide by the former precedents where the same points came again in litigation. It presupposes that the law has been solemnly declared and determined in the former case. It does preclude the judges of the subordinate courts from changing what has been determined. Thus under the doctrine of stare decisis, lower courts, are bound by the theory of precedent.”

Pertinent to note also is that statutes form only a part of the sources of law in Nigeria. However, statues over which there have been no judicial pronouncements or interpretation are nearly meaningless. These pronouncements deriving from courts’ application of established judicial principles and interpretation of statutes constitute Nigeria’s organic system of Case Law.

They are laws in the sense that they are of binding effect down the courts hierarchy, arising from the doctrine of judicial precedent or stare decisis, the words originating from the Latin maxim Stare decisis et non quieta movere: “To stand by decisions and not disturb the undisturbed.”

The point to be made from the foregoing is that although the Nigerian legal system is oiled by the doctrine of precedents, its application, however, is by no means haphazard. They are only “binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.”

It has thus been argued that since the facts pattern of the Boko Haram insurgency is not on all fours with the facts of the case in the Niger Delta insurgency, it misses the point to apply the same amnesty measure to the former.

The distinctions are limpid: There were definite causes, which the militants in the Delta claimed they were fighting for, and which held a semblance of value that arguably could be universally appreciated. They claimed they were pushing for “Resource Control,” “True Federalism,” and “Economic Emancipation” for the teeming unemployed youths of the oil-rich region; and were opposed to “Environmental Degradation” owing to crude oil exploitation.

Their modus was essentially to inflict economic sabotage on the nation. They claimed a determination to paralyse the Nigerian economy by destroying crude mining platforms and distribution infrastructure, which criss-crossed the region; as well as abduct expatriate oil workers employed by the multinational oil companies, who reportedly were responsible for the degradation of the environment without paying adequate compensation to their host communities.

That the so-called noble cause for which the militants in the Niger Delta fought was hijacked and skewed by some criminal elements is however beyond contention, yet their leadership were neither faceless nor unidentifiable as the likes of Asari Dokubo, Henry Okah, Boy Loaf, among others were household names.

The foregoing facts, however, can hardly be said to parallel patterns established in the case of Boko Haram, which transliteration reads ‘Western education is forbidden.

Following past bombing onslaughts, spokespersons of the violent sect had gone on to urge President Goodluck Jonathan to convert to Islam otherwise the blood-spilling will continue.

In not paying regards to the Constitution, which under s. 10 declares Nigeria as a secular state, or even s. 38 that guarantees the fundamental right to freedom of conscience and religion for every Nigerian, the group ostensibly aims to levy a revolution on the country, contrary to s.37 of the Criminal Code and s.1 of the Terrorism Prevention Act, 2011.

For whatever its worth, the sect pursues its aim with a blood-curdling, murderous streak. Scores of churches have been torched in bombing expeditions as thousands of Christian faithful were maimed and killed by the sect members. Security operatives were also killed; foreigners were abducted and butchered; schools were invaded and innocent students were mauled in their campuses; members of the clergy and heads of traditional institutions opposed to their style were brought into their fire line.

In short, the sect appears single-mindedly pursuing a nihilist campaign!

It will be recalled that the amnesty granted the militants in the Niger Delta did not come without conditions. Neither was it ever solicited from any quartre. The regime of President Umar Musa Yar’Adua, of its free volition in a strategic move, presented it as both a palliative and an instrument for negotiating peace. This sharply contrasts with the case of Boko Haram, which in a seeming presumptuous gambit had blatantly demanded that government should grant them amnesty even while still actively bellicose.

Implied in their demand is that their heinous crimes against humanity should be deemed forgotten and forgiven just like that, as though they never occurred – an apparent attempt to force the government and Nigerians, directly and intermediately offended by their deadly acts of terror, into amnesia or denial.

It will however be recalled that Yar’Adua, following the ponderous air, land and naval bombardment he ordered against Gbaramatu Kingdom in Delta State in 2009 that left the community in smithereens, had called on the insurgents in the then troubled region to come forward and lay down their arms in places across the region earmarked by the government for the purpose.

Upon their positive response to the call, the government promised to extend amnesty and rehabilitate them. A time ceiling was imposed for compliance, after which expiration the gesture was to be withdrawn. As would be obsereved in the case of the Niger Delta, it was the Yar’Adua government that called the shots and tabled the terms of engagement. Not the other way round.

In Boko Haram’s case, however, it appears the latter is the party dictating the terms, imposing a venue like Saudi Arabia as their preferred location for talks, with the northern leadership amplifying their predilections.

Against the backdrop of the foregoing, then, the divergent nature of the facts pattern in the two cases has tended to cast aspersion on the propriety of applying the amnesty measure to Boko Haram.

“People are always citing the example of the militants in the Niger Delta. It wouldn’t solve any problem,” says Chief Gani Adetola-Kaseem, a Senior Advocate of Nigeria (SAN), in a chat with us. “If you grant amnesty to Boko Haram, other insurgents will rise up either in that same zone or in other parts of the country, and you cannot say ‘no’ to another group.”

Others have argued that rather than any so-called amnesty, proper criminal trial should commence immediately against members of the group who have been caught and in security custody, since judicial proceeding in a competent court has a way of unearthing otherwise hidden facts. And this could go a long way in unraveling the sect.

Speaking in this regard in an exclusive chat with us, Chief Bolaji Ayorinde (SAN) said, “When the most heinous of crimes is put to a proper trial in a competent court, the society ultimately benefits. And you will find out that at the end of the day the society will be better for it. We can even prevent the re-occurrence of the criminal act, because there has been a proper trial.

“A good example is the unfortunate case of Clifford Orji, who we were informed at the time, while in prison custody, never went through trial. With a full trial, there could have been revelation as to how he got into the alleged crime. There were rumours as to him having “sponsors.” All that could have been established if there had been a proper trial.”