By Samuel Akpologun
A bill sponsored by Senator Ibrahim Gaidam (former governor of Yobe State) which proposes amnesty for Boko Haram Members is currently before the House of Senate.
Apart from proposing amnesty for the dangerous terror group, the Bill also recommends the compensation benefit of free foreign education.
This is totally unacceptable. The bill which seeks to create a National agency for education, rehabilitation and de-radicalization and integration of “repentant” Boko Haram members comes with all shades of wrong and injustice. There is no legal or reasonable basis for the proposed bill.
One can dare say that there is no greater attempt at sabotaging the sovereignty of the state of Nigeria than the proposed bill. The proposal is spite and an insult on the collective intelligence of Nigerians and amounts to dancing on the graves of our gallant soldiers who have paid the ultimate price of shedding their blood to defend us all from those urchins of undignified ancestry.
Firstly, the bill has the effect of overreaching the constitutional provision of separation of power. This is because it purports to vest the power of the Judiciary in the Legislative arm of government.
The power to determine the guilt or otherwise of a person is vested in the judiciary by virtue of Section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as ammended).
By the proposed bill, the power of the court to determine whether or not a suspect is a Boko Haram member is stripped off the court and given to some commission formed by the Bill or by the Executive arm. In Garba v University of Maiduguri (1986) All N.L.R. 149 and Amaechi v INEC No 3 (2007) 7-10 SC 172.
The Supreme Court held that the determination of criminal guilt is the exclusive reserve of courts of competent jurisdiction
Apart from breaching the constitutional provision of separation of power, the Bill also breaches the constitutional right of the purported Boko Haram members to presumption of innocence.
By terming some people as Boko Haram members, the bill presume that a suspect or group of suspects are guilty of terrorism, premeditated cold blood murder, ethnic cleansing and genocide which are Boko Haram’s stock in trade.
This detracts from the suspect(s)’s constitutionally guaranteed right to presumption of innocence (which even the suspect does no have the power to waive).
Until the power of interpreting the law and determining the guilt of a person has been exercised by a court of competent jurisdiction, the suspect is presumed innocent and the legislature cannot by a Bill strip the suspect of that right (See section 36(5) of the Constitution as well as the cases of Okoro v State (1998) 14 NWLR (pt 584) 255).
We therefore demand that suspected Boko Haram members be accorded the right to the presumption of innocence until proven guilty by the court. Then and only then can the issue of amnesty or pardon arise.
Furthermore the bill is a contravention of the constitutional provision of the fundamental right to life of Nigerians. In Effiom v The State (1995) 1 NWLR (PT 373) 507, the Supreme Court held that fair hearing which is encapsulated in fair trial entails easy access to court and the right to be heard.
And this carries with it is the right to a remedy where a breach of the rights occurs. The Bill denies Nigerians this right. It forecloses the right to get remedy and justice for the crime against humanity meted against them.
The Bill which seeks to shield criminals from justice is a travesty of justice. Oputa JSC of blessed memory once had this to say about justice:
“Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic – justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, “whose blood is crying to heaven for vengeance” and finally justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of.
It is certainly in the interest of justice that the truth of this case should be known and that if the appellant is properly tried and found guilty, that he should be punished. That justice which seeks only to protect the appellant will not be even handed justice. It will not even be justice tempered with mercy.”
Considering the aforesaid, the Bill if passed is obviously going to contravene the provisions. Section S.1(3) of the Constitution provides as follows:
”If any law is inconsistent with the provisions of this constitution, this constitution shall prevail , and that other law shall to the extent of the inconsistency be void.”
The Senate is therefore urged to avoid acting in futility by passing a law that would ultimately be void. The Bill is against the Constitution and against public policy. It amounts to rewarding criminality and reinforcing the failure of the State to protect its citizens.
Samuel AKPOLOGUN, Principal Partner, Ace and Vanguard Legal Practitioners could be reached via: 08065264570 or aceandvanguard.com