For years, Nigerians have waited for the Federal Government to make a pronouncement condemning criminal activities of killer herdsmen, who kill maim and rape innocent citizens? Is it not proper that all groups unleashing violence and terrorising citizens are called out and outlawed, to pave way for security agencies to go after them wholeheartedly? But that seems like an action that will never happen under the current government.

The Indigenous People of Biafra (IPOB), for its unlawful activities, was in 2017, pronounced as a terrorist organisation by the then Nigerian army’s Director of Defence Information, Major General John Enenche, after a reported clash between military personnel and IPOB members in Umuahia, Abia state. Maj.-Gen. Enenche gave reasons for pronouncing IPOB a terrorist organisation to include that, IPOB members used “stones, machetes and broken bottles, among others on a military patrol on Sept. 10, 2017.”

The Federal Government had and still insists that IPOB is a terrorist organisation, alleging that the group had printed its currency and was extorting money from innocent citizens of Nigeria. It stated that not even the herdsmen who are reported to have clashed with and killed farmers, raped women and destroyed farm lands could be placed on the same level with IPOB, which it accused to have carved out a territory of its own within Nigeria.

It should be noted, however, that after the Nigerian army pronounced IPOB as a terrorist organisation, then President of the Nigerian 8th Senate, Dr. Saraki condemned the categorisation of IPOB as a terrorist organisation, saying it was unconstitutional. He said that only legislation from the Nigerian National Assembly could make such a pronouncement valid.

Dr. Saraki had said, “I also wish to state that the announcement of the proscription of the group known as Indigenous People of Biafra (IPOB) by Governors of the South-east states and the categorization of the group as a ‘terrorist organisation’ by the Nigerian military are unconstitutional and does not follow due process.

“Our laws make clear provisions for taking such actions and without the due process being followed, such declarations cannot have effect. I am sure the President will do the needful by initiating the right process.”

Consequent upon these comments, the Federal Government immediately took its quest for IPOB’s proscription to court, where it obtained a court’s order proscribing IPOB. A Federal High Court in Abuja ruled that IPOB is a terrorist organisation and proscribed its activities.

Worthy of note is the fact that in 2017, the United States government said that it does not see IPOB as a terrorist organisation, adding that though she is strongly in support of a peaceful resolution of internal crisis in Nigeria, however, under the United States’ laws, IPOB does not fit in as a terrorist organisation.

However, militant herdsmen, who have caused so much harm to Nigerians have not been termed terrorists. Earlier in the year, Nigerians petitioned United States President, Joe Biden, the United Nations Organisation, the Economic Community of West African States, the African Union and the European Union to treat herdsmen as terrorists. The petitioners alleged that the Nigerian government had been expressing undue sympathy for the killer herdsmen.

Recounting his experience with herdsmen at his village in Mbaise during the lockdown, James Chinemerem, an entrepreneur who travelled for Easter holiday, and was caught up in the village due to the pandemic, said some herdsmen came into Udo village in Ezinihitte local government, Mbaise, through its boundary with Obowo LGA. Being a small community, the king sent the village security to ask the herders not to camp there, but they refused, until the next day when a youth leader in the community that understood their language spoke to them.

“They went into Onitcha, Mbaise, where they decided to camp. At night, the herdsmen would allow their cattle lie on the major road that leads to Abia State and on one of those nights, a motorcyclist ran into the cattle accidentally,” he said.

He noted that after the incident, the villagers asked them to leave but the herdsmen threatened to kill people, which led to a riot.

Explaining the issues, human right lawyer, Chief Malcolm Omirhobo, said government could only proscribe a body that is identifiable and determinable with clear structures, aims and objectives. “It is on this premise that the Nigerian government has failed, refused and or neglected to proscribe the militant herders like it did to Boko Haram and IPOB,” he said.

He suggested that the government has refused to proscribe herders, perhaps because it has sympathy for such militia herders, as there is no plausible reason why government should refuse to admit that what the criminal herders are doing amounts to terrorism.

“If the government is sincere with itself and wants to proscribe the militant herders as a terrorist group, what it must first do is to admit that the acts of the militia herders are acts of terrorism. Separate the genuine herders from militant herders and then declare the militant herder as terrorist groups. All the government has to do is carry out proper investigation to find out the names of the leaders, address and sponsor of the militant herder to make them identifiable and determinable,” he stated.

Omirhobo argued that by his estimation, the militant herdsmen are terrorists based on their activities, but suggested that the government is unable to proscribe them like it did to Boko haram and IPOB, possibly because it doesn’t have a recognised leader.

“They have cleverly hid their leaders and their structure from the public and have chosen to operate through legitimate socio-cultural bodies called Miyetti Allah. If the government wants to be honest with itself, it should proscribe Miyetti Allah for supporting the militant herdsman who are carrying out acts of terrorism and by do doing, the government will get at the militant herdsmen,” he suggested.

Ajoke Olawuyi of the University of Essex U.K, noted that herdsmen cannot necessarily be banned because they carry out legitimate work. She explained that the reason government is inclined to label IPOB a terrorist group is because of the definition of terrorism, which implies that such a person or group challenges the sovereignty of the government in a state.

“IPOB is trying to divide Nigeria, which is a criminal offence even punishable by death. It is one of the most frowned upon offences. If we are talking about activities of herders that relate to kidnapping, that is a capital offence, but it is not a defined activity of the herders’ occupation. So, even if some herders are kidnappers and killers, it doesn’t mean they are all kidnappers. But activities of Boko Haram and IPOB are that of insurgency and treason respectively,” she explained.

According to the convener, Criminal Justice Network of Nigeria, Nathaniel Ngwu, Nigeria’s Terrorism (prevention) Act 2011 as well as the amendment Act 2013, section 1(1) provide for the prohibition of all acts of terrorism and financing of terrorism. The Nigeria’s terrorism prevention Act, he said, defines such act of terrorism as an “act which is deliberately done with malice, aforethought and which: (a) may seriously harm or damage a country or an international organisation (c) involves or causes, as the case may be (i) kidnapping of a person; (ii) destruction to a government or public facility or private property and likely to endanger human life or result in major economic loss.”

Explaining further, he said, it means that if an individual or persons deliberately acts in such a way to endanger human life or destruction of government or public facility, which in all forces intended to causes harm, it would be assumed that the offence of terrorism has been allegedly committed.

“The process of proscribing an organisation or individual as terrorist is another hurdle to be considered before comparing a person or group as a terrorist group. Ordinarily, the issue of proscription should usually begin with a popular demand, owing to the operations and overture of such individual or groups so as to serve as a securitisation of counterterrorism mechanisms. As a security measure, proscription should portend the potential, catastrophic future into the present and render the required sanction as retribution for terrorists violence,” he said.

He added that for a proscription to be seen as a preventive measure, legitimate and proportionate reactions to acts of terrorism, must be generally justified and acceptable based on evidence. According to him, this is because proscribing an organisation would intrude upon liberal democratic freedom, rights of expression, freedom of association and freedom of speech.

According to Ngwu, who is also Project Director, Justice for Peace and Development Initiative, the proscription of IPOB is purely a political and within executive remit.

His words: “By the provisions of Section 2 of the terrorism (prevention) Act, the Attorney General of Federation together with the National Security Adviser or Inspector General of Police is empowered to just apply to a judge inside his/her chambers on a request to declare certain group a terrorist group and thereafter the order is submitted to the president for approval.

“There is no gainsaying that we should concentrate on a process that would engender security and peaceful coexistence than implying a system that will rather truncate our unity and security outfit. Of course, proscription helps to checkmate the activities of terrorists and curb its implications that will result into destruction of life and property. But we should bear in mind the consequences of proscription, which could be unintended to aggravate attempts at peace and reconciliation that would unify us all.”

Ngwu reiterated that the call from some quarters that militant herdsmen should be proscribed can be related to the provisions of the Terrorism (prevention) Act, whether their actions have fallen short of the laws, particularly at section 2 of the Terrorism (prevention) Act 2011. He stressed that it is under the prerogative of the President and the discretionary powers of the Attorney General of Federation, National Security Adviser or Inspector General of Police to consider if the acts of the militant herdsmen could be classified as offences under section 1 of the Terrorism (prevention) Act.

“Since the law refers to the acts done and not just belonging to certain group or identifying with such group, the present regime should focus more on the actions of individuals or group of people who have committed terrorism offence(s) and file such proofs in court of law, while allowing the suspected persons or group the opportunity to defend themselves. Such a group should not be proscribed, while preserving the constitutional presumption of innocence,” he said.

He, however, stressed the need to err on the side of caution in criminalising or proscribing groups as terrorist organisation, hence the urgent necessity to review the law on the aspect of the proscription processes to allow persons or groups the opportunity to defend themselves on the request for court’s proscription order.

Abuja based lawyer, Abubakar Sani said that before a group can the proscribed, the position of the law stated in the terrorism act must be sought. According to him, any proscription that would stand the test of time needs to be within the parameters of those provisions.

He advised that such issues should not be politicised but appropriate action should be taken on the basis of the law.

“Just because IPOB has been banned, doesn’t mean herdsmen should. We should look at the law to determine if they meet the requirements of proscription. If herdsmen are found wanting by the law then the sanction of proscription should descend on them.

According to Sani, if militant herdsman satisfy the requirements to be banned, and the government fails to sanction them, it amounts to discrimination, which is wrong.

Senior partner, Law Chest, Chijioke Ifediora, said that in Nigeria, ethnicity, unfortunately, has been the bedrock for national development, crime fighting, political appointment and how governments respond to issues. Ifediora added that the actions of the government with respect to the handling of the issues of militant herdsman and IPOB continue to divide deeply the country it claims is indivisible.

“The proscription of IPOB at the time wasn’t commensurate with their actions, in all honesty. There was no room for dialogue, nor was there serious efforts taken to build a bridge of understanding between them and the government,” he argued.

According to him, the Federal Government has perpetuated sectionalism in various issues tearing this country down. These actions have an end product, which is the fact that everyone will be ethically minded. When serious issues like this arise, there will be no room for nationalism because people will always refer to the precedents being laid by the Federal Government.

He said: “There are many actions that may invoke government’s proscription order. Any crime or unlawful action against the state can attract proscription. Though Terrorism seemed to have gained strong attention because it strips any organisation of all rights and privileges in the society.

“If you look at the Terrorism Act Prevention Amendment Act 2013, Section 1 (2) defines terrorism as an act, which is deliberately done with malice, aforethought and which may seriously harm or damage a country or an international organisation or unduly compel a government or international organisation to perform or abstain from performing any act or an act that may cause grievously bodily harm.”

Ifediora added that once the National Security Adviser, Attorney General of the Federation or the Inspector General of Police makes an application to the Court with the approval of a judge, an organisation becomes proscribed. “I have advocated that this section 2 offends the principle of fair hearing. The power given to the State under that section is too wide and creates room for potential abuse.