Saturday, 23rd September 2023

Bulletproof vehicles, national security and the criminal law

By ‘Femi D. Ojumu
26 October 2022   |   2:44 am
The Federal Republic of Nigeria shall be a state, based on the principles of democracy and social justice. It is hereby accordingly declared that: sovereignty belongs to the people of Nigeria

[FILES] President Muhammadu Buhari (left); National Security Adviser, Maj.-Gen. Babagana Moguno (rtd); Chief of Defence Staff, Gen. Lucky Irabor; Chief of Army Staff, Lt.-Gen. Farouk Yahaya; Chief of Naval Staff, Vice Admiral Awwal Gambo; Chief of the Air Staff, Air Marshal Isiaka Amao and Inspector General of Police, Usman Alkali during the National Security meeting at the Presidential Villa in Abuja. PHOTO: NAN

“The Federal Republic of Nigeria shall be a state, based on the principles of democracy and social justice. It is hereby accordingly declared that: sovereignty belongs to the people of Nigeria from whom government, through this Constitution, derives all its powers and authority; the security and welfare of the people shall be the primary purpose of government” Section 14 (1), (2)(a) and (b) 1999 Constitution of the Federal Republic of Nigeria (as amended).

That security is the concern of everyone is an immutable thesis. This is in the sense that every citizen is under a moral obligation to report reasonable concerns of security breaches to the relevant law enforcement or security agency. Likewise, the inherent power to either prevent a criminal act or to impede the commission of the same is a rational axiom in every country. Broadly, two conditionalities are imposed upon the exercise of this power: one, that it is reasonable and safe to do so; two, that there are no law enforcement officers able and present to do so at the material time.

The Nigerian Criminal Code Act, Laws of the Federation 2004 (as amended) goes further in section 272 affirming a legal power of arrest upon a natural person: “when a person who is not a peace officer or police officer is proceeding lawfully to arrest, without a warrant, another person, for an offence which is such that the offender may be arrested without warrant, and when any person is proceeding lawfully to arrest another person for any cause other than such an offence, and, in either case, the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the person seeking to arrest him to use such force as may be reasonably necessary to prevent his escape”.

It follows that where A witnesses, a minor, B, being assaulted by C, an adult, in a local park, A is well within his rights to rescue B, by effecting a citizen’s power of arrest against C; and, where C attempts to escape, A is lawfully empowered to use reasonable force to impede C’s escape by the provisions of this section.

Again, Section 33 (1) of the 1999 Constitution, supra, guarantees the right to life, save for the exceptions contained in subsections (2)(a), (b) and (c) therein; and, reflecting the common sense, section 287 of the Criminal Code affords citizens the right to self-defence in specified circumstances viz: “when a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm, and to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in self-defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm”

That foundation is necessary to establish the materially significant points that: a.) security is everyone’s business; b.) the law affords citizens the right to use reasonable force in specified circumstances to prevent and/or impede criminal acts; and c.) self-defence is justified where one reasonably believes his life is either in danger or at risk of grievous harm.

Now then, within the realms of national security, notwithstanding the heroic efforts of the gallant Nigerian security services, there remains a significant chasm in the government’s ability to safeguard the lives of citizens; pursuant to the overriding duty imposed on it to protect lives, in accordance with the aforementioned provisions of section 14 of the Constitution.

To put this in perspective, the fundamental definition of war is a conflict executed by force of arms as between nations, or between parties within a nation, whether or not it is motivated by economic, ethnopolitical, religious, territorial or other objectives. Upon that definition, rests the postulation that Nigeria is, in no uncertain terms, at war with terrorists, bandits and so-called unknown gunmen.

These pernicious statistics illustrate the point: On 8th March 2022, terrorist gangs murdered 80 people in Kebbi, North Western, Nigeria. On 28th March 2022, terrorists attacked a train on the Abuja/Kaduna route killing at least 8 persons including Amin Mahmoud, Dr Megafu Chinelo, Tibile Mosugu Esq and Musa Lawal-Ozigi Esq.

On Pentecost Sunday, 5th June 2022, terrorists exploded bombs at St. Francis Xavier Catholic Church, Owo, Ondo State, Nigeria, killing at least 40 and injuring over 80 persons.

The Methodist Prelate in Nigeria, Bishop Samuel Kanu, was kidnapped on 29th May 2022, alongside the Bishop of Owerri, Right Reverend Dennis Mark; and the Prelate’s Chaplain.

Again, on 5th July 2022, Islamic State West Africa Province (ISWAP) terrorists attacked the Kuje Maximum Security Prison in Abuja, Nigeria’s political capital, detonating “very high-grade explosives” per media reports, mortally wounding a security officer and injuring 3 others. Over 800 prisoners escaped and over 440 remain at large!

Back in August 2011, Boko Haram attacked the United Nations headquarters in Abuja, killing 23 persons. The evidence is indeed overwhelming. In fact, the Chief of Defence Staff, General Lucky Irabor, confirmed, at the recent October 2022 Ministerial Performance Retreat in Abuja that Boko Haram (BH) terrorism in the country had claimed over 100,000 lives, displaced over 2 million persons in the country, and cost the economy at least USD 9 billion.

Counterbalancing the peccable statistics, the Nigerian security services have, over time, recorded some notable successes. The Counter Extremism Project, for example, reported that on 6th August 2022, the Nigerian Air Force carried out a series of bombings in Katsina State killing 8 militants including the arrowhead, Abdulkarim Faca-Faca, who reportedly led attacks in Batsari, Danmusa, Safana and other parts of Zamfara State.

Days earlier, on 3rd August 2022, the Nigerian military carried out airstrikes in the Mandara Mountains of North Western, Borno State. The airstrike killed 28 BH terrorists operating in varying degrees across Nigeria, Niger, and Cameroon.

Nevertheless, the continuing attacks on innocent civilians, and the lack of a consistently adequate and robust response from state actors, against the terrorists, to sustainably safeguard the populace, raises serious questions pertaining to the completeness, dynamism and fitness for purpose of the existing National Security Strategy. The latter encapsulates the; National Counter Terrorism Strategy, Cybersecurity Policy and Strategy, National Defence Policy and the Economic Recovery and Growth Plan.

First, is the determination to fight, and win, this war, real and total? Second, is the right balance being struck in the deployment of kinetic and non-kinetic operations? Third, how sustainable is the operational deployment capability of the security services?

Fourth, is a call-up due? Fifth, what is the considered, informed and rational view of the executive and national security hierarchy, pursuant to the recent call by the former Chief of Army Staff and Defence Minister, (retired) General Theophilus Yakubu Danjuma for self-defence? Sixth, doesn’t the subsistence of so many frameworks which underpin the National Security Strategy, create complex coordination risks and policy overlaps? Finally, is a policy review not long overdue on the use of bulletproof vehicles, by those who choose to do so, without comprising the overarching national security aims?

Patently, these are colossal questions which must engage the considered, rational and urgent attention of senior policymakers and the defence hierarchy, if ordinary Nigerians are to have any confidence as to the seriousness the state attaches to their security and welfare in these uber-heightened times.

Regarding bulletproof vehicles, clearly, this is no utopian aspiration in national security architecture. It is a pragmatic policy proposal worthy of serious consideration.

After all, if Nigerians are not routinely permitted to carry weapons for self-defence, notwithstanding the realities of the state of war in the country; and the security services are unable to consistently discharge the duties imposed upon them pursuant to the provisions of section 14 of the 1999 constitution supra, on the security and welfare of citizens, why aren’t bureaucratic bottlenecks removed to enable ordinary Nigerians who can, and who choose to, acquire and use bulletproof vehicles more easily?

There does not seem to be any compelling logic for the extant bureaucratic burdens impeding routine access to bulletproof vehicles by those who freely choose to use them. These are the practical reasons why those burdens should be removed forthwith.

First, bulletproof vehicles do save lives. On July 23, 2014, then-presidential aspirant (now President) Muhammadu Buhari, survived an assassination attempt in a bulletproof car! On 11 September 2022, Senator Ifeanyi Ubah survived an assassination attempt in a bulletproof vehicle! On 21 October 2022, a cleric, Apostle Suleiman, survived an assassination attempt in a bulletproof vehicle! And, in each of the 3 examples cited above, security aides and/or police officers who, incidentally, were not travelling in bulletproof vehicles, albeit in the convoys of their principals, lost their lives gallantly attempting to protect them. May their souls and those of all victims of terrorism rest in perfect peace.

Second, the value of human life cannot be quantified in monetary terms. In other words, prevention is better than cure: it is eminently more sensible to save a human life than to pay compensation to bereaved children and dependants upon the loss of life to terrorism.

They hardly ever recover completely from the anguish of prematurely losing loved ones in such infernal situations. In short, the balance of policy risk is in favour of easing access to bulletproof vehicles for those who choose to acquire them as a rational defence, rather than the converse.

Third, is that the policy outcome of relaxing the acquisition and use of bulletproof vehicles is that more innocent lives would be saved. To that extent, there is an immediate efficiency gain and saving in the sense that the basis for paying any compensation to anyone on this particular point would not exist. To illustrate, terrorists attempted to assassinate attempt a citizen, X, heading home from work in a bulletproof car. X survives. The government does not have to pay compensation to anyone because X is alive and well!

Based on the foregoing, my considered recommendations are for the government to 1.) Urgently, review the national security strategy and make it fit for purpose; 2.) Re-activate through kinetic and non-kinetic means more effective counter-terrorism initiatives; 3.) Create the conditions for economic growth which, in turn, will reduce the incentive for unemployed youths to resort to terrorism; 4.) Excise confusing bureaucratic entanglements associated with acquiring bulletproof vehicles given the fact that the country is at war. If citizens cannot lawfully carry AK47s to defend themselves, surely, they must be allowed to acquire and use bulletproof cars; and 5.) Legislate, through Parliament, for an “opt-in” or “opt-out” clause in the employment contracts of any security aide, with compos mentis, travelling in the convoy of another at public or private expense, who is in a bulletproof vehicle. That way, he knows, and either accepts (or rejects!), the risks of travelling in a non-bulletproof vehicle in the course of his employment before that contract commences. Plus, there is complete transparency and the onus is on an employee to decide for himself whether he wishes to take on that employment or not.

Ojumu, Esq, is a principal partner at Balliol Myers LP, a firm of legal practitioners in Lagos, Nigeria.