In the face of the ongoing war against terrorism and banditry, the Nigerian authorities have recurrently pardoned and released Boko-Haram fighters and bandits. Under the guise of repentance, negotiation, surrender, rehabilitation and deradicalization, the authorities have released Boko-Haram militants and bandits at different times. Not too long ago, the National Assembly was toying with the idea of creating an agency for the rehabilitation of repentant Boko-Haram members. For a terror group that has “left more than 35,000 people dead and uprooted more than two million”, the indiscriminate release of terrorists calls for deep caution, concern and worry. Pardoning or releasing Boko-Haram suspects is not supported by any law in Nigeria.
To start with, Nigeria is a country that operates a constitutional democracy. We have laws and rules that must be obeyed by the low and mighty. Section 1(1) of the 1999 Constitution lucidly provides that the Constitution is supreme and its provisions shall have binding force on all authorities and persons. Consequently, there shall be no room for abuse of law and executive recklessness. So long as the 1999 Constitution remains the grundnorm, the rule of law and the doctrine of constitutionalism must be respected and glorified in Nigeria.
Releasing and pardoning Boko-Haram fighters or members of any terrorist organization whatsoever is unknown to the Nigerian law. It is neither recognized nor supported by any living law in Nigeria. As a constitutional lawyer, I have thoroughly read through the provisions of the Armed Forces Act, the Terrorism (Prevention) (Amendment) Act, the Administration of Criminal Justice Act and other relevant laws; in futile search for a legal framework that supports the pardoning of Boko-Haram fighters. It appears that the authorities have only been discretionally setting free those who ordinarily should be facing charges relating to terrorism and other war crimes.
The war against terrorism is not one that can be won through whimsical policies that are against the spirits of our laws. We must understand that the Armed Forces, by their very nature, are a creation of law and cannot continue to act as though they are above the law. Terrorism is a serious crime which should not be treated outside the fences of law. Terrorists are to be treated and dealt with in accordance with the law. There ought to be no room for arbitrariness.
How did the government of the day come to the conclusion that they are repentant ‘terrorists’ when they are yet to be tried and pronounced guilty of terrorism related crimes by our courts? The Nigerian Army is not a court of law to determine the guilt of suspected terrorists. Only the court is empowered to reverse the presumption of innocence enjoyed by suspects under Section 36(5) of the 1999 Constitution. When suspects have not been tried and convicted, how come they are described as repentant Boko-Haram members considering the fact that anyone accused of any offence whatsoever is presumed innocent until the court holds otherwise? Can a presumed innocent person be pardoned? These are legal posers that are weeping profusely for sincere answers.
Fair trial is sacrosanct in determining the guilt of those caught within the net of war crimes. The Nigerian Army can only rehabilitate and reintegrate Boko-Haram fighters either after the convicts have served their jail terms or after the grant of presidential pardon. Only convicted persons can be properly called Boko-Haram fighters. Legally speaking, you cannot forgive or pardon a presumed innocent person. Our laws in Nigeria do not recognize pardoning suspected criminals who are yet to face the fire of trial. In fact, state pardon can only come after an accused person has been convicted and sentenced accordingly. Instructively, only the President or a Governor can exercise the power to grant executive pardon or clemency to convicted criminals. The military establishment cannot exercise such power. Therefore, to free Boko-Haram suspects, without trial and outside the scope of law, is to aid the activities of the bloody terrorists holding the peace of our great country to ransom.
Can the Nigerian Army release Boko-Haram fighters? The simple answer is a resounding NO. What the Army is doing is completely alien to our criminal jurisprudence. The Army lacks the power, right and authority to pardon or release any captured terrorists, under any guise whatsoever. They, in fact, do not have prosecutorial powers over terrorists or terrorism related offences. The Terrorism Act, 2011 provides that the office of the Attorney-General of the Federation shall prosecute offences established under the law. Those arrested or captured by the Army should be handed over to the office of the Attorney General for diligent prosecution.
Given that the law is a means to an end, those suspected to have committed crimes ought to be prosecuted in the interest of social justice and not arbitrarily freed. Those who understand the philosophy of justice would agree that freeing Boko-Haram fighters without lawful justification is counter-productive, evil and inimical to the ongoing war against terror. Oputa, the late Socrates of our Supreme Court, was right when he philosophically posited that justice is a three-way traffic; justice for the suspect accused of heinous crime, justice for the victim and justice for the society.
It is a crying shame that the authorities are very quick to organize a kangaroo amnesty program for terrorists while activists are treated like common criminals. It is even more disturbing that terrorists and bandits alike are pampered, fed and clothed under the guise of rehabilitation and reintegration. Can the leopard change its spot? Why is the government desperate to please a terrorist group that is committed to destroying our country? Nigerians expect answers to these troubling questions.
The manner in which the government of Nigeria goes about treating terrorists with kid gloves questions its sincerity in the fight against terror. Terrorists should be fought to a standstill. They are not to be romanced and pampered. The tragedy of this regime is that it encroaches citizens’ rights and liberties with reckless abandon but treats real terrorists with courtesy, care and love. Incontrovertibly, our country remains a risk until the authorities change their affectionate attitude towards terrorists and other criminals.
Festus Ogun is a Lagos-based lawyer and human rights activist.