Kanu, Separatism and the Law in Nigeria By Teslim Oyetunji

Kanu, Separatism and the Law in Nigeria
By Teslim Oyetunji

The call for secession in Nigeria did not begin today. Afterall the northern part of Nigeria had actually considered peaceful secession from the “yet to be independent” union in 1953. In 1967, the disaffected eastern region attempted a bloody breakaway led by then Col. Odumegwu Ojukwu, it ended in the death of three million Igbos, mostly women and children. Although the Civil War ended in 1967, it didn’t end the yearning of the Igbos for an independent state.
The call for secession in Nigeria today is championed mainly by two agitators namely; Nnamdi Kanu and Sunday Igboho both of whom are from the southern part of the country. As the call for secession in the southern part of the country gather more steam, it seems sensible to clarify some legal and constitutional misconceptions on the subject.
For example, there has been several calls for referendum to enable a peaceful breakaway of the south perhaps emanating from a conscious need to avoid a repeat of 1967. This has been a heated subject of national discourse. But what is the position of the extant laws in Nigeria on the subject?
The Nigerian federalism is modelled after the U.S. system; hence, the union remains indivisible and indissoluble without a proper constitutional amendment. See. The preamble of CFRN,1999, as amended.
This simply means that no part of the union is allowed to breakaway by referendum. The United States faced a similar test to its union in 1861. After decades of simmering tensions between the north and south, 11 southern states declared secession and banded together to form the Confederate States of America. They were pulled back by Washington at the cost of 618,222 lives. In a federalism like Nigeria and the U.S. where the union is held to be indivisible and indissoluble, it is a given to assume that any attempt by any of the federating units to forcefully breakaway will very likely lead to violence and bloodbath.
The recent incendiary rhetoric of some agitators and their violent activities have already posed an existential threat to the unity of the country. Notable amongst these groups is the notorious Movement for the Indigenous People of Biafra known as “IPOB” founded by its renegade leader Mazi Nnamdi Kanu in 2014.
Kanu began his agitation in 2009 after setting up Radio Biafra. He set up IBOP in 2014 and quickly transformed from a benign Radio Presenter to the fully-fledged leader of a well-armed separatist group whose militia network is now well known for carrying-out attacks on Police Stations and uniform men. An article posted online on the “allAfrica” news website titled ‘Nigeria: IPOB Killed 128 Military, Police Personnel-Army’ dated 8th June, 2021 reported that IBOP has been responsible for the death of 128 military and Police Personnel, as well as 15 Civil Defense Officers, and 31 community policing members deployed within the south-east axis. Owing to these targeted attacks at security forces and Kanu’s increasingly subversive comments calling on members of his group to continue attacking the Nigerian State, the Nigerian government recently proscribed IPOB and blacklisted it as terrorist organization. But is it?
The Federal High Court of Nigeria (Abuja) pursuant to a motion exparte dated the 20th day of September, 2017 in Suit between the Attorney General of the Federal Republic of Nigeria Vs. The Indigenous People of Biafra in suit no. FHC/ABJ/C/81/2017 declared IPOB to be an unlawful organization. The proscription order was subsequently gazetted on the same 20th day of September, 2017.
Although the 1999 constitution of Nigeria guarantees and protects the right of all persons to form and participate in assemblies for the promotion of personal, group or collective interest, the said right isn’t absolute. Such assemblies as are allowed must be peaceful in their constitution and purpose. Thus, secret societies, separatist groups with violent agenda do not enjoy protection of the law. Quite the contrary, the state has an obligation to identify, expose, label and proscribe them as was the case with IPOB.
By openly declaring war on the Nigerian State and the issuance of death threats to high-profile political figures including the former president of Nigeria, General Olusegun Obasanjo (see. Article published online on the 7th of July, 2017 titled; ‘Nnamdi Kanu threatens to kill Obasanjo and household’ written by Lanre Babalola) IPOB has seriously diminished any credible claim to being a peaceful and lawful organization.

The definition of terrorism under the Nigerian Terrorism (PREVENTION) (AMENDMENT) Act, 2013 has substantially the same elements as that found in several international legal instruments, to wit; the unlawful use of violence or threat to intimidate or coerce a civilian population or government with the goal of furthering political, social or ideological objectives. ESN, the militia wing of IPOB has carried out several brazen raids on government target resulting in the death of security forces. For example, a 17-year-old Elom Daniel who was one the 59 suspected ESN members paraded by the police in May 2021, was said to have confessed to carrying out similar attacks for the group. See an article titled “Suspected ESN members admit attack on police formation in Ebonyi” published online on the 22 June 22,2021 at 4:12am.
Terrorism can in some cases also dovetail into the high crime of treasonable felony if the unlawful use of violence for political means combines with a call for an unlawful change of government through violent means. This is because the first responsibility of any state is the maintenance of law and order. In an article published on the website of daily post on the 29th of Sept. 2017 by one Segun Opejobi, Kanu was quoted as saying; “Nigeria should prepare for war, we are coming to annihilate you, my secret service is already studying the zoo and strategizing”. Statements like these are potentially treasonable especially if there is evidence that they have been acted upon by those to whom they are directed.
Treasonable-felony like terrorism is a legal offence devoid of any moral excuse or justification. It falls under the category of laws known as “Malum prohibitum” which means; conducts that constitute an unlawful act only by virtue of statute. Thus, in considering whether an act is treasonable or terrorist, moral justifications or reasons are not taken into consideration, once the elements of subversion or inciting terror for political, or ideological gains is proved, that is all that is needed.
Although the case of Nnamdi Kanu is still ongoing at the Federal High Court and the rule of “Sub Judice” forbids comments on the substance of the case, but one thing is clear from the available evidence in the public domain some of which are attributable to Kanu’s reckless statements and videos, there appears to be sufficient prima facie evidence to put him on trial on the charges currently brought against him.

Teslim Oyetunji is a Kaduna based legal practitioner