‘A Critical Review Of Relevant Security Laws In Nigeria Vis-‘a-Vis Current Security Realities In The West African Sub-Region’

 

SEBASTINE T. HON, SANBEING A PAPER PRESENTED BY SEBASTINE T. HON, SAN, AT THE AMERICAN SOCIETY FOR INDUSTRIAL SECURITY CONFERENCE, HELD ON 25TH-26TH FEBRUARY, 2014, AT THE HOTEL PRESIDENTIAL, PORT HARCOURT

 I RESPECT ALL PROTOCOLS

PREFACE

In November, 2012, the Inspector-General of Police, Mr. Mohammed Abubakar, while responding to a question on why the police were not yet prosecuting the large number of terrorists captured so far, retorted that there were no laws in place to enable such prosecution! An embarrassed National Assembly, speaking through Senator Enyinnaya Abaribe, Senate spokesman, expressed shock at this apparent ignorance of the No. 1 Cop. He had this to say:[1]

The Senate is surprised that the Inspector-General of Police will say there is no anti-terrorism law. In fact, I have here a copy of the Terrorism Prevention Act of 2011 signed by President Goodluck Jonathan.

The National Assembly has since amended the 2011 Act, by enacting the Terrorism (Prevention) (Amendment) Act, 2013;[2] but it is most embarrassing that as late as 2012, Nigeria’s chief law enforcer was not aware of the existence of a law to prosecute terrorism, one criminality that is almost bringing Nigeria to its kneels!

I must concede that this paper as couched is very wide, especially as one is to do a critical analysis of extant laws in Nigeria comparatively with what obtains in foreign jurisdictions. The reason is plain enough: due to the spiraling growth of local and cross-border terrorism, most countries of the world have enacted legislation aimed at tackling this scourge; hence any attempt to do an exhaustive comparative analysis will result in a very voluminous thesis being written. This will be well beyond the scope of this paper.

What I have done, therefore, is to select a few legislations from a few countries and have done the comparative, call it critical, analysis.

I have also decidedly limited my discourse to terrorism and money laundering, as these are about the biggest problems confronting Nigeria and the international community presently.

Please forgive any inadequacies you might find in this paper, as improvement could be made in subsequent fora.

The paper, for proper comprehension and appreciation of the subject being discussed, is divided into segments, which segments are further sub-divided into sub-paragraphs. Et seq.

INTERCEPTING TERRORIST COMMUNICATIONS

Section 7 of the Philippine Human Security Act of 2007 allows wiretapping, interception and or surveillance of terrorist communications by a police officer or law enforcement official and members of his team, upon “a written order of the Court of Appeals.” There is, however, a proviso, which prohibits surveillance, interception or recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence.

Comparative provisions in Nigeria

Section 29(1) of the Terrorism (Prevention) (Amendment) Act of 2013 provides as follows:

29.–(1) Without prejudice to any other law, the relevant law enforcement agency with the approval of the Attorney-General of the Federation may, with the approval of the Coordinator on National Security for the purpose of prevention of terrorist acts or to enhance the detection of offences related to the preparation of a terrorist act or the prosecution of offenders under this Act, apply ex-parte to a judge for an interception of communication order.

Subsection (2) of section 29 has authorised the Judge before whom such ex parte application is made to:

(a)       require a communication service provider to intercept and retain a specified communication or communications of a specified description received or transmitted or about to be received or transmitted by that communications service provider;

(b)       authorise the relevant law enforcement agency to enter any premises and to install in such premises any device for the interception and retention of a communication or communications of specified description and to remove and retain such a device for the purpose of intelligence gathering; and

(c)       authorise the relevant law enforcement agency to execute covert operations in relation to an identified or suspected terrorist group or persons for the purpose of gathering intelligence.

Also, while section 29(3) of the Nigerian Act requires such ex parte order to “specify the maximum period for which a communications service provider may be required to retain communications data,” subsection (4) of the section allows admissibility of such intercepted evidence if generated from a foreign country.

In spite of these provisions, President Goodluck Jonathan has recently forwarded an executive bill to the National Assembly for a law to enable security agencies record electronic communication between individuals and seize data from internet providers and mobile networks. The Bill, if enacted into law, will also enable security agencies to order telecommunication companies to conduct surveillance on individuals and release user data to authorities. It will also allow security agencies to intercept and record communications, without a warrant.

 Critique/Suggestions

Bureaucratic red tape and ego or personality issues between the Attorney General of the Federation and the National Security Adviser may hamper the quick realisation of the objects of section 29 of the Terrorism (Prevention) (Amendment) Act, 2013. There is no legislative wisdom in making the approval of these two high officials the condition precedent to obtaining such vital ex parte orders. It is hereby suggested that this provision be amended to require only the approval of the Attorney General, since he is the Chief Law Officer of the Federation.[3]

In view of the provisions of section 29 of the Terrorism (Prevention) (Amendment) Act 2013, I strongly kick against the recent Bill submitted by the President to the National Assembly. If it is aimed at fighting terrorism or any other crime, the 2013 Act has already taken care of the issue; but if for any other cause, I fail to see the necessary conditions on ground warranting such Bill.

In its Editorial of Tuesday, 4th February, 2014, The Nation Newspaper[4] strongly warned the National Assembly of the consequences of passing such Bill into law. This strong opposition newspaper hinged its warning on likely abuse by the ruling party against opponents. Also, drawing from the Edward Snowden squealing on the USA intelligence, the Editorial warned the National Assembly to be very circumspective while passing the Bill into law. The Editorial had this to say, inter alia:

The legislature must also be mindful of the provisions of such a tendentious bill considering the clear provisions of the 1999 Constitution on fundamental human rights. They must bear in mind that Nigerians will readily test any law that tends to limit the rights guaranteed to them under the Constitution; and it is their duty not to pass any law that will impede the Constitution. For their guide, section 37 of the 1999 Constitution provides: ‘the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.’ It is hoped that the proposals in the executive bill before the National Assembly, respect this fundamental law.

I agree; but I personally warn against passing the Bill into law, as there are no extenuating or demanding circumstances on ground in Nigeria necessitating such legislation. The only existing circumstance is terrorism; but happily, the 2013 Terrorism (Prevention) (Amendment) Act has already, as shown above, already taken care of the situation. Further, it will amount to a mockery of constitutional due process for any legislation to contemplate wiretapping willy-nilly by security agencies without recourse to the courts, as contemplated by the Bill sent by Mr. President to the National Assembly.

INTELLIGENCE GATHERING AND FIGHT AGAINST ORGANISED CRIME

The US Intelligence Reform and Terrorism Prevention Act of 2004 has quite commendably not only established the office of the Director of National Intelligence (DNI),[5] but has also provided that the office of the DNI shall not be located within the Executive Office of the President.[6]

Also, the Act, apart from establishing the office of the DNI, has also, again most commendably, established the following collaborative offices or departments:

  • The National Counterterrorism Center;[7]
  • The National Counter Proliferation Center;[8]
  • National Intelligence Centers;[9]
  • The Joint Intelligence Community Council;[10] made up of the Director of National Intelligence, who shall chair the Council, the Secretary of State, the Secretary of Treasury, the Secretary of Defense, the Attorney General, the Secretary of Energy, the Secretary of Homeland Security and “such other officers of the United States Government as the President may designate from time to time.” The chief function of this Council is to “assist the Director of National Intelligence in developing and implementing a joint, unified national intelligence effort to protect national security.”

Similarly, section 53 of the Philippine Human Security Act, 2007, has created the Anti-Terrorism Council, made up of an Executive Secretary as Chairman, the Secretary of Justice, the Secretary of Foreign Affairs, the Secretary of National Defence, the Secretary of Interior and Local Government; the Secretary of Finance and the National Security Advisor. This Council is charged with the responsibility of undertaking “the proper and effective implementation of the anti-terrorism policy of the country;” and its secretariat is to be known as the National Intelligence Coordinating Agency. Finally, by the provisions of the said section 53 of the Act, the National Bureau of Investigation, the Bureau of Immigration, Armed Forces of the Philippines, the Anti-Money Laundering Council, the Philippine Centre on Transnational Crime and the Philippine National Police intelligence and investigative elements “shall serve as support agencies for the Council.”

Comparative provisions in Nigeria

The Nigerian Terrorism (Prevention) (Amendment Act), 2013, has, in section 1A, made the office of the National Security Adviser, ONSA, “the coordinating body for all security and enforcement agencies under this Act.”

Critique/Suggestions:

The ONSA is too limited both in resources and other parameters to singularly coordinate all that has to do with anti-terrorism in Nigeria. The US model whereby all of the Secretary of State, the Secretary of Treasury, the Secretary of Defense, the Attorney General, the Secretary of Energy, the Secretary of Homeland Security, together with the Director of National Intelligence come together under one umbrella body known as the Joint Intelligence Community Council, should be adopted in Nigeria.

Secondly, even if neither of the National Counterterrorism Center or the National Counter-Proliferation Center are to be established in Nigeria, there should be established some National Intelligence Centres in at least the six geopolitical zones of Nigeria, if not in all the States of the Federation. This will greatly enhance intelligence gathering and sharing, twin tools for fight against organised crime.

TRAINING AGAINST TERRORISM

There is no single doubt that the US Intelligence Reform and Terrorism Prevention Act of 2004 is one of the most comprehensive enactments the world over, on security of the lives and property of any given nation. Thus, comprehensive provisions are also made to cover the following areas:

  • Establishment by the Director of National Intelligence of a cross-disciplinary education and joint training, “in order to promote a more effective and productive intelligence community;”[11]
  • Establishment by the same Director of an intelligence community scholarship program, “to award scholarships to individuals… designed to recruit and prepare students for civilian careers in the intelligence community to meet the critical needs of the intelligence community agencies;”[12]

Comparative provisions in Nigeria

Section 2(6) of the Nigerian Terrorism (Prevention) (Amendment) Act, 2013, quite leisurely, with respect, provides thus:

(6) The law enforcement agencies may initiate, develop or improve on specific training programmes for its officers charged with the responsibility for the prevention, detection, investigation, elimination and prosecution of terrorism activities in Nigeria. [Emphasis mine]

Critique/Suggestions

Again, the Nigerian legislation on this very important aspect of counterterrorism is grossly lacking in content and focus. For instance, the word “may” in the provision connotes a mere directory as opposed to a peremptory or mandatory duty. Secondly, unlike the US model, the office coordinating intelligence on counterterrorism in Nigeria is excluded from this training exercise; rather, the exercise is left in the hands of prolix security agencies. This is not proper and will least yield results. Once again, the US model is hereby suggested.

IMMIGRATION AND ORGANISED CRIME

The US Intelligence Reform and Terrorism Prevention Act of 2004 has also made far-reaching amendments to existing legislation on immigration matters. Thus, section 5401 of the Act has amended section 274(a) of the US Immigration and Nationality Act,[13] by adding a provision to the effect that any person who has brought aliens to the US in violation of the provisions of the Immigration and Nationality Act shall face a jail term of up to 10 years.

One important aspect of the provisions of section 5401 of the Act is the requirement that there be an outreach programme developed and implemented by the Homeland Security Secretary in consultation with the Attorney General and the Secretary of State, as appropriate, “to educate the public in the United States and abroad about the penalties for bringing in and harboring aliens in violation of this section.”

Another important provision is that of section 5402, which has again amended section 237(a)(4) of the Immigration and Nationality Act, by mandating deportation of aliens who have received military-type training from terrorist organisations.

Comparative provisions in Nigeria

There are no such elaborate provisions under Nigerian law. Rather, section 37 of the Terrorism (Prevention) Act of 2011[14] has merely made provisions mandating the Nigerian Immigration Service to prevent from entering into Nigeria persons reasonably suspected to be terrorists. Also, section 38 of the same Act, as amended by section 18 of the 2013 Act, has mandated the Nigerian Immigration Service to refuse an application for refugee status if the applicant is a terrorist.

Critique/Suggestions

The US model should be adopted, in addition to our existing laws.

TERRORIST TRAVEL AND EFFECTIVE SCREENING

The US Congress, in section 7201(a) of the US Intelligence Reform and Terrorism Prevention Act of 2004, made several findings, based on the 9/11 Commission recommendations, but the three most important findings are hereby reproduced as follows:

  • Travel documents are as important to terrorists as weapons since terrorists must travel clandestinely to meet, train, plan, case targets, and gain access to attack sites.
  • International travel is dangerous for terrorists because they must surface to pass through regulated channels, present themselves to border security officials, or attempt to circumvent inspection points.
  • Terrorists use evasive, but detectable, methods to travel, such as altered and counterfeit passports and visas, specific travel methods and routes, liaisons with corrupt government officials, human smuggling networks, supportive travel agencies, and immigration and identity fraud.

The US Congress then in section 7201(b) of the Act made comprehensive provisions on detailed strategies to be adopted in dealing with this problem and possibly eliminating it; while it also, in section 7201(c), legislated on the requisite technological way of achieving these goals.

In section 7204(a), the Congress made comprehensive findings, detailing the international or trans-national travels of the terrorists that carried out the 9/11 attacks. Indeed, finding (1) under section goes thus:

  • International terrorists travel across international borders to raise funds, recruit members, train for operations, escape capture, communicate, and plan to carry out attacks.

Section 7204(b)(1) then imposes executive duty on the President of the US in the following words:

  • The President should lead efforts to track and curtail the travel of terrorists by supporting the drafting, adoption, and implementation of international agreements, and relevant United Nations Security Council resolutions to track and stop international travel by terrorists and other criminals through the use of lost, stolen, or falsified documents to augment United Nations and other international anti-terrorism efforts.

OTHER NOTABLE PROVISIONS RELATING TO MIGRATION

In section 7205(a)(1) of the US Intelligence Reform and Terrorism Prevention Act of 2004, the US Congress found as a fact, from the 9/11 Commission findings, that there was a “current lack of a single convention for translating Arabic names,” which lapse “enabled some of the 9/11 hijackers of aircraft used in the terrorist attacks… to vary the spelling of their names to defeat name-based terrorist watchlist systems and to make more difficult any potential efforts to locate them.” Accordingly, Congress, in section 7205(b) mandated the President to attempt resolving this problem thus:

(b) SENSE OF CONGRESS.- It is the sense of Congress that the President should seek to enter into an international agreement to modernize and improve standards for the transliteration of names into the Roman alphabet in order to ensure 1 common spelling for such names for international travel documents and name-based watchlist systems.

In section 7210(a)(1), the US Congress found as a fact that the “exchange of terrorist information with other countries, consistent with privacy requirements, along with listings of lost and stolen passports, will have immediate security benefits.” The rest of the section is, therefore, dedicated to how the observation in section 7210(a)(1) will be redressed.

BORDER SECURITY AGAINST ORGANISED CRIME

Closely related to immigration issues is the issue of border security against organised crime.

It is indeed interesting to note that the northern border of the USA which poses a serious security challenge to that country (just like Nigeria), did not escape the prying eye of the US Congress, which in Title V Subtitle A of the US Intelligence Reform and Terrorism Prevention Act of 2004,[15] paid special legislative attention to that border through dynamic legislative action. Section 5101 of the Act has mandated the Secretary of Homeland Security to “carry out a pilot program to test various advanced technologies that will improve border security between ports of entry along the northern border of the United States,” while section 1502 requires the Homeland Security Secretary to design the pilot programme with the following features:

  • Use of advanced technological systems, including sensors, video and unmanned aerial vehicles, for border surveillance.
  • Use of advanced computing and decision integration software for: (a) evaluation of data, including border incursions; (b) assessment of threat potential; and (c) rapid real-time communication, monitoring, intelligence gathering, deployment and response.
  • Testing of advanced technology systems and software to determine best and most cost-effective uses of advanced technology to improve border security.
  • Operation of the programme in remote stretches of border lands with long distances between 24-hour ports of entry with a relatively small presence of US border patrol officers. [Emphasis mine]
  • Capability to expand the programme upon a determination by the Homeland Secretary that expansion would be an appropriate and cost-effective means of improving border security.

Comparative provisions in Nigeria

Even though the northern border of Nigeria, particularly the northeastern border, is the hub of terrorist infiltration, there are no such provisions under Nigeria law. In his valedictory remarks while exiting from office as Nigeria’s Chief of Army Staff, Lt. Gen. Azubuike Ihejirika (rtd.) early in February, 2014, blamed the country’s porous borders for the insurgency in the Northeastern part of the country. Corroborating his former Army Chief, Spokesman for the Military Joint Task Force in Borno State, Lt.-Col. Saghir Musa, offered the following chilling admission:[16]

From conservative estimates by locals, there are well over 250 footpaths from Damaturu/Maiduguri axis that link or lead direct to Cameroon, Chad or Niger. These paths are mostly unknown by security agencies, are unmanned, unprotected and thus serve as leaky routes for arms and ammunitions trafficking into Nigeria. It is disheartening and unfortunate that the “merchants of death” have since devised methods… to beat security agencies at the borders and through footpaths. These methods include the use of camels, donkeys and cows to traffic arms, ammunition and drugs, like cocaine into Nigeria…. Similarly, some cows and grains merchants in the North-East sub-region of the country, device means of hiding cache of arms and ammunition in empty fuel tankers, under vehicles’ engines and inside bags of grains mostly undetected by security agencies at the affected border posts. The “grains” are transported in large numbers via trucks, trailers, lorries and old model pickup vans and jeeps with little attention given to them by security agents! [Exclamation marks mine]

Suggestion

We should as a matter of urgency enact similar provisions in our body of laws. Nigeria has enough money to import necessary technology that would complement the efforts of the military in its fight against organised crime.

USE OF FINANCIAL INTELLIGENCE GATHERING AGAINST ORGANISED CRIME

Section 205 of the US Financial Anti-Terrorism Act of 2001[17] amended section 1564 of the Annunzio-Wylie Anti-Money Laundering Act, by adding paragraph (d) thereto, as follows:

(d) TERRORIST FINANCING ISSUES

(1) IN GENERAL – The Secretary of the Treasury shall provide, either within the Bank Secrecy Act Advisory Group, or as a subcommittee or other adjunct of the Advisory Group, for a task force of representatives from agencies and officers represented on the Advisory Group, a representative of the Director of the Office of Homeland Security, and representatives of financial institutions, private organizations that represent the financial services industry, and other interested parties to focus on –

(A) issues specifically related to the finances of terrorist groups, the means terrorist groups use to transfer funds around the world and within the United States, including through the use of charitable organizations, and the extent to which financial institutions in the United States are unwittingly involved in such finances and the extent to which such institutions are at risk as a result

(B)……………………………………………………………………………………………………………..

(C) means of facilitating the identification of accounts and transactions involving groups and facilitating the exchange of information concerning such accounts and transactions between financial institutions and law enforcement organizations.

In Canada, the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), was established in 2000 by the Proceeds of Crime (Money Laundering) Act, 2000; but was amended in 2001 to become the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2001.[18] This Centre which is under the Canadian Minister of Finance, gathers, analyses, assesses and discloses financial intelligence. It currently also provides the Canadian Security Intelligence Service (CSIS) with information on terrorist financing.

Similarly, the Australian Transaction Reports and Analysis Centre (AUSTRAC), was established in 1989, pursuant to the provisions of the Financial Transaction Reports Act of 1988. The Australian Anti-Money Laundering and Counter-Terrorism Financing Act of 2006 again re-established the AUSTRAC, which is Australia’s anti-money laundering and counter-terrorism financing regulator and a specialist financial intelligence unit.[19] Unlike the Canadian FINTRAC, however, the Australian AUSTRAC is under the office of the Attorney-General for Australia.

In the US, the Financial Crimes Enforcement Network (FinCEN) was established by order of the Secretary of the Treasury through the Treasury Order 105-08 on 25th April, 1990.[20] Upon the passage of Title III of the Patriot Act on September 26, 2002, the FinCEN was made an official bureau in the US Department of Treasury. This body performs similar functions as the other bodies discussed above.

Finally, in France, the Traitement du renseignement et action contre les circuits financiers clandestins (TRACFIN) was established in 1990 under the French Ministry for Economy, Finance and Industry and the Ministry for Budget, Public Accounts, etc.[21] It also performs similar functions as the other bodies discussed above.

Comparative provisions in Nigeria

It is befuddling that in spite of the ravaging effect of terrorism on Nigeria and Nigerians and Mr. President’s continued admission that Boko Haram has big financiers, all coupled with the poor image of Nigeria in the eyes of the international community as a result of the prevalence of international financial scams involving Nigeria, the country is yet to establish a financial intelligence agency!

Rather, the provisions of the Money Laundering (Prohibition) Act of 2011 have vested powers over financial intelligence in the Economic and Financial Crimes Commission, EFCC; yet no provision in that Act is targeted at tracking, analysing and disseminating financial intelligence reports. Besides, the enormous task of prosecuting financial crimes in Nigeria, juxtaposed with the abysmal poverty of staff strength and gross underfunding, is greatly hampering the efforts of the EFCC in delivering on its statutory functions of financial intelligence. Indeed, in spite of the provisions of this Act, Nigeria is still listed by the Financial Action Task Force as one of the non-cooperating countries or territories in financial intelligence.

It must be noted that two bills in this respect, sponsored by the Senate Leader, Senator Ndoma Egba, SAN and Senator Victor Lar, were merged and had passed second reading since 2013. Proposed to be under the Financial Ministry, the Bill if passed, is to establish the Nigeria Financial Intelligence Agency as the central body requesting, receiving, analysing and disseminating financial intelligence reports. Defending this Bill, Senator Ndoma-Egba told the Senate last year that if established, the Agency will “meet the precondition for the removal of Nigeria from the Financial Action Task Force list of non-cooperative countries and territories.”[22]

The House of Representatives is, however, yet to deliberate on the Bill as passed by the Senate. Galvanising support for the Bill, the Speaker of the House of Representatives, Hon. Aminu Tambuwal, told the public hearing organised by the House Committee on Drugs, Narcotics and Financial Crimes in Abuja on Monday, February 3, 2014, that if passed, the Bill will checkmate the high incidence of corruption and money laundering in Nigeria.

Critique/Suggestions

Apart from creating an image problem for Nigeria, the non-passage of the Bill into law has placed Nigeria precariously and shamefully under the Financial Action Task Force list of non-cooperative countries and territories, as warned by Senate Leader, Senator Ndoma-Egba. Non-passage of the Bill has also not only covertly supported corruption and money laundering, it has also aided in a great deal in whittling down the fight against terrorism and large-scale crimes. Needless to say that this delay or inaction has further dented the country’s image.

The House of Representatives should as a matter of urgency pass the Bill and Mr. President should also not waste time in assenting to it.

PRIVATE SECURITY AND PUBLIC-PRIVATE PARTNERSHIPS AGAINST ORGANISED CRIME

Section 6402(a) of the US Intelligence Reform and Terrorism Prevention Act of 2004 has created an Act within the same Act, by providing thus:

(a)       SHORT TITLE.- This section may be cited as the “Private Security Officer Employment Authorization Act of 2004.”

After this short title, section 6402(b) then goes on to tabulate the findings of the US Congress on the subject matter, as follows:

(b)       FINDINGS. – Congress finds that–

(1)       employment of private security officers in the United States is growing rapidly;’

(2)       private security officers function as adjunct to, but not a replacement for, public law enforcement by helping to reduce and prevent crime;

(3)       such private security officers protect individuals, property, and proprietary information, and provide protection to development centres, manufacturing facilities, defence and aerospace contractors, high technology businesses, nuclear power plants, chemical companies, oil and gas refineries, airports, communication facilities and operations, office complexes, gated communities, and others;

(4)       sworn law enforcement officers provide significant services to the citizens of the US in its public areas, and are supplemented by private security officers;

(5)       the threat of additional terrorist attacks requires cooperation between public and private sectors and demands professional, reliable and responsible security officers for the protection of people, facilities and institutions;

(6)       the trend in the nation toward growth in such security services has accelerated rapidly;

(7)       such growth makes available more public sector law enforcement officers to combat serious and violent crimes, including terrorism;

(8)       the American public deserves the employment of qualified, well-trained private security personnel as an adjunct to sworn law enforcement officers; and

(9)       private security officers and applicants for private security officer positions should be thoroughly screened and trained.

The rest of section 6402 has defined major terms used in the provision and has gone ahead to make other comprehensive provisions, like (a) criminal history information search; (b) providing information to the State Identification Bureau; etc, while section 6403 deals comprehensively with criminal history background checks.

Also, section 7305 of the Act provides an insight by the US Congress of private sector preparedness for instantaneous security challenges thus:

SEC. 7305. PRIVATE SECTOR PREPAREDNESS

  • - Consistent with the report of the National Commission on Terrorist Attacks Upon the United States, Congress makes the following findings:
  • Private sector organizations own 85 percent of the Nation’s critical infrastructure and employ the vast majority of the Nation’s workers.
  • Preparedness in the private sector and public sector for rescue, restart and recovery of operations should include, as appropriate–
  • a plan for evacuation;
  • adequate communications capabilities; and
  • a plan for continuity of operations.

(3)…………………………………………………………………………………………………………….

(4) The mandate of the Department of Homeland Security extends to working with the private sector, as well as government entities. [Emphasis mine]

Moreover, the imperative of public/private partnership (PPP) in the fight against terrorism has gained acceptability globally, since terrorists mingle more with members of the public than with security agencies and since private security outfits, organised and non-organised, also play important roles in providing security for life and property.

The international community has since 2006 turned its attention to making the PPPs work because of their strategic importance in the global fight against terrorism. We shall discuss some of these meetings and their resolutions.

The Organisation for Security and Co-operation in Europe (OSCE) Political Public-private Partnership Conference entitled “Partnership of State Authorities, Civil Society and the Business Community in Combating Terrorism,” was held in Vienna, Austria, between 31 May and 1 June, 2007. This meeting emphasised the importance of the PPPs in the following paraphrased words:

  • Participants though acknowledged the importance of the role of States to combat terrorism, yet acknowledged that given the nature and scale of today’s constantly evolving terrorist threat, states alone cannot successfully counter terrorism in all relevant areas without the deployment of all elements of national power together with the business community and civil society as a whole. “Such voluntary cooperation, based upon the principles of partnership and mutual trust, can be enhanced by taking due account of the relevant functions, tasks, and specific expertise of all partners involved.”
  • Enhanced public-private co-operation demands better information sharing mechanism and the active dissemination of best practices in this respect.
  • All sectors of society can benefit from working together to counter violent extremism and terrorism and their ideological justification.
  • The private sector is a clear target for terrorists and its active involvement in support of counterterrorism can complement political, law enforcement, developmental, and other governmental activities already underway.

One key recommendation, therefore, was that there was need for “joint antiterrorist efforts by government bodies, civil society and business.” They also “welcomed the discussion regarding models of continuous and active exchanges of information by them on issues regarding prevention, suppression and mitigation of terrorism.”

Follow-up conferences/meetings were organised by the OSCE in Madrid, on 30th November, 2007; Helsinki on 5th December, 2008 and in Sarajevo, between the 8th and the 10th of December, 2010. Amongst the relevant resolutions of the 2010 meeting were the following:

  • Anti-money laundering and combating terrorist financing (AML/CFT) legislation should be drafted in consultation with all relevant stakeholders, including financial institutions.
  • State authorities should ensure adequate confidentiality and protection of obligated entities from liability vis-à-vis third parties in the context of reporting on suspicious transactions.
  • On Designated Non-Financial Businesses and Professions (DNFBPs), State authorities should join forces with the DNFBPs to achieve, maintain and disseminate a clear understanding of the Money Laundering and Terrorism Financing (ML/TF) risk facing each designated non-financial business or profession in each country. Also, DNFBPs should be consulted in the process of defining and if necessary re-adjusting their respective AML/CFT regimes, regular interaction and a constructive spirit of co-operation between equal partners.
  • Civil society should be galvanised and empowered to challenge violent extremist narratives and to engage with vulnerable groups/individuals.
  • In partnering with the civil society, State authorities should respect the independence and preserve the credibility of those private partners.
  • Religious institutions and leaders have the moral authority and duty to promote dialogue, mutual respect and tolerance, and to publicly denounce terrorism and violent extremism.
  • Acts of violent extremism and terrorism, especially against religious sites or figures, should be promptly, publicly and jointly denounced by religious leaders of all faiths, (local) authorities and other relevant institutions, to demonstrate cohesion and determination in the face of terrorism.

Comparative provisions in Nigeria

Section 3(1)(b) (c) and (d) of the Nigeria Security and Defence Corps Act, 2004,[23] as amended by the Nigeria Security and Defence Corps (Amendment) Act, 2007,[24] provides as follows:

  • The Corps shall–
  • recommend to the Minister the registration of private guard companies;
  • from time to time, inspect the premises of private guard companies, their training facilities and approve same if it is (sic) up to standard;
  • supervise and monitor the activities of all private guard companies and keep a register for that purpose–
  • ………………………………………………………………………………………………………….
  • seal up any private guard company which operates without valid licence.

 

Critique/Suggestions

There is no gainsaying that Nigeria needs to enact legislation and fine-tune existing ones and also to reshape its public policy, in order to key into some of the OSCE recommendations above, useful as they are to our collective resolve against terrorism and organised crime.

PROVIDING MATERIAL SUPPORT TO TERRORISM

Section 6602 of the US Intelligence Reform and Terrorism Prevention Act of 2004 has amended section 2339C of the United States Code, by inserting a new paragraph D(a), which has criminalised the offence of knowingly receiving military-type training from or on behalf of any organisation designated at the time of the training by the Secretary of State as a foreign terrorist organisation. Additionally, paragraph D(b) of the provision imbues US courts with extra-territorial jurisdiction over some persons named in the provision.

Implementation of 9/11 Commission recommendations

The US Congress took a proactive legislative action, by enacting into law its findings on the recommendations of this Commission, in section 7101 of the 2004 Act, as follows:

            SEC. 7101. FINDINGS

            Consistent with the report of the National Commission on Terrorist Attacks Upon the United States, Congress makes the following findings:

  • Long-term success in the war against terrorism demands the use of all elements of national power, including diplomacy, military action, intelligence, covert action, law enforcement, economic policy, foreign aid, public diplomacy, and homeland defense.
  • To win the war on terrorism, the United States must assign to economic and diplomatic capabilities the same strategic priority that is assigned to military capabilities.
  • The legislative and executive branches of the Government of the United States must commit to robust, long-term investments in all the tools necessary for the foreign policy of the United States to successfully accomplish the goals of the United States.
  • The investments referred to in paragraph (3) will require increased funding to United States foreign affairs programs in general and to priority areas as described in this title in particular.

Comparative provisions in Nigeria

Sections 4-14 and 19(b) of the Terrorism (Prevention) (Amendment) Act of 2013 have quite commendably made provisions relating to providing material support to terrorists. Also, section 32 of the Act has quite commendably imbued the Federal High Court with extra-territorial jurisdiction over terrorist activities affecting Nigeria. However, legislative efforts like those in section 7104 of the USA Act be also considered by the Nigerian National Assembly for legislative action, because it emphasises diplomatic efforts towards the fight against terrorism.

REWARD FOR AND PROTECTION OF PRIVATE SOURCES IN FIGHT AGAINST ORGANISED CRIME

Section 501 of the US Patriot Act, 2001,[25] as amended in March, 2006, has authorised the US Attorney-General to make financial rewards to US citizens for assistance to the Justice Department in the fight against terrorism. The section further provides that neither failure to make such financial reward nor the amount of such reward shall be subject of judicial review.

Also, section 54(6) of the Philippine Human Security Act of 2007 has mandated the Anti-Terrorism Council to grant monetary rewards and other incentives to informants who give vital information leading to the apprehension, arrest, detention, prosecution and conviction of person or persons who are liable for the crime of terrorism or conspiracy to commit terrorism.

Comparative provisions in Nigeria

No legislation in Nigeria, to the best of my knowledge, has made provisions rewarding informants of terrorist activities. However, provisions are made for protection of such persons and witnesses who testify in terrorism trials, under sections 33 and 34 of the Terrorism (Prevention) (Amendment) Act of 2013.

Critique/Suggestions

Relevant laws in Nigeria should be enacted or existing ones amended to accommodate reward for persons acting as informers on serious security threats, especially terrorism.

CONCLUSION

Nigerian legislation on or against organised crime is grossly inadequate and lacks the necessary bite to stem the tide of these rapidly ravaging scourges. The acknowledged circulation of light military arsenal in the West African sub-region, owing to the Arab Spring and the ferocious attacks orchestrated by the Boko Haram insurgents and Fulani Herdsmen on locals is a testimony that the time to act is now!

Executive action must be complemented or backed by proactive legislative action, to achieve desired results. Again, the time to act is now!

 

SEBASTINE T. HON, SAN

Port Harcourt/Abuja-based Legal Practitioner and Author

 

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