A prominent pro-democracy and civil
Rights advocacy group- HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) has
condemned the Katsina State governor Alhaji Aminu Bello Masari for negotiating
with armed kidnappers and bandits just as the Rights group said the action is
an affront to the constitution of Nigeria and all relevant laws which obliges
the government to legally punish felons and hoodlums.
HURIWA in a position paper sent to the media and signed by
the National Coordinator Comrade Emmanuel Onwubiko and the National Media
Affairs Director Miss Zainab Yusuf, HURIWA affirmed that the
emerging illegality of some Northern States in entering into dialogues with mass
murderers and kidnappers in the guise of seeking for peace can only achieve a
peace of the graveyard and would amount to rewarding criminality. The Rights
group said the conspiratorial silence of both President Muhammadu Buhari and
the Federal Attorney General and minister of justice Alhaji Abubakar Malami
whilst these cocktails of illegality and mischief against the constitution go
on is the greatest disservice to the constitutional democracy even as the
Rights group charges the President, Muhammadu Buhari and all stakeholders
including the Nigerian Bar Association to speak out against the coup against
the Nigerian Constitution which these nocturnal meetings with killers and
kidnappers in Zamfara, Katsina represent.
HURIWA stated that: "It is said the culture of
violence brings with it a class of cruel people who believe they are entitled
to determine the value of other humans. This is a reality which dawns on a
society with weak criminal justice system where crime is not only prevalent and
under-reported and officially rarely documented but also seldom meted with
sanctions. This state of affairs breeds a most vile, oppressive and daring
criminal sets like kidnappers and arm bandits.
The US Department of State’s
Overseas Security Advisory Council (OSAC) report on Nigeria indicates that
kidnapping for ransom occurs throughout the country. There is hardly a part of
the country which has not experienced kidnapping and armed banditry in recent
times and most disturbing is the hard fact that there does not appear to be a
conscious and concerted effort to arrest the situation. This subject
therefore deserves attention and the reason for this paper.
Legal Definition of key terms
Kidnapping and abduction are used
interchangeably to describe the forceful taking or confinement of another
against their will for several illegal purposes. Some criminal legislation in
Nigeria defines the terms as different sides of a crime while in some others,
the age or state of mind of the victim is the distinguishing factor.
A lot of the States of the South
have passed laws criminalizing kidnapping and abduction. According to section 1
of the Kidnapping (Prohibition) Law of Lagos State 2017, the term “kidnap”
includes the act of unlawful removal or abduction of person(s) from a place to
another against the person(s)’ will, either by force or use of offensive
weapons, firearms or deception or the act of holding somebody hostage with or
without the person’s consent with the intent to demand ransom, for ritual
killing or for any other unlawful purpose.
By section 2 of the Law, the
punishment for abduction is life imprisonment but where death results from the
kidnapping, the punishment is death sentence. The section provides thus:
(1) From the
commencement of this Law, any person who-
(i) Forcibly
takes holds, abducts, detains or captures;
(ii) Instills
fear in another or the purpose of kidnapping through coercion or by any other
means against the person’s will with intent to demand ransom; commits an
offence, and is liable on conviction to life imprisonment.
(2) Where death occurs as a
result of the commission of the offence of kidnapping, the offender(s) shall be
liable on conviction to death sentence.
(3) The death sentence imposed
under subsection (2) may be executed by-
(i) Hanging;
(ii) Lethal
injection; or
(iii) As
the Court may direct.”
Under the Penal Code Law (PCL)
which applies in the States of the North including the FCT, the term kidnapping
is defined under section 271 in the following words:
Whoever takes or entices any
person, under fourteen years of age if a male or under sixteen years of age if
a female, or any person of unsound mind out of the keeping of the lawful
guardian of such person without the consent of such guardian or consent of
someone legally authorized to consent to such removal, is said to kidnap such
person.
While Section 270 of the PCL states
that whoever by force or by any deceitful means induces any person to go from
any place, is said to abduct that person. Punishment for kidnapping range from
10 to 14 years under section273 and 274 of the PC depending on the intention of
the actor.
On the other hand “armed bandit”
is not a legal term for any particular kind of crime but used in association
with criminals who carry arms especially firearms which the most deadly of all
kinds of offensive weapons. Section 3 of the Robbery and Firearms (Special
Provisions) Act criminalizes the illegal possession of “firearms” which is
defined under section 11 of the Act to include any canon, gun, rifle, carbine,
machine-gun, cap-gun, flint-lock gun, revolver, pistol, explosive or ammunition
or other firearm, whether whole or in detached pieces. To underscore the
gravity of firearms related offences, robbery with firearms is punishable with
death under Section 1(2) of the Act while receiving property subject of the Act
carries a sentence of life imprisonment as well. It is also a crime under
section 4(3) for any person hospital or clinic to admit, treat or administer
drug to a person with bullet wounds without reporting same to the police.
The Rationale
The State has two tasks in which
potential victims of wrongdoing are likely to take an interest; first is to
criminalize certain behaviors which wrong others, the second is to punish those
behaviors. It fulfils only one part of the law when all a society has is
provision in a piece of document without complementary enforcement of those
provisions in defaulters or deviants.
The first legal
basis and rationale for punishment of those crimes is that the law has provided
for their punishment. It must be reiterated that the usual procedure for law
passage involves the executive and legislative arm of governments, so much so
that even in military regimes, quasi legislative assembly or committees are
constituted to serve as the parliament to either formulate the set of rules
that eventually decreed or in the least the embellish it with the legislative
or legal jargons. The point is that at the violation of a law, the organ of
government with powers to adjudicate is the judiciary.
Another basis for which the crime of
kidnapping and arm banditry must be punished is that they are not compoundable
offences. A crime is compoundable when the victim of an offence which is
personal to him accepts settlement from the perpetrator in lieu of prosecution.
However the offences of kidnapping or abduction and armed banditry are not
personal to the any particular victims. The whole society is a victim of
kidnapping and armed banditry. They are offences which deal with
the state of safety of the public and for which any member of the society could
be a victim either by virtue of social standing in financial terms, or by
virtue of mere membership of a particular tribe or group or merely by being a
believer or practitioner of a particular faith or religion. Again the manner of
carrying out of these offences involve the use of fire arms which only the
State has prerogative over.
Moreover it is someway compounding
of offence to fail to prosecute and punish kidnappers and arm bandits. In
the case of PML (NIG) LTD v. FRN (2017) LPELR – 43480 (SC), 39-44,
Paras. B-C the Supreme Court shed light on the concepts of
compounding of offence and compounding offence in the following words:
"Compounding
a crime" is defined in the same Black's Law Dictionary, 9th Ed., as
follows
The offense of
either agreeing not to prosecute a crime that one knows has been committed or
agreeing to hamper the prosecution.
Compounding a
crime is also "a criminal act in which a person agrees not to report the
occurrence of a crime or not to prosecute a criminal offender in exchange for
money or other consideration"
………………………………………………………………………………….
The offense is
complete when there is an agreement to either withhold evidence of the crime,
conceal it, or fail to
prosecute
it.
"Compounding
of offences" on the other hand, is an act on the part of the victim, who
decides to pardon the offence committed by the accused person, and requests the
Court to exonerate him. This does not mean that the offence has not been
committed;”
In Ramesh Chandara v. A.P. Jhaveri
[A.I.R.1973 SC 84] the Indian Supreme Court made a profound statement which
appears to shade light on the conspiracy of silence in the midst of the
gruesome crimes and state of unrest in Nigeria today The Court held that an
invisible permission to compound a compoundable and non compoundable offence is
totally invalid.
Prevalence of an offence is another reason for the need
for stiffer measures and sanctions to ensure deterrence. In the case of
Onyilokwu V The State (1981) 2 NCR 49 where the offender was initially detained
for causing hurt, and later, he unsuccessfully tried to escape and was
additionally charged with escaping from lawful custody. Although he was later
discharged and acquitted, the court expressed the view that three years
imprisonment earlier imposed on him did not show adequate consideration not
only for his first offender status, but also , for an offence which was not
prevalent in the community. The rationale for reconsidering the sentence gives
a clear indication that a prevalent crime should not be treated with kid gloves
if such a society must survive the crime.
In the case of Olanipekmi V The State (1979) 3 LRN 204 1979
(alias junta manta), during a robbery, D the leader ordered one of his
followers to shoot a victim. He complied but the gun did not go off. In
sentencing him to five years imprisonment with hard labour, the court said:
‘’society demands
that such a man should be kept out of circulation for some time-the offence is
a serious one………’’
Similarly, courts have taken very serious view of the
offences which injure or threaten the lives of citizens. In the case of R. v.
Ozuloke Suit No.HU/4/47/C/71 (High Court Umuahia, Unreported) where the
appellant met a little girl aged about eight years who was related to him on a
village road, he covered her eyes with his hand and stuffed bread into her
mouth to stop her crying out and took her into a bush, he laid her out on the
ground, stood on her hand, poured acid over her body and cut off her left ear,
he forced her eyes open and poured acid into them. He later ran away leaving
the little girl unconscious. A twenty year jail sentence was considered
adequate; the offence was regarded as being most revolting. What could be more
revolting than the present state of widespread and indiscriminate possession of
firearms and the attendance wanton crimes of kidnapping, molestation, killings,
terrorism in all parts of the Country today.
Lastly the present prevalent state of armed criminality
is direct affront on the Constitution of the Federal Republic of Nigeria (CFRN)
1999 (as mended) and undermines her territorial integrity, national unity and
nationhood. Section 1 (3) of the Constitution of the Federal Republic of
Nigeria provides that
“The Federal
Republic of Nigeria shall not be governed nor shall any person or group of
persons take control of the government of Nigeria or any part thereof, except
in accordance with the provisions of this Constitution.”
The history of rebellion and revolution all over the
world began with proliferation of arms and unbridled state of crime associated
with such arms as in the present state. Nigeria therefore cannot afford to
treat the present state of crime and insecurity lightly under any guise. To do
so will be a clear decision to ignore history and tore its path.
The Problems
At the heart of the unabated state
of the menace is the lack of political will and seriousness in prosecuting suspected
or alleged offenders. A report in the Punch newspaper of March 9, 2013 had
notably reported that “political observers” had noted that “no meaningful
convictions” for kidnapping had been served even in states with laws
prescribing capital punishment for kidnapping and relating offences. Also the
All Africa of November 4, 2013 quoted then Edo State Governor as stating that
the challenge is the enforcement of laws on kidnapping. It is in this regard
that alot of political observers and commentators as well as members of the
public do not seem to absolve the role of the present government in the state
of insecurity in the country. While most peg their reason for the blame on the
utterances of high profile government officers, others cite the docile attitude
and near inactions as clear evidences of collusion.
Moreover there is the problem of
complicity of government or political office holders and law enforcement agents
with the suspects. A case in point is the most recent ugly incident in Taraba
State involving the Army and the arrest of Hamisu Bala Wadume by the men of the
IG Intelligence Response Team. It is surprising that no one directly took
responsibility for the unfortunate incident nor did anyone get fired,
notwithstanding the panel set up to invest the matter which again is another
illegality.
There is also the problem of poor
handling of prosecution by law officer or those from the appropriate
authorities. Allied to this is the poor state of the judiciary with incompetent
and compromised officers besides the usual issues associated with protracted
trials.
The communal culture of shielding
offenders or the lack of willingness to volunteer information by members of the
public also encourage the offences.
Recommendations
In a presidential system of governance as ours, the
executive arm seem to wield the greatest influence and coincidentally the state
apparatus for enforcement of law and order at its whims and caprices. The
President as the chief security officer must take responsibility for the
security of the country and urgently deploy resources at his disposal to
address this national emergency. In this regard, it does appear that there is
urgent need to shed the security weight on the president by considering state police.
Closely related is the fact that the President appoints
the chief law officer of the country under whose office the Department of
Public Prosecution is. There is need to review the mechanisms of investigation
and prosecution including their funding if the heads will not operate as
appendages of political parties especially that in government or power which
has been a huge set back. Recent events clearly buttress this fact. A law
officer cannot be independent if such exists at the pleasure of a political
office holder.
There is also the need to review judicial system with a
view to creating a special courts with impeccable judges to attend to cases as
under consideration to redirect the State. The usual courts are encumbered with
so many cases which do not help criminal trials of this nature, as a result so
much time is wasted and witnesses are discouraged from attending or prevented
by virtue of relocation or even misfortunes affecting their availability or
clarity of memory.
Moreover there is need for investigators and prosecutors
to be professional and discreet in handling information in order to encourage
informants and potential witnesses. Our system does not rely on hear say but no
one will be willing to risk their lives where their identities are not
protected or they are not offered any form of protection to volunteering
necessary information. The public confidence must be secured if investigators
and prosecutors are to make head-way. There is no suspected criminal who
doesn’t have a confidant but no one would risk their lives only to find out
afterwards that they did it for nothing.
Nigeria must also beef up its security equipment to
enhance collation, preservation and documentation of evidences. This will
greatly enhances investigation and narrow persons of interest to real suspects
to avoid the usual general raid will end in no conviction."
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