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Pre-emption or hysteria in Nigeria? *Online Exclusive*

By Akinola Akintayo
Posted on Friday, 14 August 2009 00:00

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Nigerian President Yar’Adua has ordered an investigation into the death of Boko Haram sect leader Mohammed Yusuf, who was killed in late July under suspicious circumstances during a vicious round of bloodletting in northern Nigeria. Akinola Akintayo, a human rights expert from the Faculty of Law at the University of Lago, asks whether the government’s pre-emptive strike on members of the sect breached the Constitution.

In the early hours of 26 July 2009 a new round of religious bloodletting started in Borno State, northern Nigeria. According to media reports, the religious violence was the handiwork of Boko Haram, an Islamic fundamentalist/sect whose doctrine is opposed to all constituted authorities and abhors Western education.

The confrontation killed more than 100 people and left many injured victims in its wake, spreading into Bauchi and Kano States, among others. The federal government responded with a crackdown on sect members across northern Nigeria, killing the young leader of the sect, Mohammed Yusuf, and arresting many in the process.

Information on the facts leading to and surrounding the unfortunate incident is sketchy. According to some government officials, acting on intelligence reports, security operatives commenced a crackdown on the sect in an attempt to nip its nefarious activities and teachings in the bud before it snowballed into something else.

Having regard to the past history of religious violence and bloodletting in that part of the country, one is tempted to say this was a reasonable move. However, doubts remain over the legal propriety of the nature and manner of the pre-emptive attacks by security operatives. The circumstances surrounding Yusuf’s death are also highly suspect. The primary purpose of this short article is to assess the action and reaction of the government against the 1999 Constitution of the Federal Republic of Nigeria.

Freedom of thought, conscience and religion

Rights implicated in the crackdown and killing of the

fundamentalists by security operatives include the rights to life,

freedom of religion, expression of personal liberty, freedom of

movement and presumption of innocence, among others. Discussion of all

the rights implicated is outside the scope of this short piece. The

most important and relevant of the rights in question is the right to

freedom of religion.

The right to freedom of religion rests on a tripod: freedom of thought, conscience and religion. While these rights are interwoven and interrelated, they are distinct. Freedom of thought relates to the right to hold a view or idea which might be inconsistent with mainstream ideas or beliefs. Freedom of conscience relates to moral judgment. That is, the right to hold profound convictions on all matters. From this right arose the right of conscientious objection in the US. The last leg of the right is the right to religious belief.

The right to freedom of religion cannot be subjected to regulation on the whims and caprices of the government. Like all other guaranteed rights, exercising the freedom to practice and manifest religious belief is not subject to regulation until it constitutes an imminent threat or danger to public security, safety, health, morality or peace. Only clear and present danger to society will suffice as a ground for regulation or interference.

From the available facts, the Boko Haram sect was charged with two main wrongdoings. First, it was alleged that their doctrine was against constituted authorities. Second, it was alleged that they abhor or are against Western education. It was based on these that the security forces conducted clean-up operations to flush out the sect members. They arrested some and killed some. The sect members responded by attacking police stations and generally unleashing an orgy of violence on the northern populace.

The security forces counter-attacked and arrested and killed some more of the sect members, conducted house-to-house searches and generally rooted out the sect. Finally, the leader of the sect, Mohammed Yusuf, was arrested and killed.

Shrouded in mystery

His arrest and killing are shrouded in mystery. Colonel Ben Hanatu, the leader of the military team that arrested the sect leader, claimed that the man gave himself up willingly, was captured alive and handed over to police authorities in Maiduguri. Police authorities in Maiduguri, however, claimed that he was shot and killed by the police during an exchange of gunfire at the time of his arrest. Later still, police authorities changed the story and said that Yusuf was killed during an attempted escape bid. From all indications, it would appear that life was snuffed out of Mohammed Yusuf in police custody after his arrest. In other words, there was a case of extrajudicial killing.

Two things remain clear. The security forces drew the first blood by a widespread attack on the sect, under alleged guise of a preventive/pre-emptive strike. Secondly, the leader of the sect was killed in questionable circumstances and, it would appear, without due process.

As pointed out above, the first two components of the right to freedom of religion, namely the freedom to hold a belief and the freedom to openly proclaim such belief without fear or coercion, are absolute and non-derogable. The third component of the right, the practice or manifestation of belief, is subject to interference only where there is a present and imminent threat or danger to public security, peace, morality, and health. That the religious views or doctrines are offensive, unacceptable or against mainstream ideas or doctrines is not sufficient reason for suppression or interference. A man or woman has the right to abhor Western education or all education for that matter, save that such a person cannot forcefully foist his or her views on others. Additionally, by extant laws operative in Nigeria, a parent or guardian must allow enjoyment of basic education to his or her children or wards.

To the charge of being against the constituted authority, something more than hostility to authority must be established. Some kind of dangerous overt or covert act must be shown by the government to justify suppression. The details of the precise teachings or doctrines of the sect are unknown. Unless the government establishes the fact that the sect has done anything or is about to do anything endangering public security, safety, peace, morality or health, the alleged pre-emptive strike by the security forces will be unjustifiable and a gross breach of the right to religious freedom of the sect. The mere fact that the sect’s doctrine frowns upon constituted authority or abhors Western education is not sufficient reason for suppression of their views.

Contrary to developments in international law

As regards the questionable killing of Mohammed Yusuf, section 33 (2) (b) of the Constitution permits the derogation of the right to life for the purposes of effecting a lawful arrest or for preventing the escape of a person lawfully detained. Thus, if the man was actually killed in the process of preventing his escape from custody, it does appear that his death will be legally justifiable. Otherwise, his death would have been without legal justification and unlawful. It should, however, be pointed out here that an unqualified application of section 33 (2) (b) of the Constitution is out of tune with current development under comparative international human rights law. More progressive jurisdictions have done away with unqualified legal authority to use lethal force to prevent the escape of a fleeing felon.

Even if Mohammed Yusuf was killed while trying to escape from custody, his killing is not only a gross contravention of his right to religious freedom, it will run counter to current developments in comparative international law unless the government is able to show more compelling reason for killing him other than his alleged attempt to escape from lawful custody. He could not, however, in my opinion, be held to be escaping from lawful custody if his initial arrest is a breach of a right; in this case his right to freedom of religion. Consequently, unless a compelling reason is shown for the arrest, detention and death of Mohammed Yusuf, his death in custody is a violation of his rights to the sanctity of his life, religion, fair hearing and trial, among other sundry rights and is therefore unjustifiable, illegal and unconstitutional.

It is a pity that we are not, at this time, able to hear the other side of this messy and most unfortunate story. Information that has so far trickled down to the public is from the government’s propaganda apparatus. The public has not been availed of any information or facts from members of the sect or any independent and impartial party to make possible any conclusive and objective evaluation or determination of the issues. One can only hope that the passage of the Freedom of Information Bill currently pending before the National Assembly will ameliorate this kind of situation.

The onus is on the government to conduct a judicial enquiry to unravel the mystery surrounding this whole mess, especially the extrajudicial killing of Mohammed Yusuf, and avail the public of the reports. Any public official found to have erred or broken the law must also be punished to serve as a deterrent to others and prevent impunity which is fast becoming a feature of security operations and governance in Nigeria. Finally, a reconsideration of all exceptions to the right to life contained in section 33 (2) of the Constitution is due by the legislature. Nothing short of this will suffice for a government that has made the rule of law and rights observance its official policy.

Akinola Akintayo is a human rights expert from the Faculty of Law and the University of Lago

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