The Limits of Free Movement, Criminalising Ransom Payment

I seize this opportunity to extend my condolences to the families of the Chief of Army Staff, Lt General Ibrahim Attahiru, Brig General Tunji Olayinka, and all the officers who died in the line of duty in the military plane crash near Kaduna Airport last Friday. May their souls rest in peace. Amen.

President of Miyetti Allah Kautal Hore and Freedom of Movement

Before I go into the ‘Word for Today’, permit me to comment briefly on an interview which I read last Saturday, given by the President of Miyetti Allah Kautal Hore, Mr Bodejo, instructing his members to disobey the ban on open grazing, saying the Fulanis don’t have borders or boundaries, and do not need permission to graze their cows from one area to another; and that wherever there is grass and water, they can feel free to graze their livestock there. This position is runs foul of Section 1 of the Land Use Act 1978, which vests all the lands in Nigeria in the Governors of the States, and Sections 43 & 44 of the Constitution which guarantee an individual’s right to the acquisition of immovable property (land, crops, buildings etc), and provides for the circumstances in which such property can be acquired (or used) by a third party.

Again, like I did last week, I call for restraint in our utterances, in a polity that is already heated, as it is counterproductive to make annoying statements that will only serve to make the environment hotter. Statements like Mr Bodejo’s only exacerbate matters, and for one, will only fuel the bitterness and anarchy that has already encompassed several parts of the country based on feelings of marginalisation and unequal treatment, despite the equity, equality and fairness provisions of the Constitution. Furthermore, for those who have been negatively affected by forcible grazing on their farmland, Mr Bodejo’s statement is anything but conciliatory and unifying.

While I do agree with Mr Bodejo that our right to freedom of movement is guaranteed by Section 41(1) of the Constitution, I go further to state that firstly, this right is reserved for Nigerian citizens only, not for foreign herders, whether they are Fulani or not (which has hitherto been the claim – that the herders causing the mayhem are not Nigerian), and certainly not for animals, as both do not qualify as Nigerian citizens; and secondly, the right to freedom of movement cannot be exercised by committing the tort of trespass or criminal trespass on farmlands or land belonging to others, either by being on their land, passing through, or grazing cattle upon their land and destroying their crops in the process. For example, in places like Benue State where the Penal Code Act applies, see Section 342 thereof, on the offence of criminal trespass. Also see the case of Mr Christian Spiess v Mr Job Oni SC.197/2013.

The right to freedom of movement is also not at large, as by virtue of Section 45 of the Constitution, the provisions of Section 41(1) shall not invalidate laws that are reasonably justifiable in a democratic society in the interest of public safety, public order, public morality or public health. The Southern Governors who have banned open grazing, and those who have gone ahead to enact laws banning same like Ekiti and Benue States, have done so in the interest of public safety and public order, to protect their citizens, and one can logically conclude that this falls under the exceptions listed in Section 45(1)(a-b) of the Constitution. See the case of N.U.E.E v B.P.E 2010 7 N.W.L.R. Part 1194 Page 538 at 575. In any event, in a Communique issued by the Northern Governors in February 2021 (three months before that of the Southern Governors), they had resolved that open grazing was no longer sustainable, and emphasised the need for herders to adopt new methods of herding, like ranching. So, majority of the Governors, North and South, seem to be on the same page with regard to open grazing.

The Offence of Ransom Payments

The Senate is in the process of passing a Bill which prohibits the payment of ransom to kidnappers, or the receipt of same by them. Apparently, this Bill, cited as the Terrorism Prevention (Amendment) Bill 2021, is a substitution of Section 14 of the Terrorism Prevention Act 2013, and provides for a punishment upon conviction of 15 years imprisonment.

While some like the Governor of Kaduna State, Nasiru El Rufai (Mallam), will certainly welcome with applause, the law which is said to have passed the second reading on the floor of the Senate, many, on the other hand, see it is as cruel, insensitive and unnecessary. One of the reasons for Mallam’s support of this law as he said, is that, by paying ransoms to kidnappers, we are not only further equipping them with the wherewithal to attack us more, be it insurgents or just ordinary criminals/bandits, such ransom payments have done absolutely nothing to curb kidnapping, but on the contrary, have made it a more attractive lucrative criminal enterprise, and an incentive for these miscreants to continue their heinous activities. Abductions have fast become common place, and nowhere and no one seems safe anymore. And, while I do not seek to alarm anyone, I believe that it would be remiss of me to downplay the situation we are currently facing, pretending that all is well, when in actual fact, it is not well.

Mallam went on further to use those Fulani Herdsmen who have been engaging in kidnapping as an example, stating that from earning N100,000 per annum from the sale of one cow, they now earn millions from kidnapping, and it would therefore, be an insurmountable task to get them to stop their unholy activities. Mallam’s answer therefore, is to take the stand of not paying any ransoms, as this will make it abundantly clear to the kidnappers that it is fruitless to abduct anyone, as they will not receive any money in return, thereby removing the attraction of fast and plenty money. Even the legitimate Herdsmen themselves, have not been spared from the violence, as we have heard numerous stories of the Herdsmen being victims of cattle rustling and being murdered, with their temporary settlements also being destroyed in the bargain.

And, while it may be difficult to dismiss Mallam’s line of thinking, I can’t say the same about the Senate’s move to outlaw ransom payments. In my opinion, one size does not fit all. There are different groups and different types of kidnappers, with different surrounding circumstances; and therefore, all options must be left on the table to tackle each unfortunate incident on its own conditions. Therefore, even if ransom payments are discouraged, outlawing them completely may be wrong; especially as the other side of the argument is that, it is unfair on Nigerians, the Government having failed to fulfil its primary purpose, that is, securing our lives and property (contrary to Section 14 (2)(b) of the Constitution), leaving us as sitting ducks to not only be victims of abductions, but also of crime generally, even to the point where people are now regularly attacked in traffic and robbed in broad daylight, to then ask families of victims of these abductions to sit down and twiddle their thumbs, and do nothing to secure the release of their loved ones, when Government is unable to do so.

If it was the FBI (Federal Bureau of Investigations, USA) asking people not to pay ransom because they will get the abductees back, that may be a different case, because they are effective, and known for their ability to successfully address thorny situations; but, the sad truth is that, whatever the reasons, there is nothing within the Nigerian law enforcement agencies, which can inspire that type of confidence in anyone, to make people sit back and let them do their thing! Seven years later, over 100 Chibok girls, and four years later, Leah Sharibu are still ‘at large’. How comfortable does this make any Parent or family feel, that they should relax and rely on Government to rescue their children, instead of using alternative negotiating skills?

American Rescue

Late last year, did the US Special Forces not come in to Nigeria to rescue their citizen, Philip Walton, who was kidnapped in Southern Niger and brought to Nigeria? They were said to have carried out the rescue operation successfully, without involving the Nigerian authorities, unlike the botched rescue operation of 2012 carried out by foreign forces with the involvement of the Nigerian authorities; the two foreign abductees were killed by their captors before they could be rescued. The story at the time was that, the mission was unsuccessful because of the moles within our ranks, as the captors seemed to be aware of the impending rescue operation in advance, and therefore, frustrated the operation by not only killing the abductees, but opening fire on the rescuers as they were approaching.

While majority of our Forces are obviously loyal, the issue of terrorists and criminals infiltrating their ranks is a reality that must not be ignored, and till many of these holes are plugged, like identifying these moles, increasing the number of law enforcement generally, be it the Police or the Armed Forces, equipping them adequately and deploying the use of technology, enacting a law prohibiting the payment of ransom may be iniquitous, and will possibly be ignored by the families of victims, if ransom payment is the only way they can successfully secure the release of their loved ones, for now. Government cannot be doing little or nothing, and expect the families of victims to follow suit! The Parents of the Kaduna Forestry College abductees, certainly paid no mind to Mallam’s directive, as they stated unequivocally that they negotiated and paid a ransom, to save their children.

Visiting Bwari

As the Law School students wrote their Bar Part 1 examinations last week, I paid a visit to Bwari to see things for myself. To and fro, I observed only two soldiers at one check point on the way back to Abuja from Bwari. So much for beefing up security in Bwari! Though the town centre was buzzing with activity and people (absolutely no observance of Covid-19 protocols), it is a distance away from the Law School and some of the external hostels that house many of the students. So, unless security around Law School, other educational institutions, and in Bwari in general, has been beefed up with invisible security agents like “Invisible Woman” of the “Fantastic Four” cartoon fame, Bwari seemed completely porous and unprotected to me. I drove past a Federal Government Girls Secondary School which was properly fenced and gated (at least from the front parts that were visible from the road), but I saw no sign of any law enforcement agents there either, and I felt that the height of the fence should be increased.

Conclusion

My point? If Government is incapable of doing what it takes to protect us, especially our beloved children, and Parents are left with only the option of praying for the safety of their children while they are in school, in the event that the worst happens, should they then be jailed for taking the only viable option of negotiating with criminals and paying to secure the release of their loved ones? Are people happy to have to go around scouting for money to pay ransoms? Government having failed abysmally in its primary purpose, should Parents and victims be made to suffer for this failure which is not of their making, by not doing everything possible to save their children and loved ones, because they don’t want to give impetus to criminals by giving them money? Is anything more important than saving our children and loved ones?

My dear colleagues, what do you think about this vicious circle – of either payment of ransom and thereby funding criminals and putting them in a better position to further terrorise us, or refusing to make ransom payments and leaving abductees to their fate, which may be death, like the five Greenfield University Students who were murdered last month? How do we get out of this no-win situation?