Kanu: Nigerian laws allow for secret trial of terrorists like in US, UK — Ex-lawmaker tells FG

Nnamdi Kanu in one of his past court appearances. (File photo)

By Oluwafemi Popoola and Kehinde Adeoye

A former member of the House of Assembly, Kayode Oladele, has called on the Federal Government not to allow the use of court proceedings for the spread of manipulative propaganda by the accused and interested parties, as the trial of the leader of Indigenous People of Biafra (IPOB), Nnamdi Kanu, resumes on Monday, July 26, at the Federal High Court Abuja.

Oladele, a lawyer, and former House Committee Chairman on Financial Crimes in the 8th Assembly, who authored and co-sponsored the Terrorism Act amendment of 2013, thereby called for a trial procedure for those charged with terrorist acts to be based on the provisions of Terrorism (Prevention) Act 2011 and the Terrorism (Prevention) (Amendment) Act, 2013.

Kanu’s arrest from an unknown location and his extradition to Nigeria had been announced, on Sunday, June 27, by the country’s Attorney General of the Federation (AGF) Abubakar Malami.

Subsequently, the IPOB leader was arraigned before Justice Binta Nyako of the Federal High Court, Abuja, amidst tight security, on Tuesday, June 29, but the case was adjourned till Monday, July 26.

However, the controversy surrounding Kanu’s terrorism trial, especially its purported secret nature is one appealing to different interests both within and outside the country calling for a fair trial for the separatist leader.

But Oladele, justifying the need for a closed trial for terrorists, in advising the Federal Government to embrace secrecy in court terrorism trials, said that has been a model used by several Western nations, adding that acts of terrorism are tantamount to acts of war.

The former lawmaker gave this revelation in a five-page document entitled: “Terrorism Trials: An Overview of the Delicate Balance between National Security and Human Rights.”

In the informed researched submission, the lawmaker remarked that all terrorism trials anywhere in the world by their nature were always full of intricacies which involved several difficult legal issues bothering on procedure, conflict of laws including the protection of witnesses, issues of disclosure and the use of sensitive evidence during trails.

Although he warned the Federal Government on the need to ensure balancing between national security and and fairness of proceedings at all stages through proper protection of human rights standards as an international law obligation by the state, but advised the Federal Government to adopt secrecy in terrorism trials which he said dovetails into global practices of prosecution of terrorism cases.

For instance, he said, “the issue of witness protection which is a very important and critical aspect of terrorism trials all over the world can be found in Section 31 (1) of the Terrorism Act, 2011 where the law states in an attempt to protect witnesses that: (l.)The court may, on a motion by or on behalf of the prosecuting agency, protect a witness in any proceeding before it or its own motion where it is satisfied that the life of the witness is in danger and takes such measures as it deems fit to keep the identity and address of the witness secret.

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In its Section (2), he said: “ln particular, the measures which the court may take under sub-section of this section may include: (a) the holding of the proceedings at a place to be decided by the court; (b) avoidance of the mention of the name and address of the witness in its orders, judgments or records of the case accessible to the public; and (c) issuing of a direction for securing that the identity and address of the witness are not disclosed; and (d) a decision that it is in the public interest to order that all or any of the proceeding pending before such a court shall not be published in any manner.”

According to him: “Secrecy of terrorism trials which is another common feature of terrorism trials globally can be found in the Nigerian law, Section 31(3) of the 2011 Act, where he said the law provides that, “the court may, on motion by or on behalf of the prosecuting agency, in the interest of public safety or order, exclude from proceedings instituted for any offence under this Act, any person other than the parties and their legal representatives.”

He said: “Surprisingly, the 2011 Terrorism Act did not create a separate Court for the trial of terrorists. The jurisdiction is still vested in the Federal High Court which presumably, is expected to use the same procedure used for the prosecution of other criminal cases in terrorism trials, a significant departure from what is obtainable in several other jurisdictions where in addition to secret trials, Separate Courts such as Military Tribunals are usually used for the trial of terrorism cases.”

Essentially, he said, “accordingly, the federal laws currently dealing with the complex issue of terrorism in Nigeria today are the Terrorism (Prevention) Act 2011 and the Terrorism (Prevention) (Amendment) Act, 2013 since they are yet to be harmonized into a single legislation.”

Likewise, Oladele cited the Section 30 of the 2011 Act, as giving “the Attorney-General of the Federation the general powers to institute and undertake criminal proceedings on behalf of the Federal Government of Nigeria even though, he may “delegate his power to any agency charged with responsibility of terrorists investigation to institute criminal proceedings against any person in respect of offences categorized” in the Act,” which he put forward as empowering the government to justify the mode of the court proceedings for terrorists.

Arguing further, he said: “Realizing that the acts of terrorism are tantamount to acts of war, several Western nations including the United States and United Kingdom not only try most terrorism cases secretly by Special Tribunals, they also sometimes adopt special procedures in order to protect national security, public interest,” adding, it is also to “achieve a high rate of conviction that would not be achievable in the regular courts, where ‘due process’ is diligently pursued.”

The former lawmaker thereby said: “In the trial of terrorists, therefore, the focus is mainly about “dispensing military justice attendant to a military conflict”, not necessarily (though, important), the protection of the fundamental rights of the terrorists.

“No doubt, secret trials of terrorists and the use of special procedure for the protection of witnesses were inspired by the need to protect public interest and national security.”

Likewise, he cited scholarly arguments, he said: t “An open trial many scholars have argued, may end up providing the terrorist a free platform to spread their prohibited ideologies, disseminate noxious ideas, renew their resolve to sow seeds of discord and continue to instill fear of insecurity in the general public.”

Mr Oladele also gave an example of one Prof. Gross, who narrated the case of Zacarias Moussaoui, one of the planners of September 11 attack who was also supposed to be one of the airplanes high jackers as a good example of where the terrorist used the open trial as a platform to advance their views.

He quoted Gross, as saying during the terrorists trial that, “the fear that the public trial process would be misused bore fruit. Moussaoui waived his right to representation by counsel and instead of concentrating on conducting his defence, chose to make political speeches with the aim of broadcasting his views.”

“Accordingly, in a conflict between the protection of the rights of the terrorist through the open trial and the need to protect the public interest, national security and that of the witness, sovereign nations often consider the latter above the former,” he concluded.