By Musa Sunusi Ahmad
The Prominent Civil Rights Advocacy group- HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) has blamed the clear lack of good governance and political leadership amongst the South East governors and elected representatives at the State Houses of Assembly and the National for the reported bloody encounter between the Eastern Security Network(ESN) and the military in Orlu, Imo State which allegedly resulted in some casualties.
HURIWA whilst calling for caution, has resolved to write to the Chief of Army Staff Lieutenant General Tukur Yusuf Buratai to speak to him to ensure that the operatives carrying out any internal military operations which are lawful must comply with the rules of engagement and avoid inflicting mass collateral damage to the communities where such operations are happening or unduly terminate the lives of innocent civilians.
HURIWA recalled a news report in which it was quoted that one person was feared dead while scores were wounded in a clash between Nigerian Army and the Indigenous People of Biafra (IPOB) security outfit in Okporo Orlu in Imo State just as it was gathered that the soldiers who were in military operation in the area stormed the community suspected to be operational base of the IPOB newly formed Eastern Security Network (ESN).
HURIWA which cited news report stated that about five buildings including a church, Blessed Holy Trinity Sabbath Mission, in Orlu Local Government Area were said to have been allegedly set ablaze by “some armed security operatives” who invaded the area.
The Rights group said the incident according to a source happened around 6am on Friday. “The burning of the church was carried out by those masked security agents and the church that was burnt was the Holy Trinity Sabbath Mission in Orlu local government area.“About five buildings were burnt and only one person was killed and the person was killed at the market square. I want to tell you that the incident happened on Friday early morning.”
Both the Garrison Commander 34 Artilery Brigade Obinze, Owerri Brigadier General Yusuf Tukura and the Imo State police command were reported as confurming that a military operation took place in that exact location cited in the many news reports that circulated at the Weekend just as the IPOB Media and Publicity Secretary alleged thus: “The soldiers are killing civilians since this week in the area.How did we attack them first, did we go to their base and attack them first or they came to attack us in bush where we normally stay and work. We are not on the streets or roads we pusue terrorists in the bush and forest,” he stated.
But in a statement by the National Coordinator Comrade Emmanuel Onwubiko and the National Media Affairs Director Miss Zainab Yusuf, HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) said the lack of good leadership by the governors of the South East of Nigeria and their apparent lethargy in finding a home grown security mechanisms in partnership with the statutory security institutions recognised by the Nigerian Constitution to secure the lives and properties of Nigerians resident in the South East of Nigeria made it possible for some youths under the aegis of the proscribed Indigenous peoples of Biafra (IPOB) to try to put measures on ground for protection of the assets and lives of the people of South East of Nigeria that have come under intense attacks and invasions by armed Fulani herdsmen and other armed non state actors.
HURIWA said it was completely out of place for the Eastern Security Network ESN to be put in place without adequate legislative frameworks by the different state houses of Assembly of the South East of Nigeria with the support of the political, traditional and religious leaders of the South East and South South States of Nigeria under section 4(7) of the Constitution of the Federal Republic of Nigeria of 1999 as amended.
HURIWA has therefore asked those who put up the voluntary security Architectures in the South East of Nigeria under the auspices of the Eastern Security Network to get the buy-in and support of the State Houses of Assembly so proper legislation is passed bringing into being such a vigilante platform patterned after the AMOTEKUN SECURITY OUTFITS IN the South West of Nigeria. The Rights group said the voluntary security Architectures in the South East of Nigeria and the Crude oil rich South South ought to work in synergy with the statutory security institutions recognised by the Nigerian Constitution. The Rights group said the setting up of a security vigilantes is an idea whose time has come because the law allows people to take steps to save their lives and property from armed non state actors.
HURIWA recalled that a legal expert Jefferson Uwagieren had rightly stated as follows: “The right to use force in defence of oneself or another against unjusfiable attack has existed from time immemorial. If you don’t exercise it you will suffer and you will deserve the suffering. The rule as to the right of self defence or right of private defence has been stated by Russell W.O (1958), Russell on Crime, published by Stevens & Son Ltd 11th Edition, Vol. 1 at page 491. “A man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker such killing is justifiable.”
HURIWA recalled that the legal opinion is that: “Self defence or private defence has not been given a statutory definition in Nigeria, but has to be understood in the common law context of which there are two aspects. First, a man may in defence of liberty, person or property use such force as is necessary to obtain its object and which does not cause injury that is disproportionate to the injury sought to be prevented. Second, a man may use so much force as is necessary in repelling an unlawful attack on his person or liberty, but may not cause grievous bodily harm or death except in defence of life or limb or permanent liberty.In Nigeria, the right of defending one’s body or the body of any other person is codified in Section 32 (3) of the Criminal Code applicable in the Southern States of Nigeria and Section 59 of the Penal Code applicable in the Northern States of Nigeria.Section 32(3) of the Criminal Code provides, inter alia: “A person is not criminally responsible for an act or omission if he does or omits to do the act… when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence. Section 59 of the Penal Code on the other hand reads as follows: “Nothing is an offence of which is done in the lawful exercise of the right of private defence”.
HURIWA recalled that the legal opinion had also stated that: “It is well known, and psychologists have confirmed it, that if one is beaten/abused as a child, it is very likely that child will grow up violent. It is also likely that if our parents, brothers, sisters, are being murdered, by identifiable terrorists, we will grow up violent and seek revenge. If you beat a dog everyday, even if you own and feed it, one day when the dog has had enough, it will forget who owns or feeds it.
“HURIWA aggress with Jefferson Uwagieren that those in power must stop the wanton acts of murder perpetrated daily, across the country, on innocent Nigerian citizens by terrorists who seem emboldened and empowered by inaction and financial support disguised as ransom payments. People are not stupid and they are angry. Much patience has been displayed and much has been lost in the process. These killings must stop. Chukkol, K.S. (1989) The Laws of Crimes in Nigeria. ABU Press Limited Zaria at P. 100 says: “This is necessary if society is not to degenerate into anarchy with everybody taking the law into his hands”. In Akpan V. State, Adio JSCourt (as he then was) in interpreting section 286 of the Nigerian Criminal Code held as follows: “When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force on the assailant as is reasonably necessary to make effectual defence against the assault. The force which may be used in such circumstances must not be intended, and should not be such as is likely to cause death or grievous harm. If the nature of the assault is such as to cause reasonable apprehension of the death or grievous harm, and the person using force by way of defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence even though such force may cause death or grievous harm.” The above dictum was cited with approval by the Court of Appeal in Karimu V State, where the court ruled that before the defence of self defence can avail an accused or can lawfully be invoked, three fundamental principles must be established, viz:a. the defence can only be invoked against a person who is an assailant or an aggressor; b. the person attacked or assaulted or threatened with violence by the assailant must be in actual fear or belief of reasonable apprehension of death or grievous harm; c. the force used to repel the attack by the assailant must be proportionate to the force used in the attack. Under section 60 of the Penal Code, it is provided that subject to restrictions contained in the code, every person has a right to defend his own body, and the body of another person against any offence affecting the human body. One of the restrictions is that “the right of private defence in no case extends to the infliction of more harm than is necessary to inflict for the purpose of defence.”
Also, under Section 65 of the Nigerian Penal Code, private defence may, in certain circumstances, extend to killing where the act being repelled is one of the following categories:
(a) an attack which causes reasonable apprehension of death or causing grievous hurt; or
(b) rape or assault with intent to gratify unnatural lust, or
(c) abduction or kidnapping
Under the Penal Code of Nigeria, express provisions are made which give an accused person a right to kill in self defence where the act repelled is either rape, assault with intent to gratify unnatural lust, abduction or
kidnapping. In construing the Nigerian Penal Code provisions on the right of private defence, the Supreme Court in Kwagshir v State held that four cardinal conditions must exist before the taking of the life of a person is justified on the plea of self defence. These are:
a. the accused must be free from fault in bringing about the encounter;
b. there must be present an impending peril to life or of great bodily harm real or so apparent as to create honest belief of an existing necessity;
c. there must be no safe or reasonable mode of escape by retreat; and
d. there must have been a necessity for taking life.
HURIWA agress with the lawyer that It is clear that the Authorities are unwilling, unable, uninterested. ……in stopping these murders of innocent people in our communities. The rape of our mothers, sisters and daughters. The butchering of unborn babies ripped out of the stomachs of pregnant mothers in farms and communities. The organised murders of whole communities at a time and burning down of such communities.