Can Pantami be prosecuted for acts of terrorism?

By Mike Ozekhome, SAN, OFR, Ph.DDr. Isa Ali Pantami is the Minister of Communications and Digital Economy. He is also known as Sheikh Pantami. He was born on 20th day of October 1972, in Pantami Ward, Gombe State, Nigeria.

Many Nigerians (including my humble self) have since called for Pantami’s resignation or his removal as a Minister by President Muhammadu Buhari, based on some of his incendiary religious statements made sometime between 2000 and 2006, as an Islamic scholar. In the highly inflammatory speeches, he had expressed allegiance to and support for (including sympathy with) the Taliban, Al-Qaeda and Boko Haram terrorist groups. These are three of the world’s deadliest terrorist groups. Mr. Pantami on the other hand, has since acknowledged that he made those statements. In his words, pleading adolescence and transfiguration:
“Some of the comments I made some years ago that are generating controversies now were based on my understanding of religious issues at the time, and I have changed several positions taken in the past based on new evidence and maturity.”
Do Pantami’s statements constitute terrorist acts?

Meaning of terrorism

Terrorism is commonly understood to refer to acts of violence that target civilians in the pursuit of political or ideological aims. The crucial aspect of the offence of terrorism is the creation of intense fear and anxiety, both physical and psychological, in the minds of members of the public, which have the effect of coercing, forcing or intimidating them to do, or abstain from doing, any act, or to adopt or abandon a particular view, policy or position to act according to certain principles (Abdulmumini v FRN (2017) LPELR-43726(SC) 29.

In the case of KARUMI v. FRN (2016) LPELR-40473(CA), the Court of Appeal, Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 25 – 25 Paras A – D) noted that:

“… The gravity of the offence of terrorism which involves the use of violence or force to achieve something, be it political or religious, is a grave affront to the peace of society with attendant unsalutary psychological effect on innocent and peaceful members of the society who may be forced to live in perpetual fear. It is an offence that may even threaten the stability of the state.”

Section 46 of the Economic and Financial Crimes Commission Act, 2004 (EFCC Act), is much wider in scope in the definition of terrorism, far beyond its narrow definition in Abdulmumini’s case (supra). There, the term “Terrorism” is defined to mean:

a) “any act which is a violation of the Criminal Code or the Penal Code and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public property, natural resources, environmental or cultural heritage and is calculated or intended to

(i) intimidate, put in fear, force, coerce, or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act or to adopt or abandon a particular standpoint, or to act according to certain principles, or

(ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency, or

(iii) create general insurrection in a state;

b) any promotion, sponsorship of, contribution to, command, aid incitement, encouragement, attempt threat, conspiracy, organization or procurement of any person, with the intent to commit any act referred to in paragraph (a) (i), (ii) and (iii).”

In 2011, the Terrorism (Prevention) Act No.10, 2011, came into force to deal with offences relating to conducts carried out or purposes connected with terrorism. The Act was subsequently amended in 2013 by the Terrorsim (Prevention Amendment) Act 2013. By virtue of Section 4(1) (b) of the Amendment Act, a person who knowingly, in any manner, solicits or renders support for a proscribed organization or an internationally suspected terrorist group, an offence under this Act and shall on conviction be liable to imprisonment for a maximum term of 20 years. Though, Buhari has unsurprisingly refused to formally proscribe Boko Haram, the terrorist group has, with its sisters, Al-Qaeda and Taliban, been proscribed internationally.

Under subsection 3 of the Section 4, the term “support” is defined to include:

1. Incitement to commit a terrorist act;

2. Offer of material assistance, weapons, including biological, chemical or nuclear weapons, explosives, training, transportation, false documentation or identification;

3. Offer or provision of moral assistance, including invitation to adhere to a proscribed organization; and

4. The provision of, or making available, such financial or other related services as may be prescribed in this act.

It is under these two Acts that Pantami’s inflammatory speeches may be analysed and viewed.

The extant legal opinion 

Dr. Pantami, as stated above, is not denying making those statements. It is not in doubt that he made those dangerous statements when he was already an adult (about 33 years and 11 months old). He was not a minor. So, his mind was not impressionable. His lame defence is that he has since renounced those views does not rule out the fact that he had committed a crime by supporting or sympathiing with terrorist organizations. However, under what law should he be tried?
There are two Acts mentioned above. The first is the EFCC Act, 2004. The second is the Terrorism Act, 2013 (as amended). Section 46 of the EFCC Act made reference to the Penal Code and the Criminal Code. These Acts shall now be considered.

Terrorism Act
The statements made by Dr. Pantami, pledging allegiance to Al-Qaeda, Taliban and Boko Haram, were made sometime in 2000-2006, while the Terrorism Act came into force on 3rd June, 2011. It is enshrined in Section 36(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), that:

“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”

In the case of OGBOMOR v. STATE (1985) LPELR-2286(SC), the Supreme Court, Per ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C., had cause to interpret Section 4 of the Criminal Code Act, Sections 33(8) and (12) OF THE 1979 CONSTITUTION, which are similar to Sections 36(8) and (9) of the 1999 Constitution. He noted at pages 14 – 17 that:

“… Section 4 of the Criminal Code Act which is similar and identical in effect, provides – “No person shall be liable to be tried or punished in any Court in Nigeria for an offence except under the express provisions of the code, or some other Act, or some Law, (or of some Order in Council made by her Majesty for Nigeria) or under the express provisions of some statute of the Imperial Parliament which is in force, in, or forms part of the law of Nigeria; Provided that in the case of an offence committed before the commencement of this Act the offender may be tried and punished either under the law in force when the offence was committed or under the code, provided that the offender shall not be punished to any greater extent than was authorized by the former law. “Section 11 also provides that -“A person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred”… These two provisions relate to the immunity from trial and conviction of a person with respect to an act or omission which at the time of its commission or omission did not constitute any offence under the law. – See Aoko v. Fagbemi (1961) 1 All N.L.R.15 400. It does not cover the trial and conviction of any person for any criminal offence which is defined, and the penalty thereof is prescribed in a written law. It cannot seriously be contested that, on the facts, the acts alleged to have been committed by the Appellant did not constitute an offence at the time of their commission. Section 33(12) of the Constitution 1979 provides for such cases. For the sake of completeness, I reproduce S.33(12) which is as follows- “Subject as otherwise provided in this Constitution a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this sub-section, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.” A combined reading of the provisions of S. 33(8) and S. 33(12) of the Constitution 1979 suggest that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence, which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated. Thus it is clear that a mere misdescription of the law under which a charge has been brought, does not necessarily render the offence charged one not known to the law at the time of its commission. Hence as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid, and is merely defective if there is any misdescription of the law under which the charge was laid.” (Emphasis supplied)

Dr. Pantami cannot therefore be prosecuted under the Terrorism Act, because his alleged terrorist acts occurred prior to the enactment of the Terrorism Act. The Terrorism Act does not have a retroactive or retrospective Act.

The EFCC Act applies 

The definition of terrorism under the EFCC Act, is however very broad. It includes any act that is intended to intimidate, force, coerce, or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act or to adopt or abandon a particular standpoint, or to act according to certain principles, or disrupt any public service, the delivery of any essential service to the public or to create a public emergency, or create general insurrection in a state and any promotion, sponsorship of, contribution to, command, aid incitement, encouragement, attempt threat, conspiracy, organization or procurement of any person.

The combustible and inflammable comments of Dr. Pantami no doubt were intended to cause fear or make any government or bodies abandon a standpoint, induce fear in the public or government, etc. He can be charged under the EFCC act.

The Penal Code Act and the Criminal Code Act

The Penal Code Act and the Criminal Code Act did not provide for the offence of terrorism. The Criminal Code provides for the offence of unlawful profession and unlawful society. There is no similar provision in the Penal Code. Since the alleged act took place in the Northern Part of Nigeria, Dr. Pantami cannot be charged with unlawful society or unlawful profession. But, he can be surely charged for terrorism under the EFCC Act.

As expected, Presidency, through its second-in-command, Chief Propagandist, Garba Shehu (as expected), has risen to the defence of Pantami. What did you expect? Exonerate him? That would have been the eighth wonder of the world following the Great Pyramid of Giza, Hanging Gardens of Babylon, Temple of Artemis at Ephesus, Statue of Zues at Olympia, Mausoleum of Mausolus, Collosus of Rhodes and the Lighthouse of Alexandria. The President appoints Ministers by virtue of section 147(1) of the 1999 Constitution. It is his sole prerogative, constitutionally speaking. But, such Ministers must first be confirmed by the Senate of the NASS, under section 147(2). The President can also sack a Minister (see section 11 of the Interpretation Act). He who hires can also fire. I can, however vow, that Pantami will NEVER be sacked. Garba Shehu has said that much. But, Pantami occupies a sensitive Ministerial portfolio (Minister of Communications and Digital Economy). He has unhindered access to all Nigerian’s data, NIN, BVN, and confidential information. Therein, lies Nigerians’ worries. Nay, nightmares. It has nothing to do with alleged “cancel campaign”, purported faceless “enemies”, or alleged ICP companies’ collusion (because of their alleged financial losses “through lower prices and greater consumer protection”), allegedly introduced by Pantami, as Garba would want some gullible Nigerians or pro-Buhari party people to believe.

Do I, for example, as a Nigerian patriot, fall into any of the above categories? Absolutely no. Pantami’s albatross has nothing to do with his alleged effectiveness or efficaciousness in his duties. But, it has everything to do with his dangerous religious antecedents which, on the surface, he says he has renounced, but is still effectively practising in reality. Otherwise, why will he invite only a very little known Al-Afrikiy (a wholly Muslim Television station, that broadcasts strictly religious matters) to solely cover a programme of a whole Federal Government’s activity – the virtual Flag-off capacity development programme on VSAT Installation Skills and TVRO Systems for 600 youths? Why?

This was only on March 22, 2021. Where were AIT, Channels, NTA, NAN, TVC, ITV, Arise News, SilverBird, Oak TV, or the several Radio Stations across Nigeria? This is Nigerians’ great worry, Mallam Shehu. Do not run away from the substance and pursue the shadow. Please, face the real issues at stake.

Pantami’s religious bigotry, earlier inflammatory speeches in support of and sympathy with terrorist groups, such as Al Qaeda, Taliban and Boko Haram (the third group of whose shed blood he described as “our Muslim brothers’ blood”), are the real issues at stake. Please, face them.

If we go by Garba’s pedestrian argument that woefully fails the acid test of logic and rigorous reasoning, why did Nigerians not pardon brilliant Mrs Kemi Adeosun who was accused of forging her NYSC Certificate, rather than pressurize and force her to resign her office?
Why didn’t the Presidency trenchantly defend Mrs Adeosun, a Yoruba woman? Who was more dangerous – a certificate forger, or a terrorist group sympathiser and supporter? Why support only Northern-Muslim Pantami? What about the death of one young lad, Sunday Achi, who was said to have been killed due to his incendiary preachment? What about the consequential killings of Christians in Kaduna, Kano, Jos, Maiduguri, Katsina and other parts of the North, occasioned by his bigoted religious teachings? What did former CJN, Onnoghen do that made the Presidency rubbish, hound and hunt him out of office in a most premature, disgraceful and unconscionable manner? What was the offence of the #EndSars innocent protesters, that were mindlessly and callously mauled down at the Lekki tollgate, even as they were harmlessly waving the Green-White-Green Nigerian flag in a peaceful protest? Why does the Presidency perennially have a “siege mentality”? Why does the Presidency forever play victimhood, when it is always the aggressor? Why do presidential spokespersons always scramble to outdo each other to beat Adolf Hitler’s Goebel to vile propaganda as exhibited during the World War II? Why will the Presidency be defending a Minister? What is it hiding? Why weep more than the bereaved? I cannot understand, or can you?

Under section 5(2) of the Terrorism Prevention (Amendment) Act, Pantami can be charged for terrorist activities, because terrorism includes “support” for; and “support” includes (in the words of the Act) “incitement to commit a terrorist act through the internet or any electronic means or through the use of printed materials or through the dissemination of terrorist information”.

My humble call on Pantami is to honourably resign his Ministerial appointment and save this clueless government of further infamy, calumny, obloquy and odium. Where he fails or refuses to do so (as I know he would), then President Buhari should sack him. Where Buhari refuses (as I know he would), then, any and every Nigerian or NGO that feels sufficiently concerned and aggrieved can approach the courts and ask for an Order of Mandamus, to compel the Attorney-General of the Federation, Mr Abubakar Malami, to prosecute Pantami, by virtue of section 174 of the 199 Constitution. Every Nigerian has the right (locus standi) to do this. The Nigerian Supreme Court has laid this to rest as far back as 1981 in the causa celebre (celebrated case) of Senator Abraham Adesanya v. President of the Federal Republic of Nigeria (1981) JELR 54679 (SC).

God bless Nigeria.