Why It Is Legally Mandatory To Punish Armed Bandits And Kidnappersb - Huriwa
A prominent pro-democracy and civil Rights advocacy group- HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) has condemned the Katsina State governor Alhaji Aminu Bello Masari for negotiating with armed kidnappers and bandits just as the Rights group said the action is an affront to the constitution of Nigeria and all relevant laws which obliges the government to legally punish felons and hoodlums.
HURIWA in a position paper sent to the media and signed by the National Coordinator Comrade Emmanuel Onwubiko and the National Media Affairs Director Miss Zainab Yusuf, HURIWA affirmed that the emerging illegality of some Northern States in entering into dialogues with mass murderers and kidnappers in the guise of seeking for peace can only achieve a peace of the graveyard and would amount to rewarding criminality. The Rights group said the conspiratorial silence of both President Muhammadu Buhari and the Federal Attorney General and minister of justice Alhaji Abubakar Malami whilst these cocktails of illegality and mischief against the constitution go on is the greatest disservice to the constitutional democracy even as the Rights group charges the President, Muhammadu Buhari and all stakeholders including the Nigerian Bar Association to speak out against the coup against the Nigerian Constitution which these nocturnal meetings with killers and kidnappers in Zamfara, Katsina represent.
HURIWA stated that: "It is said the culture of violence brings with it a class of cruel people who believe they are entitled to determine the value of other humans. This is a reality which dawns on a society with weak criminal justice system where crime is not only prevalent and under-reported and officially rarely documented but also seldom meted with sanctions. This state of affairs breeds a most vile, oppressive and daring criminal sets like kidnappers and arm bandits.
The US Department of State’s Overseas Security Advisory Council (OSAC) report on Nigeria indicates that kidnapping for ransom occurs throughout the country. There is hardly a part of the country which has not experienced kidnapping and armed banditry in recent times and most disturbing is the hard fact that there does not appear to be a conscious and concerted effort to arrest the situation. This subject therefore deserves attention and the reason for this paper.
Legal Definition of key terms
Kidnapping and abduction are used interchangeably to describe the forceful taking or confinement of another against their will for several illegal purposes. Some criminal legislation in Nigeria defines the terms as different sides of a crime while in some others, the age or state of mind of the victim is the distinguishing factor.
A lot of the States of the South have passed laws criminalizing kidnapping and abduction.. According to section 1 of the Kidnapping (Prohibition) Law of Lagos State 2017, the term “kidnap” includes the act of unlawful removal or abduction of person(s) from a place to another against the person(s)’ will, either by force or use of offensive weapons, firearms or deception or the act of holding somebody hostage with or without the person’s consent with the intent to demand ransom, for ritual killing or for any other unlawful purpose.
By section 2 of the Law, the punishment for abduction is life imprisonment but where death results from the kidnapping, the punishment is death sentence. The section provides thus:
(1) From the commencement of this Law, any person who-
(i) Forcibly takes, holds, abducts, detains or captures;
(ii) Instills fear in another or the purpose of kidnapping throgu coercion or by any other means against the person’s will with intent to demand ransom;
commits an offence, and is liable on conviction to life imprisonment.
(2) Where death occurs as a result of the commission of the offence of kidnapping, the offender(s) shall be liable on conviction to death sentence.
(3) The death sentence imposed under subsection (2) may be executed by-
(ii) lethal injection; or
(iii) as the Court may direct.”
Under the Penal Code Law (PCL) which applies in the States of the North including the FCT, the term kidnapping is defined under section 271 in the following words:
Whoever takes or entices any person, under fourteen years of age if a male or under sixteen years of age if a female, or any person of unsound mind out of the keeping of the lawful guardian of such person without the consent of such guardian or consent of someone legally authorized to consent to such removal, is said to kidnap such person.
While Section 270 of the PCL states that whoever by force or by any deceitful means induces any person to go from any place, is said to abduct that person. Punishment for kidnapping range from 10 to 14 years under section273 and 274 of the PC depending on the intention of the actor.
On the other hand “armed bandit” is not a legal term for any particular kind of crime but used in association with criminals who carry arms especially firearms which the most deadly of all kinds of offensive weapons. Section 3 of the Robbery and Firearms (Special Provisions) Act criminalizes the illegal possession of “firearms” which is defined under section 11 of the Act to include any canon, gun, rifle, carbine, machine-gun, cap-gun, flint-lock gun, revolver, pistol, explosive or ammunition or other firearm, whether whole or in detached pieces. To underscore the gravity of firearms related offences, robbery with firearms is punishable with death under Section 1(2) of the Act while receiving property subject of the Act carries a sentence of life imprisonment as well. It is also a crime under section 4(3) for any person hospital or clinic to admit, treat or administer drug to a person with bullet wounds without reporting same to the police.
The State has two tasks in which potential victims of wrongdoing are likely to take an interest; first is to criminalize certain behaviors which wrong others, the second is to punish those behaviors. It fulfils only one part of the law when all a society has is provision in a piece of document without complementary enforcement of those provisions in defaulters or deviants.
The first legal basis and rationale for punishment of those crimes is that the law has provided for their punishment. It must be reiterated that the usual procedure for law passage involves the executive and legislative arm of governments, so much so that even in military regimes, quasi legislative assembly or committees are constituted to serve as the parliament to either formulate the set of rules that eventually decreed or in the least the embellish it with the legislative or legal jargons. The point is that at the violation of a law, the organ of government with powers to adjudicate is the judiciary.
Another basis for which the crime of kidnapping and arm banditry must be punished is that they are not compoundable offences. A crime is compoundable when the victim of an offence which is personal to him accepts settlement from the perpetrator in lieu of prosecution. However the offences of kidnapping or abduction and armed banditry are not personal to the any particular victims. The whole society is a victim of kidnapping and armed banditry. They are offences which deal with the state of safety of the public and for which any member of the society could be a victim either by virtue of social standing in financial terms, or by virtue of mere membership of a particular tribe or group or merely by being a believer or practitioner of a particular faith or religion. Again the manner of carrying out of these offences involve the use of fire arms which only the State has prerogative over.
Moreover it is someway compounding of offence to fail to prosecute and punish kidnappers and arm bandits. In the case of PML (NIG) LTD v. FRN (2017) LPELR – 43480 (SC), 39-44, Paras. B-C the Supreme Court shed light on the concepts of compounding of offence and compounding offence in the following words:
"Compounding a crime" is defined in the same Black's Law Dictionary, 9th Ed., as follows
The offense of either agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution.
Compounding a crime is also "a criminal act in which a person agrees not to report the occurrence of a crime or not to prosecute a criminal offender in exchange for money or other consideration"
The offense is complete when there is an agreement to either withhold evidence of the crime, conceal it, or fail to
"Compounding of offences" on the other hand, is an act on the part of the victim, who decides to pardon the offence committed by the accused person, and requests the Court to exonerate him. This does not mean that the offence has not been committed;”
In Ramesh Chandara v. A.P. Jhaveri [A.I.R.1973 SC 84] the Indian Supreme Court made a profound statement which appears to shade light on the conspiracy of silence in the midst of the gruesome crimes and state of unrest in Nigeria today The Court held that an invisible permission to compound a compoundable and non compoundable offence is totally invalid.
Prevalence of an offence is another reason for the need for stiffer measures and sanctions to ensure deterrence. In the case of Onyilokwu V The State (1981) 2 NCR 49 where the offender was initially detained for causing hurt, and later, he unsuccessfully tried to escape and was additionally charged with escaping from lawful custody. Although he was later discharged and acquitted, the court expressed the view that three years imprisonment earlier imposed on him did not show adequate consideration not only for his first offender status, but also , for an offence which was not prevalent in the community. The rationale for reconsidering the sentence gives a clear indication that a prevalent crime should not be treated with kid gloves if such a society must survive the crime.
In the case of Olanipekmi V The State (1979) 3 LRN 204 1979 (alias junta manta), during a robbery, D the leader ordered one of his followers to shoot a victim. He complied but the gun did not go off. In sentencing him to five years imprisonment with hard labour, the court said:
‘’society demands that such a man should be kept out of circulation for some time-the offence is a serious one………’’
Similarly, courts have taken very serious view of the offences which injure or threaten the lives of citizens. In the case of R. v. Ozuloke Suit No.HU/4/47/C/71 (High Court Umuahia, Unreported) where the appellant met a little girl aged about eight years who was related to him on a village road, he covered her eyes with his hand and stuffed bread into her mouth to stop her crying out and took her into a bush, he laid her out on the ground, stood on her hand, poured acid over her body and cut off her left ear, he forced her eyes open and poured acid into them. He later ran away leaving the little girl unconscious. A twenty year jail sentence was considered adequate; the offence was regarded as being most revolting. What could be more revolting than the present state of widespread and indiscriminate possession of firearms and the attendance wanton crimes of kidnapping, molestation, killings, terrorism in all parts of the Country today.
Lastly the present prevalent state of armed criminality is direct affront on the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as mended) and undermines her territorial integrity, national unity and nationhood. Section 1 (3) of the Constitution of the Federal Republic of Nigeria provides that
“The Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.”
The history of rebellion and revolution all over the world began with proliferation of arms and unbridled state of crime associated with such arms as in the present state. Nigeria therefore cannot afford to treat the present state of crime and insecurity lightly under any guise. To do so will be a clear decision to ignore history and tore its path.
At the heart of the unabated state of the menace is the lack of political will and seriousness in prosecuting suspected or alleged offenders. A report in the Punch newspaper of March 9, 2013 had notably reported that “political observers” had noted that “no meaningful convictions” for kidnapping had been served even in states with laws prescribing capital punishment for kidnapping and relating offences. Also the All Africa of November 4, 2013 quoted then Edo State Governor as stating that the challenge is the enforcement of laws on kidnapping. It is in this regard that alot of political observers and commentators as well as members of the public do not seem to absolve the role of the present government in the state of insecurity in the country. While most peg their reason for the blame on the utterances of high profile government officers, others cite the docile attitude and near inactions as clear evidences of collusion.
Moreover there is the problem of complicity of government or political office holders and law enforcement agents with the suspects. A case in point is the most recent ugly incident in Taraba State involving the Army and the arrest of Hamisu Bala Wadume by the men of the IG Intelligence Response Team. It is surprising that no one directly took responsibility for the unfortunate incident nor did anyone get fired, notwithstanding the panel set up to invest the matter which again is another illegality.
There is also the problem of poor handling of prosecution by law officer or those from the appropriate authorities. Allied to this is the poor state of the judiciary with incompetent and compromised officers besides the usual issues associated with protracted trials.
The communal culture of shielding offenders or the lack of willingness to volunteer information by members of the public also encourage the offences.
In a presidential system of governance as ours, the executive arm seem to wield the greatest influence and coincidentally the state apparatus for enforcement of law and order at its whims and caprices. The President as the chief security officer must take responsibility for the security of the country and urgently deploy resources at his disposal to address this national emergency. In this regard, it does appear that there is urgent need to shed the security weight on the president by considering state police.
Closely related is the fact that the President appoints the chief law officer of the country under whose office the Department of Public Prosecution is. There is need to review the mechanisms of investigation and prosecution including their funding if the heads will not operate as appendages of political parties especially that in government or power which has been a huge set back. Recent events clearly buttress this fact. A law officer cannot be independent if such exists at the pleasure of a political office holder.
There is also the need to review judicial system with a view to creating a special courts with impeccable judges to attend to cases as under consideration to redirect the State. The usual courts are encumbered with so many cases which do not help criminal trials of this nature, as a result so much time is wasted and witnesses are discouraged from attending or prevented by virtue of relocation or even misfortunes affecting their availability or clarity of memory.
Moreover there is need for investigators and prosecutors to be professional and discreet in handling information in order to encourage informants and potential witnesses. Our system does not rely on hear say but no one will be willing to risk their lives where their identities are not protected or they are not offered any form of protection to volunteering necessary information. The public confidence must be secured if investigators and prosecutors are to make head-way. There is no suspected criminal who doesn’t have a confidant but no one would risk their lives only to find out afterwards that they did it for nothing.
Nigeria must also beef up its security equipment to enhance collation, preservation and documentation of evidences. This will greatly enhances investigation and narrow persons of interest to real suspects to avoid the usual general raid will end in no conviction."