Lawyers Condemn Bill Seeking to Criminalise Ransom Payment

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Obviously worried by incessant cases of kidnapping for ransom, which has become a cash cow for criminals, Nigerian Senate decided to search for a solution. And in doing that, the lawmakers settled for a bill, which would make payment of ransom a criminal offence when passed into law.

In the mind of the lawmakers, criminalising ransom payment would be the best option to tackle the evil, which has become a horrendous national tragedy, since security agencies have been overwhelmed by the transgressors.

Senator Ezenwa Onyewuchi from Imo State introduced the bill. The bill, titled Terrorism Prevention (Amendment) Bill 2021 has already scaled through the second reading. It is an attempt to amend the Terrorism Act.

The bill, which seeks to substitute Section 14 of the Principal Act, reads: “Anyone who transfers funds, makes payment or colludes with an abductor, kidnapper or terrorist to receive any ransom for the release of any person who has been wrongfully confined, imprisoned or kidnapped, is guilty of a felony and is liable on conviction to a term of imprisonment of not less than 15 years.”

Interestingly, there is no provision in respect of the measures to be taken to free abductees from captivity, which would relief loved ones from the agony of looking for money to pay ransom.

Reacting to the issue, former director general of the Nigerian Institute for Advance Legal Studies (NIALS), Prof Epiphany Azinge (SAN) said the whole idea sounds disturbingly preposterous and finds no justification in criminology or criminal jurisprudence.

According to him, the victim in modern criminology is deserving of compensation or restitution and not ancillary punishment either directly or by proxy. “Criminalising payment of ransom is tantamount to ancillary punishment of the victim. Our law recognises self-defence as a tool available to a suspect in certain circumstances. Payment of ransom should be viewed from that prism. A legal system that upholds self-defence ought not and should not criminalise payment of ransom. It just does not add up,” he insisted.

He argued that a deeper and more profound analysis should focus on the role of the State in the protection of her citizens and the consequences of not being alive to their responsibilities. According to him, when the State fails in its constitutional obligations, the State and not the citizens should suffer the consequences. The bill, he declared, is dead on arrival. “No need promoting a law that will be honoured more in the breach than observance,” he stated.

Lagos-based lawyer, Stephen Azubuike, who said he has not seen a copy of the bill regretted that certain approach by Nigerian leaders are inexplicable. “First, how do you explain to the common man who desperately needs to pay ransom to secure his or her release or the release of a beloved family member or friend from captivity that doing so is a crime when the government has woefully failed in their core mandate to protect lives and properties?

“Second, we are not oblivious of what the government tries to achieve since it appears kidnapping and ransom-paying is becoming a lucrative enterprise. However, in using the instrumentality of the law to attempt to curb the menace, the Government should think of more proactive steps through intelligence gathering, competent and prompt intervention by law enforcement agencies to counter the syndicates,” he suggested.

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Edoba Omoregie, a Professor of Comparative Constitutional Law/Legislative Governance, and Head, Legislative Support Services at the National Institute for Legislative and Democratic Studies (NILDS), Abuja said the proposal to prescribe punishment for ransom payment is an unnecessary legislation.

He said: “Actually, my first reaction to the Senate’s proposal to criminalise payment of ransom in the event of kidnapping is that the National Assembly should not be involved in such matters. It’s a mistake for them to get involved in prescribing sanctions for such a crime, except they are doing so only for the Federal Capital Territory (FCT). By the provisions of the Constitution, the National Assembly can only legislate for the FCT, including codifying crime and prescribing sanctions or punishment for crimes committed within the FCT.

“However, the State Houses of Assembly are solely empowered by the Constitution to legislate in similar circumstances in their respective states. Therefore, I am sure the Senate’s proposal of 15 years imprisonment for ransom payment will apply only to the FCT if the House of Representatives concurs, and the President assents to the proposed legislation.”

The don argued that the purpose of legislation is to provide a legal framework for achieving a particular purpose in the overall interest of society, adding that if what is being legislated will not enhance society, the legislation is unnecessary.

According to him, the current concern nationwide is for government to stamp out kidnapping and other crimes, which have made life unbearable for Nigerians. There is no proof that payment of ransom, he argued, is the cause of kidnapping, or responsible for its increase in recent years.

“From all the indicators, kidnapping has become rife because the security network of the country is overwhelmed by the sheer enormity of criminal activities spread across the country. The empirical evidence is that the police are short of personnel, challenged by inadequate logistics, over centralised and poorly motivated. These problems are far more responsible for the increase in crimes, including kidnapping. The nation is therefore anxious to see actions being taken in the direction of redressing those identified challenges, not focusing on a fringe issue like ransom payment.

“I will therefore advise that the Senate’s legislative proposal should be dropped. It doesn’t help matters. Ransom payment will not happen if the police can effectively apprehend kidnappers, or if the enabling environment is not conducive for the nefarious activities of kidnappers,” the law teacher declared.

Also, former Dean of Law, Lagos State University (LASU) and a constitutional law consultant, Prof Mike Ikhariale, described the bill as an outrageous legislative proposal. He wondered how a law would directly punish victims of kidnapping and enrich the same government under whose watch the criminality is booming.

“That kidnappers are having a field day picking Nigerian citizens like chickens everywhere is only an indication of the extent of the government’s failure to protect her citizens, which is a constitutional duty they have failed to perform. In all societies where governments are attributed with some modicum of responsibility, it is actually the prerogative of the citizens to demand appropriate redress from the government for a fundamental breach of the social contract between her and the people as articulated under the Constitution because of her inability or failure to fulfill her obligations that are clearly set out in the Constitution,” he said.

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The former visiting fellow, Harvard Law School declared that the proposed law is attempting to turn logic on its head by legislatively subjecting victimised families to jeopardy. The people, he explained, pay ransom to their captors because the government could not save them.

“We all saw how the U.S. government came into Nigeria and retrieved their kidnapped citizens from our forest not too long ago. What a travesty of the legislative process?” He wondered.

Kano based lawyer, Abubakar Sani is of the view that the law, if passed would only apply to Abuja, by virtue of the fact that the National Assembly can only legislate such a general criminal law for the FCT. Sani cited the case of Bode George vs. FRN to drive home his argument that kidnapping is not in the Exclusive Legislative list of the Constitution.

According to him, it is an effort in futility, if the law is passed. “Who will ever openly admit that he or she paid a ransom to secure the freedom of an abductee? Once such a law is passed, such news will, predictably, become merely the stuff of gossip, thus driving it underground. The essence of a law is the level of compliance or deterrence, which it attracts or commands. This one is likely to be observed more in the breach.

“It is an implied or tacit admission that our law enforcement and security agencies have failed to prevent the tide of kidnapping, which has spread throughout the country.

Besides, even if such ransom payments are conceived of as ‘business transactions’, the National Assembly is incompetent to regulate them, having regard to the provisions of Item 62 of the Exclusive Legislative list of the Constitution, which limits the Assembly’s trade and commerce remit to registration of business names, inter-state trade and international trade,” he argued.

Expressing disappointment over the development, Lagos-based lawyer, Ms. Lotanna Dim said the government has failed woefully to provide its people with adequate security, therefore subjecting Nigerians to inhumane conditions of fear and lack of safety.

“I find the proposed bill to be like an act of terrorism against the citizens of Nigeria. Rather than focus their efforts on seeking ways to help improve and train law enforcement officials to better execute their objectives in the face of the rampant kidnappings ravaging the country, the legislators would rather punish innocent citizens trying to save their loved ones the only way they can,” she said, adding that the bill is tantamount to inhuman and degrading treatment of citizens, which the constitution forbids.

Also contributing, the Publicity Secretary of the Nigerian Bar Association (NBA), Dr. Nduka Rapulu said the reasoning of those behind the bill saddens the heart.

“It makes one wonder if we have leaders that really care about the nation they claim to lead. We have a penchant for proffering short-term solutions to major issues plaguing the country. Our Senators are not even talking about policies that will strengthen the security structures.

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“The rise in kidnapping points to the failure of our security structures. Every jurisdiction is under a police structure and other security outfits. It is quite sad that our security agencies are more interested in mounting roadblocks, harassing innocent civilians and cringing in fear when their main responsibility of protecting the masses shows up.

“The Senate will not call those in charge of these structures to order. They will rather wail on the floor of the Senate and proffer anti-people solutions that further punish the masses. Who likes being kidnapped? Who likes paying ransom especially in the current terrible economic situation the Senate allowed this nation slide into?” he asked.

According to Rapulu, one would have hoped that the Senate would come up with jail terms for the security agencies that fail to perform their role. But nobody, he said, seems to take responsibility in Nigeria.

His words: “Are our Senators afraid of doing the right thing? Must the hapless Nigerian be made to pay for the incompetence of our security agencies? Are our Senators not aware that in most kidnap situations, the Police are only on hand to receive the kidnap victim after the ransom has been paid, with the Police pretending to have played some meaningful role?

“One wonders if an average Nigerian will give ransom just for the fun of it? People beg to raise ransom because our security agencies are incapable of performing the primary function they are paid to do.

“It is sad that our National Assembly keeps making anti-people laws. Members of the National Assembly should remember that they were elected to represent the people. Our leaders should learn to resign when they have nothing to offer.”

Saying that payment of ransom to terrorists is illegal under the UK Terrorism Act 2000 and also in the U.S., Benin-based lawyer, President Aigbokhan, explained that those countries have very low kidnapping rate and sophisticated security infrastructure.

His words: “Agreed that the continuous payment of ransom must not be encouraged, but government must provide adequate security and strengthen the economy as a long term response to insecurity. We have sufficient laws to respond to kidnapping but providing punishment for ransom is not a proactive anti-kidnapping strategy.

“The state owes a duty to its citizens to protect their lives and properties. Should people abandon their loved ones because the government failed to perform its primary responsibility or should citizens be punished for plugging the governance gap? Lastly, should punishment for kidnaping attract the same punishment for ransom payment?”

Aigbokhan concluded that the government seems to be more comfortable in blaming her citizens for the insecurity in the country. He enjoined citizens to also trust the government and report kidnapping incidents to them, believing they can rescue victims without the financial burden of paying ransom on the family.

“We must be patriotic and responsible to believe that the law is in good faith. Very importantly, CSOs must swiftly open register to record incidents of kidnapping and tick the box on government response in terms of time of action, inter-security collaboration, persons arrested and state of the rescued,” he suggested.

The Guardian


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