Is Kidnapping for Ransom Simpliciter Terrorism?
IIntroduction ncidents of kidnapping for ransom have become so rampant, that it is no exaggeration to say that is now almost a national security issue. While no part of the country is immune to the menace, the Abuja-Kaduna Expressway, Lagos and some South-Eastern States, appear to be particularly hard-hit. The development has seen a rash of new laws passed by some State Houses of Assembly, in response. However, what appears to have escaped public attention thus far, in my opinion, is a federal law, Section 15 of the Terrorism (Prevention) Act, 2011 as amended, which prescribes life sentence for the offence. It is doubtful, if any state law on the subject is this harsh. To my mind, the larger question is, whether the National Assembly is competent to enact this law. Can both Federal and State Laws on kidnapping for ransom co-exist? If not, which legislature, Federal or State, is competent to enact such laws? We shall presently attempt some answers.
What is kidnapping? The Macmillan English Dictionary, 2nd Edition, page 827, defines ‘kidnapping’ as “to illegally take someone away and make them a prisoner, especially in order to make their family or government give you money or allow you to do what you want".
The Legal Framework for Kidnapping In Nigeria, kidnapping, either for ransom or otherwise, has historically been a state offence. Examples in this regard include Sections 260, 272 and 273 of the Penal Code in force in the nineteen Northern States, which provide as follows, respectively:
260: “Whoever wrongfully confines any person for the purpose of extorting from the person confined or from any person interested in the person confined any property or document of title or of constraining the person confined or any person interested in such a a person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine.”
272: “Whoever by force compels or by any deceitful means induces any person to go from any place, is said to abduct that person.”
273: “Whoever kidnaps or abducts any person shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to a fine.”
Similar provisions are contained in the Criminal Code, applicable in the seventeen Southern States.
Kidnapping As A Federal Offence In addition to the foregoing and other state laws, several Federal laws criminalise abduction and kidnapping in Nigeria. They include the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003, the Child Rights Act 2003 and the Terrorism (Prevention) Act 2011 as amended. Section 19 (1) of the first law (otherwise known as the NAPTIP Act) provides, inter alia, that:
- “Any person who confines or detains another person in any place against his will or otherwise unlawfully deprives another person of his personal liberty commits an offence and is liable on conviction to imprisonment for five years or to a fine of N100,000 or both.” - “Any person who by force compels or by any deceitful means induces any person to go from any place, commits an offence and is liable on conviction or to a fine not exceeding N200,00 or both.”
Sections 27 and 47 of the Child Rights 2003 make similar provisions as follows, respectively:
- 27: No person shall remove or take a child out of the custody or protection of his father or mother, guardian or such other person having lawful care or charge of the child against the will of the father, mother, guardian or other person. A person who contravenes this provision commits an offence (and is liable on conviction to imprisonment between 7 and 20 years)”.
- 47: “A person who knowingly and without authority or reasonable excuse takes or keeps a child (who is in care, the subject of an emergency protection order or in police protection) away from the person responsible for the child or induces, assists or incites such a child to run away or stay away from the person responsible for the child commits an offence and shall be liable on conviction to a fine not exceeding N70,000 or imprisonment for a term not exceeding three years or to both such fine and imprisonment.”
The third federal law, Section 15 of the Terrorism (Prevention) Act, as amended provides thus: (1) Any person, who knowingly -
(a) seizes, detains or attempts to seize or detain
(b) threatens to kill, injures or continues to compel a third party to do or abstain from doing any act, or
(c) Gives an explicit or implicit condition for the release of the person held hostage, commits an offence under this Act and is liable on conviction to life imprisonment.” Subsection (2) of the Section defines a “third party” used in subsection (1) as “a State, an international governmental organisation, a natural or legal person or a group of persons.”
Neither “State” nor “International governmental organisation” are defined in the Act, but we can safely assume that the former refers to a sovereign State, as opposed to one of the 36 States of Nigeria.
Should Kidnapping for Ransom Simpliciter be Terrorism?
To the extent that in terms of kidnapping for ransom, Section 15 of Terrorism (Prevention) Act applies across the board to States, International Governmental Organisations, as well as natural and legal persons, I believe that it is problematic. This is because, the National Assembly lacks the vires to make such provisions. This view necessarily calls for an examination of the powers of the Assembly, particularly in respect of criminal offences.
It has been established since DOHERTY v BALEWA (1961) 2 NSCC 248 @ 259, that the National Assembly can only legislate for the Federation, on matters in respect of which it has been specifically empowered by the Constitution.
This was affirmed in relation to criminal offences, in GEORGE v F.R.N. (2011) 10 NWLR pt. 1254, pg. 1, where the court held that the National Assembly cannot legislate for a criminal code applicable across the country, but only for the FCT, Abuja, by virtue of its status, as the Legislature of the FCT (under Section 299(a) of the 1999 Constitution). Apart from this, the only circumstances in which the Assembly can enact criminal laws applicable across Nigeria, are if such laws are “incidental or supplementary” to any matter mentioned in the Exclusive Legislative list, within the contemplation of Items 60(a) and 68 of that List as well as Paragraph 2(a) of Part III of the Second Schedule to the Constitution. These constitutional provisions, validate the inclusion of ‘State’ and ‘International Governmental Organisation’ within the ambit of Section 15 of the Terrorism (Prevention) Act as aforesaid.
The implication of the foregoing, is that only State Houses of Assembly are competent to legislate in respect kidnapping which does not involve a foreign State or International Governmental Organisation. This is because such species of kidnapping, are within the Residual Legislative List of the Constitution in respect of which only States are competent legislate. See ATTGEN OF ABIA STATE v ATT-GEN. OF THE FED. (2006) 16 NWLR pt. 1005 pg. 265 @ 380 and HON. MIN. OF JUSTICE & ATT-GEN OF THE FED. v ATT-GEN. OF LAGOS STATE (2013) ALL FWLR pt. 704 pg. 1 @ 91B.
In making this submission, it might well be asked whether the aforesaid provisions of the NAPTIP Act and the Child Rights Act, are not also ultra vires the National Assembly for the same reason. That would be a valid question. However, the saving grace for the anti-kidnapping provisions of these laws is Item 60(a) of the Exclusive Legislative List of the Constitution which empowers the National Assembly to “establish and regulate authorities for the Federation or any part of thereof to promote and enforce the observance of the Fundamental objectives and Directive Principles of State Policy” contained in the Constitution. It was in exercise of this power, that the National Assembly established the National Agency for the Prevention of Trafficking in Persons, National, State and Local Government Child Rights Implementation Committees, as well as the Family Division of the High Courts, i.e., pursuant to Section 17(2)(b), (f)&(h) of the Constitution which expresses the Fundamental Social Objectives of the State. But for these constitutional provisions, the anti- kidnapping provisions of the NAPTIP Act and the Child Rights Act, would have been ultra vires the National Assembly.
Conclusion Our legislators should resist the temptation to overreact, in responding to emerging threats to either our collective or individual security, recognising that if a malady is misdiagnosed, the cure is often worse than the disease. Accordingly, they must be adroit in exercising their legislative powers, to ensure that they don’t exceed their constitutional remit. To the extent that the Terrorism Act purports to apply to kidnapping for ransom in respect of non-Sovereign natural and artificial persons across Nigeria, it is ultra vires the National Assembly. It is only applicable in Abuja. In a nutshell, kidnapping for ransom, without more, is no more a terrorist act than is similar hate speech.
"TO THE EXTENT THAT, THE TERRORISM ACT PURPORTS TO APPLY TO KIDNAPPING FOR RANSOM IN RESPECT OF NONSOVEREIGN NATURAL AND ARTIFICIAL PERSONS ACROSS NIGERIA, IT IS ULTRA VIRES THE NATIONAL ASSEMBLY. IT IS ONLY APPLICABLE IN ABUJA. IN A NUTSHELL, KIDNAPPING FOR RANSOM, WITHOUT MORE, IS NO MORE A TERRORIST ACT THAN IS SIMILAR HATE SPEECH"