Nigerian Attorney General Malami and Justice Kafarati Vulnerable to Genocide Prosecution for Illegally Listing IPOB as a Terrorist Organization

By Bruce Fein, Contributor Constitutional Scholar

On September 20, 2017, Nigeria’s Attorney General Abubakar Malami and Acting Chief Judge of the Federal High Court Justice Abdul Adanu Kafarati secretly collaborated in issuing a flagrantly illegal order proscribing the Indigenous People of Biafra (IPOB) as a terrorist organization to provide Dictator Muhammadu Buhari a pretext for genocide against innocent civilian Biafrans because of their Christian religion or ethnicity.

But neither judges, nor attorneys general nor lawyers are shielded from prosecution for genocide or crimes against humanity before the International Criminal Tribunal. The principle that judges or prosecutors can be prosecuted for participation in the enforcement of illegal laws or the issuance of illegal orders that further genocidal objectives was established at Nuremburg in The Judges Trial sub. nom. United States of America v. Josef Alstotter, et al.( Military Tribunal III).

Even non-lawyers would recognize that Justice Kafarati order violated fundamental principles of civilized justice.

It was issued without notice to IPOB.

It was issued without offering IPOB an opportunity to respond.

It was issued after a secret meeting between Attorney General Malami and Justice Kafarati.

It was issued by a tribunal which notoriously operates as an arm of the executive branch through bribery or intimidation.

Victims of the barbaric Spanish Inquisition enjoyed more procedural safeguards against injustice and error than IPOB was provided.

The order was issued under the Terrorism Prevention Act of 2011 which defines terrorism, among other things, as an act or speech which “may seriously harm or damage [Nigeria]…” No actual harm or damage need be proven. An excited imagining of the conceivable is sufficient. Moreover, the definition absurdly transforms the exercise of fundamental human rights into terrorism. Under the 1948 Universal Declaration of Human Rights, IPOB commands a right to freedom of opinion and expression and freedom of peaceably assembly and association. Yet Justice Kafarati’s terrorism order was provoked by IPOB’s peaceful protest of Hausa-Fulani persecution of Igbos and association to obtain a Biafran self-determination referendum. That is the same right Great Britain has recognized for Scotland and Canada has recognized for Quebec.

It speaks volumes that no other nation has listed IPOB as a terrorist organization, including the United States and the United Kingdom. And no civilized system of justice condemns free speech and association as terrorism. In the United States, terrorism is generally confined to the use of force and violence to intimidate a civilian population or to coerce government behavior. In addition, the law in the United States provides listed international terrorist organizations with a right of judicial review before impartial tribunals; and, the Secretary of State is saddled with an obligation to periodically review every listing to determine whether they remain appropriate.

Skeptics of the ongoing Hausa-Fulani genocide of Igbos point to the general absence of public reporting on the indiscriminate killings and torture. But journalists or publishers rightfully fear that publicizing the genocide would provoke immediate and lethal retribution by Dictator Buhari and his Hausa-Fulani armed forces. The available photographic and video evidence of the genocide is convincing even without independent reporting.

History is instructive. Nazi Germany did not respect freedom of the press at their extermination camps like Auschwitz or Dachau. Holocaust claims were initially disbelieved because independent reporting was unavailable. The full truth emerged only belatedly after the Third Reich had collapsed and the death camps were occupied by the Allied Forces.

Participants in torturing the law to facilitate or encourage genocide should recognize their vulnerability to criminal prosecution before the International Criminal Tribunal. They should learn from the Nazi example.