Imagine that you have a start up which seeks to develop an artificial pancreas in the hopes of curing diabetes and you make some progress in the process, which is actually scaleable and you get venture capital funds for your start up and you are able to create drugs, as well as the artificial pancreas. Surely, that would be lovely. It would be both creating a business and solving a unique indemic problem in the global community.
Now imagine on the other hand that you or someone you know has a group of friends who go out with actual ammunition to kidnap innocent humans, damage their vital organs while applying physical force to hold them captive, and succeed in coercing their friends, family members and/or employers into paying them monies in order to fund their release. That would in actual fact be kidnapping, assault and coercing involuntary terrorism financing all rolled into one.
Article 1 of the International Convention against the Taking of Hostages of 1979 though yet to be ratified and/or harmonised into Nigerian law provides a helpful definition as to what constitutes hostage taking as follows:
Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the ‘hostage’) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking hostages (‘hostage-taking’) within the meaning of this Convention.
Criminal assault has been defined in section 252 of the Criminal Code Act 2004 as follows:
A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without his consent, or with his consent, if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
Tom C. W. Lin defines terrorism financing has been defined in the following terms the provision of funds or providing financial support to individual terrorists or non-state actors.
The recent spate of kidnaps, not limited to the kidnap of 40 students in Niger state, students in katsina state, the chibok girls in Yobe and so many others have indeed shaken citizens of Nigeria. Certain militant groups may have been known to raise funds through the mass kidnapping of foreigners and civilians for ransom and these activities may have inspired the senate to rise to the occasion of dealing with the issue via a bill. Of course, with the spate of kidnaps, we would be worried if the government had not taken any steps whatsoever to solve this problem.
Recently, the senate brought up a bill to criminalise payments for ransom. The Terrorism Prevention (Amendment) Bill 2021, which is sponsored by Senator Ezenwa Onyewuchi, presently seeks to amend the Terrorism (Prevention) Act, 2013. Section 14 of the Amendment Bill provides as follows:
“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.”
While the above provision will make felons those who voluntarily intend to finance terrorism activities, it also seems to thrust the responsibility of preventing terrorism financing on the victims’ benefactors to desist from funding kidnappers to a certain extent, as opposed to putting the same on the federal government to place efficient systems in place to avoid, as well as deal with the spate of kidnappings.
The basis of the criminalisation of payments for ransom lies in the fact that making such payments amounts to being an accessory to a criminal act. It means the payer is in a way benefiting from that crime, which would be the release of the victim, never mind all the trauma and anguish that they would have already faced. Obviously, in that instance, it cannot possibly be called a benefit. Things like duress and undue influence constitute acts that would vitiate any mens rea to participate in such ‘kidnap’ contracts, and in the realm of kidnappings such should be so considered to make nonsense of the aforementioned provision of the proposed bill with regard to the victims’ family members and benefactors.
In contract law, a criminal is not supposed to profit from his criminality, however anyone that gives out money to secure the release of a kidnap victim under duress, will not possess the mens rea to be held guilty of the said crime.
The Senate must strive to ensure the balance between solving the problems of terrorism and kidnap with an extreme upper hand and ensuring that the sufferers of this dastardly act are not wrongly classified as perpetrators. We must not be insensitive to the plights of the people or their families, especially where the system of response to the recent kidnaps leaves much to be desired. The truth is so long as there is a lacuna in the security issues of Nigeria, a lot of these people will feel pushed to the wall to get their family members out. If we really think about it, no individual in his right mind would go about willingly trying to pay ransom fees for kidnaps with their hard earned money.
The government must go beyond making laws to putting in accountability measures to ensure that the funds budgeted for national security, with regard to countering terrorism, equipping the military, as well as kidnap and response teams with sophisticated intelligence trainings to deal with such cases, create systems to ensure kidnap prevention and so forth are actually utilised for those purposes.
It is also very clear that the Nigerian government in the past may have paid ransoms for kidnaps without expressly acknowledging the same. This makes redundant the effort of criminalising the payment of ransoms, and shows a general unwillingness to address the elephant in the room, which is the state of security in the nation. While we are deciding as a policy not to pay ransoms, we only need to back it up with the requisite intelligence and security units. This issue might seem complicated, but at the same time, it is quite simple.
Wherein this law is enacted with no corresponding structure to effectively free the victims of kidnap, the government may continually feed the impression of being insensitive and not being completely able to tackle the situation at hand.
The conclusion of this discourse is that criminalising ransom payments in the case of kidnaps is not tackling the issue in its entirety.
References:
- Criminalising Ransom Payment, https://www.vanguardngr.com/2021/05/criminalising-ransom-payment/ (accessed May 31, 2021)
- The Terrorism Prevention (Amendment) Bill 2021
- C. W. Lin, Financial Weapons of War, Minnesota Law Review, Vol. 100, p. 1377, 2016
- Criminal Code Act, Cap C38, Laws of the Federation, 2004
- International Convention against the Taking of Hostages of 1979
Ose Binitie is a seasoned practising lawyer with an LLM Commercial and Corporate law from Queen Mary University of London. She has appeared as counsel and provided legal advice for multinational corporations, private investors and has also written legal opinions and papers on due diligence, mergers and aquisitions, private equity and venture capital, and other areas of finance and investments. For inquiries, you can reach Ose at osebinitie@gmail.com
