While ‘Uncle P’ Guest House was demolished for allegedly harbouring and serving as a den for kidnapping kingpin, Kelvin Oniarah also known as Ibruvbe, who has been terrorising Delta, Edo, Rivers and Anambra States and was arrested by operatives of the State Security Service (SSS) last Wednesday, the residential house owned by the late Awhritoma was alleged to have been used by a kidnapping suspect, Anthony Agidi, a tenant in the house, to keep his victims.
It was learnt that some undisclosed properties have also been marked for demolition in Ughelli, Warri, Sapele and Asaba for the same offence.
The controversy surrounding the demolitions stemmed from complaints by owners of the properties that they were neither kidnappers nor aware that their properties were being used to keep hostages by kidnappers since a hotel is a public place open to all and sundry.
At the height of the kidnapping saga in the state in 2012, the state government, desperate to curtail the kidnapping scourge following the notoriety trailing the state as one of the least secure places in Nigeria and its inclusion in a United States security list from where its citizens are forbidden to go, had taken many measures in its fight against the evil act. One of these was the swift passage of a law prohibiting kidnapping and hostage taking.
The Delta State Anti-kidnapping and Anti-terrorism law passed by the Delta State House of Assembly was believed to have triggered the demolitions of the houses and other illegal acts undertaken in the name of fighting terrorism, as the relevant security agencies, desperate to redeem their battered images resorted to all manners of jungle justice.
The law prescribed death penalty for anyone involved in kidnapping and terrorism. It also empowered the governor to determine the means and place of execution within the state. Also, that any premises wherein a person is held against his/her will as hostage shall be forfeited to the government without the payment of compensation, except the circumstances of the case suggest otherwise.
The law also gave the governor or his representative power to sign an order authorising the sealing up of the premises that he reasonably suspects to be used to harbour persons held against their will, kidnapped persons or hostages held with or without the demand for ransom; and that the sealing of the premises shall remain in force pending the final determination of the application for forfeiture or revocation order by the governor.
But in the demolition of Uncle P Guest House and the family house of late Daniel Awharitoma, lawyers and human rights groups are querying whether government and its agents duly adhered to the provision of the Anti-kidnapping and Terrorism Law.
For instance, notable Ughelli-based lawyer, Chief Peter Wanogho, has instituted a case at the Warri High Court on behalf of the Awharitoma family whose house was destroyed in questionable circumstances after it was alleged to have been used to habour a kidnap victim.
The suit is challenging the Delta State government, Commissioner of Police, Speaker of the Delta House of Assembly, the Inspector General of Police and the Attorney of the Federation, all of whom are the defendants in the case, to answer the following constitutional questions:
Whether or not the Delta State government in the execution of the powers purportedly conferred on it by the Delta State Anti-kidnapping and Terrorism Law enacted by the Delta State House of Assembly, can validly authorise policemen under the command of the Delta State Commissioner of Police and the Inspector General of Police to whom the Attorney General of the Federation is their chief law officer, to demolish any premises “where a person is held hostage against his/her will” without the premises being first forfeited to the state government without “an order authorising the sealing up of the premises” reasonably suspected “to be used to harbour persons held against his/her will, kidnapped persons or hostages held with or without the demand for ransom and without a final determination of the application for forfeiture or revocation order by the governor” of Delta State, brought before a court of competent jurisdiction by Ochuko Daniel Awharitoma”.
And whether or not section 3 (4) of the Delta State Anti Terrorism Law, 2012, which made a blanket provision that “Any premises wherein a person is held against his/her will as a hostage shall be forfeited to the government without the payment of compensation, except the circumstances of the case otherwise suggests”, in respect of a premises owned by a person who is not a party to the kidnapping or aware that his premises was being used to hold persons as hostages and without the actual owner of the premises being given any hearing before the purported order of forfeiture of the premises, does not violate the provisions of section 36 (1), (2) (a) & (4) and section 44 (1) (a) & (b) of the constitution of the federal Republic of Nigeria, 1999 (as amended) and therefore amounts to a flagrant breach or violation of the fundamental rights of the innocent owners of the premises to “be forfeited to the government without the payment of compensation?”
According to Wanogho, the demolition of the plaintiffs’ buildings on June 10, 2013 without their being first forfeited to government and sealed off; and without a valid order of forfeiture of the said premises and payment of compensation to the plaintiffs, who are not in any way connected to the alleged act of kidnapping or the premises being used to hold hostages is contrary to the provisions of section 3 (4), (5) & (6) and 16 (2) of the Delta State Anti Kidnapping and Anti Terrorism law, 2012 and sections 36 (1), (2) (a) & (4) and 44 (1) (a) & (b) of the constitution of the federal Republic of Nigeria of 1999 as amended. The act is also unlawful and amounts to a flagrant breach and violation of the plaintiffs’ fundamental rights.
The Awharitoma family is therefore demanding eleven million, six hundred and sixty-nine thousand, four hundred and thirty seven naira as damages and another fifty million naira as exemplary damages for the wrongful, illegal, and unconstitutional flagrant breach and violent violation of the plaintiffs’ fundamental rights. They also sought an order of perpetual injunction restraining the defendants or their agents from further carrying out any act detrimental to the plaintiffs’ rights over the premises.
The Delta State Police Command has, however, absolved itself of blame in the alleged illegal demolitions. The Police Public Relations Officer (PPRO), Lucky Uyabeme, told The Guardian that the order approving the demolition of the said houses was a security decision reached during the state security meetings attended by all the heads of the security agencies and government officials. He added that a combined team of the Police, Army, Navy and other relevant government agencies and not just the police carried out the demolition exercise.
The eldest son of the late owner of the house, Akpbor Daniel Awharitoma, said the demolition was shocking and illegal, adding there was no time the children and the two widows of the late owner were aware that the apartment let out to the late Mrs. Comfort Agidi, was being used by her son, Anthony Agidi, a kidnap suspect, to keep a hostage.
Describing the demolition as jungle justice, Human Rights lawyer and national coordinator of the Forum for Justice and Human Rights Defence, (FJHD), Oghenejabor Ikimi, apparently miffed by the non-adherence to the provisions of the Anti-kidnapping law by the state government in the demolition of both houses said: “We members of the Forum For Justice and Human Rights Defence, do hereby call upon the Delta State government to observe the strict provisions of Section 4 sub sections 4 & 5 of the Delta State Anti-kidnapping and Anti-terrorism Law, which empowers the governor or his representative to sign an order authorising the sealing up of any premises that he reasonably finds to be used to harbour persons held against their will, kidnapped persons or hostages held with or without demand for ransom, pending the final determination of the application for forfeiture or revocation order by a competent court.
“We note with dismay that some residential houses including a hotel were recently demolished on the orders of the state government without recourse to the provisions of the above Law. We submit without fear or favour that the above action of government amounts to jungle justice and a cure worse than the disease. As such, we call on the Delta State government to respect the rule of law in its fight against all forms of criminality in the state.
In the same vein, Wanogho has urged anyone whose house or houses have been destroyed or demolished to test the law because constitutionally, such houses cannot be destroyed without committing a criminal offence and without government taking possession of them.
He said that the idea of destroying any building inhabited by kidnappers or used, as a base for kidnap victims is not proper, stressing that the law is meant to serve the interest of the people and not to oppress them.
Said he: “in the situation where a kidnapper is a tenant in a compound where the landlord is not resident, and is therefore innocent because he/she is unaware that such heinous activity is going on in his/her house…. Is the landlord then the offender? Is the landlord involved in kidnapping? Why should the house be destroyed because a tenant happens to be a kidnapper?
“Is there any machinery with which a landlord can detect the criminality of his tenant? If there is such in Nigeria, then Boko Haram won’t operate because it would have been used to discover members of the sect in Maiduguri and they would be easily fished out. And if government does not have such machinery, how can it then be possible for an individual landlord, the owner of a building to know that his/her tenant is involved in kidnapping?
“Criminality is not written on the forehead because it is a thing of the mind and the criminal law punishes an offender. And who is an offender? Those who aid in the commission of the crime, those who counsel the commission of the crime and those that aid after the commission of the crime are regarded as offenders.
“In this case, however, they punished a man who never participated in any way in the commission of the crime. His only offence is that he built a house and let it out to a person, who happens to be involved in a crime. Even if the kidnapped victim is taken to a house so hired, does that make the landlord an offender? And if the house is demolished, has the weight of the criminality been visited on the actual criminal? Or should the brunt of the criminality now be borne by an innocent landlord who let out his house?
“If government could provide the machinery for landlords, whereby all potential tenants are brought to a screening machine to test their criminality to know who is capable of committing what crime, then that law would be justifiable. But the law, I dare say is barbaric. Criminal responsibility is personal and not transferable. You cannot punish a man for a crime he has not committed. The demolition of houses of persons who are not criminal just because their houses are inhabited by criminals is a bad law; a bad piece of legislation that should be condemned. Nobody is taking sides with criminals, but let the innocent citizens not get punished for an offence they did not commit.
“Take for example the demolition of the hotel in Abraka. The criminals allegedly involved in the kidnapping have not been caught, yet the house of the hotel owner has been demolished. What crime has the hotel owner committed? Is a hotel not a public resource centre where anybody can lodge? Any law that punishes an innocent man in the 21st century is not only anachronistic but is barbaric and why should we be Barbarians in Nigeria?”
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