SB 118: Abduction, Wrongful Restraint and Conferment Bill, 2016

Bill Analysis:

SHORT TITLE

Abduction, Wrongful Restraint and Conferment Bill, 2016

OBJECTIVE OF THE BILL

The objective of the Bill is to:

• Provide for the punishment of the offences of abduction, wrongful restraint and wrongful conferment for ransom

NUMBER OF CLAUSES/PARTS

The Bill has 15 clauses including interpretation and citation; and a schedule.

APPLICATION

The Bill shall apply to an act with intent to hold any person for ransom, abduct or wrongfully restrain or confine a person against their will for a ransom

GENERAL PROVISIONS OF THE BILL

Offences and Penalty

1. Abduction, Wrongful Restraint, Bodily Harm: -

• Whoever is guilty of an offence of abduction with intent to hold any person for ransom or wrongfully restrains or wrongfully confines any person, shall be punished on conviction with life imprisonment without option of fine.
• Whoever is found guilty of an offence which resulted in serious injury to the abducted victim shall be punished on conviction with life imprisonment without;
• Whoever is guilty of the offence that resulted in the death of the victim, shall be punished on conviction by death sentence;
• Whoever conspires to commit the offence is guilty of an offence and on conviction shall be sentenced to life imprisonment (Clause 1).

2. Receipt of Ransom: -

Whoever receives, has possession of or disposes of money or property or any proceeds thereof, which has at any time been delivered as ransom in connection with any offence punishable in accordance to the provisions of this Bill (when it becomes law), having knowledge that such money or property has been delivered as ransom, shall be guilty of an offence and shall on conviction be imprisoned for a term which may extend to 30years with hard labour.

3. Negotiation for Ransom: -

Whoever knowingly negotiates or assists in any negotiation to obtain any ransom for the release of any person who has been wrongfully restrained or wrongfully confined, shall be guilty of an offence and on conviction shall be liable to a term, which may extend to 30 years with hard labour (Clause 3).

Whoever knowingly negotiates or assists in any negotiation to pay or pays for the release of any person who has been wrongfully confined shall be guilty of an offence and on conviction be liable to a term, which may extend to 20 years.

4. Power to Freeze Bank Account: -

The Inspector General (IG), where he is satisfied that it is likely that the ransom for the release of any abducted person may be paid out of any bank, shall have the power to direct such bank in Nigeria not to pay any money out of an account or pay cheques drawn on such bank account for a specified period not exceeding one month (Clause 4). Any bank officer, who complies with the directive by the IG, shall be relieved of any liability to any person in respect of the payment prohibited by such order.

Any manager of a Bank who fails to comply with such order shall be guilty of an offence and shall be liable on conviction to a fine not exceeding N100,000 or to imprisonment for a term not exceeding 5 years or both.

5. Order to Authorize Inspection: -

Notwithstanding the provisions of any enactment, the IG may by order, authorize the police to inspect any books, accounts, records, receipts, vouchers or other documents, if he considers that there is evidence of the commission of an offence or a conspiracy to commit an offence or an attempt to commit an offence or an abetment of such offence by a person, likely to be found in any document, in respect of payment of money or release of property relating to such person. The police officer so authorized may, at all reasonable time, enter any premises specified on such order and inspect the books, vouchers or document and may take copies of any relevant part (Clause 5).

Any person who fails to produce any such book, account, voucher or document which is in his possession or control shall be guilty of an offence and shall be liable on conviction to a fine not exceeding N100,000 or to a prison sentence.

6. Information:

In the course of any investigation or proceeding into or related to an offence by any person under this Act or of a conspiracy to commit or an attempt to commit or an abetment of such offence, the Attorney may by order:

• require such a person to furnish a statutory declaration enumerating all movable or immovable property belonging to or possessed by such person, the spouse or children with dates of when the property was acquired, and how it was acquired (purchase, gift, etc.);
• require such a person to furnish a statutory declaration of any money or property paid or disposed of by him during such period as may be specified in the order;
• require any other person to furnish a statutory declaration enumerating all movable or immovable property belonging to or possessed by such person where the Inspector General (IG) has reasonable grounds to believe that such information may be relevant to the investigation or proceedings;
• require the person in charge of any department, office or establishment of government of the president, chairman, manager or chief executive officer of any public body to produce any document which is in their possession;
• require the manager of any Bank to give copies of any document of such person or the spouse or child at the bank.

Notwithstanding any legislative enactment or oath of secrecy to the contrary, every person who receives an order by the Inspector-General, shall comply with the terms of the order within such specified time. Any person who willfully neglects or fails to comply shall be guilty of an offence and shall be liable on conviction to a fine not exceeding N100,000 or to imprisonment for a term not exceeding one year or to both.

7. Duty to Inform the Police: -

Notwithstanding the provisions of any enactment or law, any person who is aware of the commission of or the intention of any other person to commit an offence under this Bill (when passed into law), shall in the absence of a reasonable excuse, bear the burden of proving that he was not aware of the commission or intention as the case may be (Clause 7).

Any person bound to give any information under Paragraph 1 of Clause 7, who fails to do so in accordance with the provisions of this Bill (when it becomes law), shall be liable on conviction to a fine not exceeding N100,000 or to imprisonment for a term not exceeding one year or both.

8. Power to intercept Communications: -

Notwithstanding any other enactment or law, the Inspector General may, if he considers it likely to contain any information relating to payment of ransom for the release of a person wrongfully confined, authorize any police officer to:

• intercept, detain and open any posted article in the course of transmission by post;
• intercept any message transmitted or received by any telecommunication; or
• intercept or listen to any conversation by telephone

9. Evidence of Accomplice: -

Notwithstanding any other enactment, no witness shall in any trial of any offence under this Bill (when it becomes law), be presumed to be unworthy of credit by reason only that he has provided funds for the payment of any ransom for the release of any person who has been wrongfully restrained or confined.

10. Evidence of Pecuniary Resources Property: -

In a trial or inquiry by a court of an offence or conspiracy to commit or attempt to commit or an abetment under this Bill (when it becomes law), the fact that an accused is in possession of resources, for which he cannot satisfactorily account for, or property disproportionate to his known sources of income, may be taken into consideration (Clause 10).

Conversely, an accused person shall not be deemed to be in possession of resources or property where such property or resources are held by any other person, whom having regard to his relationship to the accused, is believed to be holding such property or resources or to have obtained such from the accused person.

11. Protection of Informers: -

Except as provided under this Bill (when it becomes law), no witnesses shall be obliged or permitted to disclose the name or address of any informer or reveal information that may lead to his discovery (Clause 11).

Where a document liable for inspection during a criminal or civil proceeding, contains an entry in which the informer is named or described or which might lead to his discovery, the court before the proceedings, shall cause all such passages to be concealed from view or to be obliterated so far as is necessary to protect the informer from discovery, but no further.

If on a trial for any offence, the court is of the opinion that the informer willfully made in his complaint, a material statement, which he knew or believed to be true, or if at any other proceeding, the court is of the opinion that justice cannot be fully done between the parties thereto without the discovery of the informer, the court may require the production of the original complaint (if it is in writing) and permit the full disclosure of the informer.

12. Prosecution of Offences: -

The consent of the Attorney General is required for the institution of any prosecution under this Bill (when it is passed into law), provided that:

• a person charged with such offence may be issued and executed and any person so arrested may be remanded in custody or on bail, not withstanding that the consent of the Inspector General has not been obtained; however the case shall not be further prosecuted until that consent has been obtained.
• When a person is brought before a court before the Inspector General has consented to the prosecution, the charge shall be explained to him, but shall not be called upon to plead, and the provisions of the law for the time being in force relating to criminal procedure shall be modified accordingly.

13. Repeal of 364 of the Criminal Code: -

Clause 13 of the Bill seeks to repeal Section 364 of the Criminal Code, which provides for “kidnapping” as following: -

“Any person who‐

 (1) Unlawfully imprisons any person, and takes him out of Nigeria without his consent; or

(2) Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned, is guilty of a felony and is liable to imprisonment for ten years.”

FLAWS OF THE BILL

1. Ambiguous Language: -

The Bill is written in ambiguous language, which makes it difficult to understand. Several Clauses are unclear as a result – Clause 11(2) is unclear in the first paragraph where a phrase reads “…inspection may civil or criminal…”. Other Clauses with this type of challenge are Clause 7(1), Clause 10(2) and Clause 4(2).

2. Wrong Spellings: -

Several words are spelt wrongly in the Bill such as “concerted” instead of “consented under Clause 12(2); “nit” instead of “not” under Clause 5(2); and “confirmed” instead of “confined” under Clause 9. The word “ransom” is spelt wrongly all through the Bill. The title of the Bill reads “…Wrongful Restrain…” instead of “Wrongful Restraint”.

CONCLUDING NOTES

The Bill seeks to provide punishment for the offences of abduction, wrongful confinement or wrongful imprisonment for ransom, as well as repeal Section 364 of the Criminal Code, Cap 38 Laws of the Federation of Nigeria.

Clause 3(2) seeks to punish a person who pays ransom to secure the release of an abducted person with a jail term of up to 20 years. This provision is flawed to the extent that it goes against the realities of our time, where relations of abducted persons are willing to go an extra mile to get their loved ones back. The provision should be revisited and a possible solution provided for persons who are faced with the task of paying ransom for the freedom of their loved ones.

The Bill has several grammatical errors and word spellings, making it difficult to read and understand. It requires a revision before passage.

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