Content uploaded by Nnamdi Kingsley Akani
Author content
All content in this area was uploaded by Nnamdi Kingsley Akani on Oct 14, 2019
Content may be subject to copyright.
THEORETICAL FRAMEWORKS FOR INSURGENCY
Akani, Nnamdi Kingsley*
ABSTRACT
There is no consensus in the academic circles as to the theory that can best explain why we have insurgency in our
world today. It is conceded among scholars that any prescription for the treatment of insurgency must necessarily
begin with an understanding of its underlying causes. Thus, this search has led scholars to propound many theories
to explain and analyse the causes of insurgency. Against this background, this paper examined both legal and
thematic theories in an attempt to unravel the underlying causes of insurgency in any country, especially in Nigeria
where the Boko Haram, the Islamic State of West African Province (ISWAP) as well as the Niger Delta militants
have carried out insurgency campaigns for upwards of a decade. The theories examined in this paper included the
natural law theory and positive law theory. Other thematic theories were also examined and they are the enemy-
centric and population-focused theories, the Marxist conflict theory and the frustration-aggression theory. The
paper argued that the various theories are interwoven and coincide in establishing that deprivation, exploitation
and other forms of social, economic and political injustice in the society are the drivers and triggers of frustration
and aggression which gives birth to insurgency. It recommended that equitable distribution of economic, social and
political resources within a given State can act as panacea to frustration and aggressive tendencies.
KEYWORDS: Theoretical, Framework, Insurgency, Nigeria.
1. Introduction
Since the emergence of terrorism in Nigeria and the deployment of suicide bombing tactics since
2011, Boko Haram has dealt a devastating blow to the peace, security and stability of the
Nigerian state, particularly in the Northeast. It has been reported that more than 30,000 lives of
innocent Nigerians and neighbouring countries have been lost since terrorist attacks began in
earnest in 2011.1 Similarly, an estimated 800,000 children, mostly in the north-east have been
displaced2 and by 2016, the number of school-age children who had been forced to drop out of
school out of fear for their safety had risen to 952,029.3 An estimated 1.5 million people have
been made to flee their homes due to the ravaging and unabated Boko Haram violence.4 Most of
these displacements have cross-border implications.5 In the northeast, fewer children are now
1Ph.D, Member, Governing Council, Rivers State University, Port Harcourt, Rivers State. The author can be
reached via nnamdi.akani@RSU.edu.ng.
Cable, ‘In Figures: All Boko Haram Attacks in 2015’, The Cable (Washington, 28 December 2015)
<http://www.thecable.ng/path-of-aruthless-killer-all-boko-haram-deaths-in-2015> accessed 16 February 2019.
2 L Westcott, ‘Boko Haram Violence Has Displaced an Estimated 800,000 Children in Nigeria’, Newsweek
(Lagos 13 April 2013) <http://www.europe.newsweek.com/boko-haram-violence-has-displaced-estimated-
800000-children-nigeria-321921?rm=eu> accessed 16 February 2019.
3 Human Rights Watch, ‘They set the Classrooms on Fire: org/report/2016/04/11/they-set-classrooms-on-
fire/attacks-education-northeast-nigeria> accessed 16 February 2019.
4 Human Rights Watch, ‘They set the Classrooms on Fire: org/report/2016/04/11/they-set-classrooms-on-
fire/attacks-education-northeast-nigeria> accessed 16 February 2019.
5 Ibid.
1
attending school due to fear of Boko Haram attacks. Of the 10.5 million Nigeria children who are
out of school, 60 percent live in the north.6
Furthermore, Boko Haram was responsible for the death of 6,644 people in Nigeria and
Cameroon in 2014 alone.7 It has been asserted that an estimated 10,000 civilians have died in
Nigeria since 2009.8 In the area of education, it is reported that between 2009 and 2015, more
than 910 schools have been destroyed in various attacks while 1,500 schools have been forced to
close down.9 At least, 611 teachers have been killed while 19,000 teachers have been forced to
flee the flashpoints since 2009.10 In addition, it has been reported that over 300 students were
killed between 2012 and 2014.11 In April 2014, the dreaded sect abducted about 276 girls from
their dormitories in Government Secondary School, Chibok in Bornu State.12 About 57 of the
girls reportedly escaped from their captors leaving 219 of the girls with them. Abubakar Shekau,
the supposed-to-be-dead leader of the sect had reportedly appeared in a video footage claiming
that the girls were all married off. Recently, the federal government negotiated the release of 21
of the girls. Over 190 of the girls are still being held by Boko Haram.
The federal government has reportedly spent N6.5 trillion to fight Boko Haram and terrorism.13
In July 2014, the Goodluck Jonathan-led federal government sought for approval and obtained a
loan of US$1 billion to fight the Boko Haram insurgency.14 In 2015, the JP Morgan Chase and
Company began the process of excluding Nigeria from the Government Bond Index.15 There
have been huge pressures on capital and foreign currencies in Nigeria as more and more foreign
investors scramble to leave the country following the rising spate of terrorism.16 Stocks in the
exchange market have fallen.17 Besides these, the Boko Haram insurgency has led to rising cost
6 Human Rights Watch (n 3).
7 Institute for Economics and Peace, ‘The Global Terrorist Index 2015’ <http://economicsandpeace.org/wp-
content/uploads/2015/11/Global-Terrorism-Index-2015.pdf> accessed 20 March 2019 .
8 Human Rights Watch (3).
9 Ibid.
10 Ibid.
11 L Westcott (n 2).
12 Ibid.
13 C Okoroafor, ‘Boko Haram is Costing Nigeria Much More than Borno’s $1 billion’, Ventures (10 September
2015) <http://www.venturesafrica.com/boko-haram-is-costing-nigeria-much-more-than-bornos-1-billion>/
accessed 16 February 2019.
14 Ibid.
15 Ibid.
16 Ibid.
17 Ibid.
2
of basic food items like yam, tomatoes, pepper, onions, beef, fish and other crops produced
mainly in the northeast geopolitical zone due to scarcity caused by the mass displacement of
hundreds of thousands of farmers and the concomitant loss of valuable farming seasons.18 As
government intensifies efforts to rebuild the wreck caused by Boko Haram in the northeast, it has
been estimated that the federal government will spend the sum of N121 billion (US$9 billion) to
rehabilitate the devastated zone.19 This is aside from the amount spent on establishing Internally
Displaced Persons (IDPs) camps, feeding, medi-care and education of the refugees registered in
the various IDPs camps.
2. Theoretical Framework
Scholars have propounded many theories to explain and analyse the cases of insurgency;
prominent among these theories are the natural law theory and the positive law theory.
2.1 Natural Theory of Law
Legal systems have a function to secure justice. Grossly unjust laws (e.g. “White people may
own Black people as slaves,” “women may not own property or vote”) are not really laws at all,
but a perversion of law or mere violence. As St. Augustine put it, lex injustia non est lex.
Aquinas’s way of stating this point: positive law has as its purpose the common good of the
community. Any positive law which conflicts/is inconsistent with either natural law or divine law
is not really law at all. Hence, not only is there no moral obligation to obey it, but there is no
legal obligation to obey it, either. Augustine, Aquinas, and Martin Luther King are supporters of
this view.20
Lon Fuller argued there is some necessary overlap between legality and justice, because it’s
impossible to have a legal system without fidelity to the rule of law and formal justice. (Fuller
would probably have cited Iraq under Saddam Hussein as a good example of a society that
violated the rule of law so much that it really had no genuine legal system at all). But Fuller does
18 S Amuwa ‘Boko Haram and Food Security in Nigeria’, Economic Confidential (Lagos)
<http://www.economicconfidential.com/2015/01/boko-haram-and-food-security-in-nigeria/> accessed 16
February 2019.
19 L Nwabughiogu, ‘$9 bn Needed to Rehabilitate North-East’, Vanguard (Lagos, 13 April 2016)
<http://www.vanguard-ngr.com/2016/04/9bn-needed-to-rehabilitate-north-east/> accessed 16 February 2019; N
M Abdullah, ‘FG to spend N121Bn on North-East’, Daily Trust (Lagos)
<http://www.dailytrust.com.ng/news/general/fg-to-spends-n121bn-on-north-east/183006.html> accessed 16
February 2019.
20 ‘Legal Positivism vs. Natural Law Theory’
<http://web.nmsu.edu/~dscoccia/376web/376lpaust.pdfhttp://web.nmsu.edu/~dscoccia/376web/376lpaust.pdf>
accessed 18 February 2019.
3
not go as far as Augustine or Aquinas, because he admits that a society can have a genuine legal
system that satisfies the demands of formal justice (“like cases must be treated alike”) yet still
have particular laws that are unjust. In such a society, judges are independent of the other
branches of government and decide cases on their merits, the society honours the principles “no
punishment without a crime” and “no crime without a pre-existing, public law,” the accused
receives a fair trial with due process of law, etc. But still, some of the laws that are consistently
and fairly enforced are unjust (e.g. “women may not own property or vote”).21
Natural Law theorists posit that the source of law is divine or can be discovered and formed according to what is
just and will promote the common good. Aquinas takes the stance that the source of divine law is God. Human
laws are derived from these divine laws and practical reason. Aristotle and Plato agree that concepts of law and
justice are derived from nature and reason, which govern actions to move toward the higher good. Aquinas makes
the distinction that the person or persons who makes the law must be in care of the community. This is similar to
Hobbes in that he believes the duty of those who make law is to care for and protect the society that they govern.
Hobbes finds a middle path on the topic of the source of law. He contends that the individual subordinates himself
to the sovereign who can create and enforce laws according to a social contract with the people.22
One of the most elaborate statements of natural law theory can be found in Aquinas who
distinguished four types of law—human, divine, eternal, and natural—as follows: Human law
—“an ordinance of reason for the common good promulgated by him who has the care of the
community.” Eternal law —God’s plan for all of creation. Natural law—the part of eternal law
that applies to human beings; it is God’s plan for us. Natural law can be discerned by unaided
human reason, and it consists in the correct moral principles. For instance, “it is never
permissible intentionally to kill an innocent human being,” and “one must never intend what is
evil, even as a means to achieving a good or avoiding a bad result” are natural laws, in Aquinas’s
view.
Divine law—the part of eternal law that God reveals to us human beings via Scripture. If
something is against natural law, then it’s against divine law too. But some things, primarily of a
religious nature, are contrary to divine law but not natural law. For example, natural reason and
natural law tell us that the God of traditional theism exists and should be venerated. But it is only
21 ‘Legal Positivism vs. Natural Law Theory’ (n 20).
22 T Hobbes, Leviathan in C Morris (ed), The Great Legal Philosophers (Philadelphia, Pennsylvania: University
of Pennsylvania Press 1971) 109-133.
4
through divine revelation that we can know that baptism, membership in the Christian church,
etc. are necessary for our salvation. Aquinas insists that human laws are genuine laws only if
they do not contradict either natural or divine law.23
So, according to Aquinas, eternal law reflected God's grand design for the whole shebang. Divine
law was that set of principles revealed by Scripture, and natural law was eternal law as it applied
to human conduct. Man-made law was constructed by human beings to fit and accommodate the
requirements of natural law to the needs and contexts of different and changing societies. Also,
according to Aquinas, the fundamental precepts of natural law were not only ascertainable (mere
mortals like you and me could and did find them out) but self-evident, i.e., they required no
proof. They were, in Aquinas' terms, per se not, known through themselves. Like his predecessor,
Aristotle, Aquinas distinguished two kinds of reasoning: theoretical and practical. Human beings
were capable of both sorts of reasoning. Theoretical reason was the capacity to apprehend certain
truths, such as the truths of mathematics.24 Practical reason was the capacity to apprehend those
principles guiding human conduct which tell us how we ought to live, what things we should
value, what goods we should seek, and how we ought to order our lives. Like Aristotle, Aquinas
believed that there were principles of practical reason and that they were no less fundamental
than the principles of theoretical or speculative reason. Thus, for Aquinas, the principle of non-
contradiction was as self-evident as the first and most fundamental principle of natural law
("Good is to be done and evil is to be avoided"). Like the principle of non-contradiction, the
precepts of natural law were, according to Aquinas, general and unchanging. They were the same
for everyone. But man-made or human law has to take the particularities of each human situation
into account. Man-made law must adjust natural law to specific and often changing
circumstances. Man-made law is accommodating and changeable.25
Furthermore, there are areas of human conduct where natural law does not spell out the particular
ways that human beings ought to behave themselves. Natural law does not dictate, for example,
that we drive on the right hand side of the road. Human communities require a host of
23 ‘Legal Positivism vs. Natural Law Theory’ (n 20).
24 ‘Natural Law, Legal Positivism, The Morality of Law: Dworkin’s “Third Theory of Law” Legal Realism and
Critical Legal Studies
<http://www.jus.unitn.it/users/patterson/course/topics/materiale/AnalyticJurisSupplemental.pdf> accessed 19
February 2019.
25 Ibid.
5
regulations simply in order to function (traffic and tax laws). But even these regulations are
guided, albeit somewhat distantly, by natural law, i.e., by the requirement of natural law that
health and safety be protected. Man-made law may, of course, conflict with natural law or fail to
capture some fundamental feature. Aquinas argued that human laws that contravene natural law
are "acts of violence," and "a perversion of law." Such laws he argued do not bind the
conscience. They have no legal validity and cease, in this regard, to be law.26
The Natural theory of law has helped this research to analyse the issue of insurgency in terms of
what is right and wrong and what sought of behaviour is acceptable in the society. The Natural
theory of law posits that every man-made law is a product of Natural law, which is a divine and
eternal law, whose origin is attributable to God and the scriptures. The theory further stipulate
that in every human society, human beings should be able to differentiate between what is right
and wrong without being told; and live in harmony with their fellow humans respecting each
other’s freedom and the natural law that regulates human behaviour.
Ordinarily, without the existence of any man-made law, citizens should live in peace and
harmony with one another. Insurgents who go about committing grave killings and violation of
human rights are in constant violation of the natural law; a divine and eternal law from which
belief is based on the fact everyone has a conscience which guides or should his or her activities
in the society. Natural law also posits that ‘one must never intend what is evil, even as a means to
achieving a good or avoiding a bad.’ In the light of this, insurgents, even though, sometimes fight
for a good cause; their mode of carrying out their objectives is always against humanity. For
instance, the case of the Niger Delta militants in Nigeria, who genuinely are fighting for a good
cause; mainly because they are being marginalised and side-lined by the government, however,
their method of approach is wrong. They go about vandalising government infrastructure,
maiming and killing of innocent citizens and end up becoming an enemy of the government.
Natural law proponents also state that Divine law is eternal law and eternal law is the law
revealed to humans by God; and if any action is against eternal law, it is against natural law as
well. Different reasons have been identified as the causes of insurgency; one of which is
26 Natural Law, Legal Positivism, The Morality of Law: Dworkin’s “Third Theory of Law” Legal Realism and
Critical Legal Studies
<http://www.jus.unitn.it/users/patterson/course/topics/materiale/AnalyticJurisSupplemental.pdf> accessed 19
February 2019.
6
religious extremism. Some insurgent groups, have based their actions on the fact that the
grounding of their actions stems from the Holy book, however, the Holy book does not enjoin
human beings to kill, maim and commit grievous acts, thus their actions contradicts eternal law
and in the same vein, natural law. However, the Natural law seem to have outlived its importance
especially in the modern age where human beings act irrationally or do what is wrong even when
they are know their actions are wrong.
Furthermore, apart from the argument that the men in the civil government have voluntarily
surrendered their rights to the sovereign (even if it is conceded that they still have some claims
on the sovereign – namely; his reciprocal obligation to protect them and assure to them the
contentments of life). Hobbes argues that distribution of property can cause friction and conflict
in the society. In such a case, Hobbes proceeds to prescribe how the fruits of the earth ought to
be shared. On this point, Hobbes prescribes the use of equitable principles in the distribution of
the common bounties of the earth among all of humanity.27 Hobbes refers to three broad
categories of resources: things that can be divided; things that cannot be divided out can be
enjoyed in common with reference to the things that can be divided, Hobbes prescribes a straight
forward distribution formula rooted inequity – they should be shared equally among all interest
or right holders. With respect to the things that cannot be divided but which can be enjoyed in
common, Hobbes, commends the principle of common enjoyment. In other words, all persons
should have equal rights in enjoying the indivisible whole. In the last category – things that can
neither be divided nor enjoyed in common, Hobbes prescribes sharing by means of casting of lot.
The natural law theory is rooted in the principle of fairness, equity and justice. It has been
helpful to this paper in analysing the issue of youth restiveness in terms of what is right and
wrong and what sought of behaviour is acceptable in the society. The natural theory of law posits
that every man-made law is a product of natural law, which is a divine and eternal law, whose
origin is attributable to God and the scriptures. The theory further stipulates that in every human
society, human beings should be able to differentiate between what is right and wrong without
being told; and live in harmony with their fellow humans respecting each other’s freedom and
the natural law that regulates human behaviour. Natural law theory is anchored on justice, equity
and good conscience. This theory explains why the Boko Haram insurgents toed the path of
restiveness and violent uprising against the Government of Nigeria. The insurgents believe that
27 J M Mazor, ‘A Liberal Theory of Natural Resource Property Rights’ (Unpublished Ph.D Dissertation,
Harvard University 2009) 12.
7
there is no justice, equity and fair play in the laws enacted for the regulation of the productive
resources and economic sphere of the country. There is also a feeling that poverty, hunger, lack,
unemployment, mass illiteracy and absence of social security suffered by the ‘have-nots’ in
Nigeria are as a result of the exploitation of the upper class by the lower class. Thus, the structure
of political power and control of the resources that sustain Nigeria are lopsided and deliberately
skewed in favour of a few cabals or individuals to the total emasculation of the majority of
Nigerians.
When laws are not humane or fair to every component of the Federation agitations and uprisings
are bound to happen. For instance, in 1929 the colonial masters introduced a policy of taxing all
adult males in the defunct Eastern region and created the office of warrant chiefs which was
viewed as an imposition of the colonial authorities on the people. This attempt which was
interpreted as a test-run to tax women in the defunct Eastern region sparked off uprising which
later turned violent when the security forces shot and killed unarmed women on peaceful
protest.28 This shows that whenever the people feel they are unjustly treated, they will always rise
against tyranny and injustice in demand of their rights. Injustice is repulsive and precipitates
protests or uprisings anywhere it occurs.
Generally, uprisings are bound to occur wherever people are politically marginalized,
economically strangulated and deprived of humane and just conditions of living. Insurgency in
Nigeria did not just break out for the fun of it. Its occurrence is the product of pent-up grievances
at the way the wealthy few that control the economic power of the country flaunt their wealth,
subjugate, oppress and exploit the masses. In expressing their displeasure, the insurgents started
series of armed attacks against not only the Federal Government of Nigeria but also against the
masses.
2.2 Positive Theory of Law
Whether a certain rule is a law, creating legal obligations to comply with it, all depends on its
source. Valid laws are simply rules that come from certain people (kings, city councils, etc.), in
accordance with certain procedures, that the society enforces. A rule can be a genuine, valid law
28 C Power, ‘The Igbo Women’s War’
<https://www.researchgate.net/publication/306930306_The_Igbo_Women's_War/link/57c03fa308aeb95224d39
c3c/download> accessed 6 August 2019.
8
even though it is grossly unjust. According to H.L.A. Hart, a contemporary legal positivist, the
essence of legal positivism is the “separation thesis.”29
The separation thesis postulates that having a legal right to do x does not entail having a moral
right to do it, and vice versa; having a legal obligation to do something does not entail having a
moral right to do it, and vice versa; having a legal justification to do something does not entail
having a moral justification, and vice versa; etc. In order to know what your legal rights are, you
need to look at what laws your society has. In order to know what your moral rights are, you
need to figure out what is the true morality. You might have legal rights that the true morality
says you shouldn’t have (e.g. the right to own slaves), and your society might deny you legal
rights that the true morality says you should have (e.g. the right to be free, to own one’s own
body and labour power).30
During the 16th and 17th centuries England was consumed by religious, political, and social
upheaval that included a civil war and the beheading of a king. It was a period of extreme
violence, fear, and lawlessness. The theory of natural law – that law is based on divine revelation
and that it was put in place for moral improvement – did not seem to accord with the
contemporary reality of life. Out of this chaos developed a new theory about justice and the law.
Philosophers such as Thomas Hobbes and John Locke recognized that in order for stability and
order to return to England there must be a new definition of law.31 This theory would eventually
become known as positive law. Positive law is the belief that law is established by the state, for
the benefit of the state as a whole. Positive law has no moral purpose other than to ensure the
survival of the state and its citizens. Obedience to the law is no longer a matter of conscience, as
it had been for Socrates or Aquinas. To disobey the law was a crime and anyone who broke the
law was subject to punishment. In positive law there is no distinction between law and justice –
justice means conformity to the law. Law and justice are one and the same. The condition that
human laws conform to certain standards of morality and justice in order to be valid is
abandoned. The only real morality is in human obedience to state law. There was no longer a
29 ‘Legal Positivism vs. Natural Law Theory’
<http://web.nmsu.edu/~dscoccia/376web/376lpaust.pdfhttp://web.nmsu.edu/~dscoccia/376web/376lpaust.pdf>
accessed 18 February 2019.
30 ‘Legal Positivism vs. Natural Law Theory’
<http://web.nmsu.edu/~dscoccia/376web/376lpaust.pdfhttp://web.nmsu.edu/~dscoccia/376web/376lpaust.pdf>
accessed 18 February 2019.
31 Ibid.
9
debate over who had authority over the law, the church or the state. From this point forward the
church would always be subservient to the laws put forward by the state.
The positive theory of law has helped this research to analyse the issue of insurgency and counter
insurgency. The positive theory of law is premised on the belief that law is established by the
State, for the benefit of the state as a whole. In like manner, the government makes laws that
regulate human behaviour and ensure that there exists a decent society. Government makes laws
against any form of criminal acts including insurgency. National laws have been put in place
describing activities that amount to insurgency, while also stipulating the punishment that would
be meted out to those guilty of insurgent and terrorist activities. Government has to at all times
ensure the survival of the state and its citizens, and insurgency threatens this survival. Thus, laws
are made to punish offenders. For instance, in Nigeria, the Terrorism (Prevention) Act, 2011,
which states that it is a criminal offence, under Nigerian law, for any person to commit, threaten,
promote, assist or facilitate any act preparatory to or in furtherance of, or the actual execution of
any act(s) of terrorism. It is also a criminal offence for any person or group of persons to seize,
detain or attempt to seize or detain, or threaten to kill or injure another person (or property) as a
basis to induce the release of a terrorist, or to as a basis to advance a terrorist agenda, or to have
the authorities forebear a terrorist offence. The penalty on conviction for these offences is ten
(10) years maximum imprisonment.
Unlike the natural law, where obedience to law is based on human conscience and ability to
differentiate between what is right and wrong, laws are imposed on human under the positive
theory and they must be strictly complied, any form of disobedience to such law is a
contravention of the law and attracts punishment. For instance, the counterinsurgency operation
carried out by government is a way of going after those who have contravened the law against
insurgency and threatens the survival of the state in order to punish them after they might have
been found guilty. Austin posited that judging laws on a moral basis was subjective and would
potentially lead to anarchy; that is, what is wrong to one, might be right to another. Thus, if laws
were based on natural law, insurgent would see their activities as what is morally right, even
though, the society sees it as morally wrong. Although, ordinarily, insurgents have the right to
freely express themselves and make their needs known to the government and should not be
stopped from doing so. But the way and manner in which insurgents carry out their activities
10
make them contravene the law, which in turn attracts the proportionate punishment from the
State. The positive theory of law, thus, is an essential theory that stipulates the need for good and
positive laws by the sovereign that would ensure the survival of the state and its citizens.
This theory seems to explain the causes of insurgency in the North-east and youth restiveness in
the Niger Delta region of Nigeria. In the Niger Delta region, especially, there is a feeling by the
oil-rich Niger Delta minorities are marginalized, oppressed and exploited by the majority-tribe-
controlled federal government of Nigeria. This is achieved through laws such as the Constitution
of the Federal Republic of Nigeria,32 the Land Use Act,33 the Petroleum Act34 and the Minerals
and Mining Act.35 All these laws take away the right of the people to own their lands and the
resources found on the land.
Sovereignty in any political sphere resides in the people. Government is thus an exercise of the
will of the people.36 This therefore means that all government laws, actions and polities must be
in tandem of the general will of the people and not geared towards oppressing them.
Philosophers and thinkers have propounded on the duty of obedience of the citizens to the laws
and policies of government and when it will be legitimate to disobey such laws. Locke contends
that protection of the liberties and rights of citizens are the primary essence of government. Thus,
State laws are only valid only to the extent to which the State fulfils its primary objective of
protecting the well-being and freedoms of the citizens. Where, however, government deviates
from its primary purpose, it lacks the authority to make laws; such laws made in violation of its
primary duty are invalid and such government can be shown the way out.
Locke rejected the very idea of unlimited sovereign which characterizes monarchy and other
forms of dictatorial regimes. In Locke’s view, the very idea of absolute sovereignty is contrary to
natural law.37 Thus, a new form of social organization was created through the social contract to
protect the rights, liberties, and equality of all mankind. Rosseau argued that it was the peoples’
will birthed that the State as well as positive law. The people are antecedent to the State and its
institutions, including the legal system. This implies that the state, as well as the laws enacted by
it, is the creation of the people. Consequently, if government’s action and its laws deviate from
32 1999 (As Amended).
33 Cap L5, Laws of the Federal Republic of Nigeria [LFN] 2004.
34 Cap P10, LFN 2004.
35 No. of 2007.
36 1999 Constitution (As Amended), s 14(2).
37 A D Nbete, ‘The Social Contract Theory: A Model for Reconstructing a True Nigerian Nation-State’
[2012] (2) (15) International Journal of Humanities and Social Science 267, 268.
11
the ‘general will’, the people are justified in disobeying them.38 Rosseau argues that the essence
of the social contract is that the men relinquished as much of their rights and liberties as were
necessary in exchange for acquiring such fundamental freedoms as life, equality, dignity,
assembly, property, speech and so forth.39
In Nigeria, for instance, the National assembly has the constitutional burden for making laws for
the peace, order and good government of the Federal Republic of Nigeria. The 1999 Constitution
also assigns law-making responsibilities and powers to the House of Assembly of the various
States in Nigeria with respect to each State. During the military regimes in Nigeria, laws were
promulgated in the form of decrees and edicts by the superior armed forces ruling organ under
the respective regimes. The laws made by the sovereign are exploitative and does not protect the
interests of the Niger Delta People. For instance, the Land Use Act which is a relic of Nigeria’s
colonial legacy provides that all lands comprised in the territory of each state of the federation of
Nigeria shall be vested in the Governor of the State as from the commencement of the Act. The
Act makes the Governor a trustee of the land but the import is that the ownership rights or
allodial title. The owner of the land has been turned into beggars of land in their own
communities. For instance, the Governor of a State is empowered to grant a right of occupancy
to the land owners in respect of urban and rural land. No alienation of the land by the way of say,
mortgage or other means of the parting with possession is valid without the Governor’s consent.
The Governor is further empowered to revoke and seize any land for mineral exploitation or for
other uses considered as public use. Compensation is not paid for the loss of the land but for
unexhausted improvements (if any) made on the land. The expropriating provisions of the LUA
can be traced to the colonial era when anti-people laws were promulgated by the colonial masters
to forcibly acquire indigenous lands. Laws such as the Treaty of Cession,40 Land Proclamation
Ordinance,41 Land and Native Rights Act,42 Niger Lands Transfer Act,43 Public Lands Acquisition
Act,44 Native Lands Acquisition Act,45 State Lands Act46 and the Town and Country Planning
38 Ibid.
39 Ibid.
40 Treaty of Cession 1861.
41 Land Proclamation Ordinance 1900.
42 Land and Native Rights Act 1916.
43 Niger Lands Transfer Act 1916.
44 Public Lands Acquisition Act 1917.
45 Native Lands Acquisition Act 1917.
46 State Lands Act 1918.
12
Act47 were enacted to take away the land of the communities in Nigeria and make them freely
available for the use of the colonial matters.48 Such laws are anti-people because they impinge on
the source of livelihood of the local people. Similarly, the Petroleum Act enacted in 1969 grants
the Federal Government of Nigeria exclusive ownership and control of all mineral oil found in
Nigeria, irrespective of where the land is located.49 The Petroleum Act gives the Minister of
Petroleum Resources power to allocate oil licences in the form of Oil Exploration Licence
(OEL), Oil Prospecting Licence (OPL) and Oil Mining Lease (OML). The entire Niger Delta
region where these petroleum resources are found were laid out into various mining leases. Since
1958 when commercial production of oil and gas began in Nigeria, oil blocks have and continue
to be awarded to persons who are from other tribes to the total exclusion of the Niger Delta
People.
A situation where a non-native of the Niger Delta uses political power to allocate to himself and
his cronies oil blocks in the Niger Delta communities and derive all the dividends from its
exploration and exploitation while those in the Niger Delta region watch helplessly as their lands
and resources are plundered is unjust and bound to spark off protests and agitations. The same
provision was smuggled into the Nigerian Minerals and Mining Act.50 The NMMA51 proclaims
the Federal Government of Nigeria as the owner, controller and manager of the entire mineral
resources deposited within the territorial limits of the country.52 Accordingly, the NMMA
acquires every land containing minerals for the Federal Government as stipulated in LUA.53 The
NMMA declares that mining shall constitute overriding public interest superseding all other land
uses in tandem with the LUA.54 A Governor is placed under a solemn obligation to revoke all
existing rights over land subject of mining title within 60 days of such grant and acquire same.55
Such revocation powers should be exercised as required under section 28 of the LUA.56
47 Town and Country Planning Act 1947.
48 N Udoekanem and A David, ‘Land Ownership in Nigeria: Historical Development, Current Issues and
Future Expectations’ (2014) (4) (21) Journal of Environment and Earth Science, 182-188, 183.
49 Petroleum Act 2004, s 1(1).
50 Nigerian Minerals and Mining Act 2007 [NMMA 2007].
51 NMMA 2007.
52 Ibid, s 1(1).
53 NMMA 2007, s 1(2). Section 1 of the Land Use Act 2004 also contains identical provision.
54 Ibid, s 22(1).
55 Ibid, s 22(2).
56 Ibid.
13
Clearly, these laws are not just laws in that they expropriate the property rights of the Niger Delta
People. Using the positive theory as a point of discussion, the sovereign (which in Nigeria can be
likened to the Federal Government) has the duty and power to make laws through its law-making
organs. However, as part of the social contract under which the people of the Niger Delta region
and indeed the whole country surrendered their individual rights to self-preservation to the
Federal Government as sovereign, such laws must be made for the peace, order and good
government of Nigeria. The 1999 Constitution, the LUA, the Petroleum Act and the NMMA are
draconian pieces of legislation which completely emasculate the Niger Delta People from their
God-given land and resources. It is an attempt to emasculate from the Niger Delta people from
the economic and productive resources of their land. In return for their expropriation of their land
and resources, the Niger Delta People receive nothing.
This is also how these draconian and anti-people laws strip the people of the North-east of their
lands. The injustice in draconian laws enacted by the Federal Government firmly in the grip of
the few powerful individuals triggered the current spate of insurgency and youth restiveness
experienced in Nigeria today.
3. Counter-Insurgency Theories
Having examined the theories that explain the causes of insurgency in Nigeria, it will be
necessary to also discuss the theories have emerged in which scholars have attempted to advance
reasons for the measures adopted by the government in its counter-insurgency campaigns against
insurgents in the Nigerian State. These theories include:
3.1 The Enemy-Centric Theory
This theory is premised on the presumption that counterinsurgency is a contest with an organized
enemy and thus, emphasizes defeat of the enemy as its primary objective, while viewing other
mechanisms as secondary57. What this means is that the theory stresses the need for the state to
mobilize all instruments of coercion at its disposal to completely subdue, suppress and annihilate
the insurgents and the threats they pose the monopoly claim to legitimate use of force by the
state. This counterinsurgency theory believes that the state is the only entity that has monopoly
57 Liolio, S.E., ‘Rethinking Counterinsurgency: A Case Study of Boko Haram in Nigeria’ (Unpublished
M.A. Thesis, European Peace University, Austria 2013) 44.
14
to organized violence and/or coercion and as such, must not tolerate any individual or group that
overtly or covertly compete with it. Thus, Liolio58 highlighted the point that the enemy-centric
approach underscored the saying ‘first defeat the enemy, and all else will follow ’. This theory
supports the full mobilization and deployment of all necessary military forces of the state to
engage the insurgents in battle until they are defeated and the state reclaim and retain its
monopoly of force over other groups in the society. There are many variants within this approach
which includes soft or hard, direct or indirect, violent or non-violent, and decapitation or
marginalization strategies.
3.2 The Population-Centric Theory
The population-centric theory unlike the enemy-centric approach, focuses on first and foremost,
protecting the civilian population from terrorist, win their confidence and maintaining or winning
its support in the effort to rid insurgency.59 This way, vital intelligence information that could
easily lad to infiltration of the insurgents and consequently, ways to effectively combat them can
be easily attained. This theory de-emphasized over-reliance on military approach to combating
insurgency by the state. In other words, the argument of this theory is that while direct military
confrontation might be needed in defeating the insurgents, it is not seen here as the primary
objective which is to win the supports of the population. This approach can be summarized as
‘first protect and support the population, and all else will follow’. For, as Springer has argued,
“the population wants to be associated with the side they believe will be prosperous, victorious
and offer the best social and economic alternative for the future”.
However, while the enemy-centric theory may be effective in dealing with incipient and weak
insurgencies that are formed and controlled by a particular powerful or charismatic individual
like Boko Haram’s Yusuf Muhammed at the formative stage of the dreaded Boko Haram
insurgent group in Maiduguri, relying solely on its affective counterinsurgency mechanism has
proved to be faulty60. This is so especially when the insurgents become emboldened and
sophisticated as Boko Haram currently is. For example, despite sophistication of the U.S.
military and defence system, it failed in ridding off terrorism in the Middle East. While U.S.
military approach to resolving sectarian violence e in Iraq showed inefficiency, tackling Taliban
58 N Salaam, S Usman and O Lawrence, Insurgency, Counter-Insurgency and Fundamental Human Rights in
North-East Nigeria, Leadership and Complex Military Operations (Kaduna:Nigerian Defence Academy
Publishing 2016) 453.
59 Ibid, 454.
60 N Salaam, S Usman and O Lawrence (n 58) 454.
15
in Afghanistan and fighting insurgents in Pakistan with enemy-centric approach has equally
proved futile. In other words, counterinsurgency theorists have advocated for the combination of
both theories as effective strategies of combating insurgency head-on.
3.1 The Marxist Conflict Theory
Building on the Marxist conflict theory, scholars61 note that the Boko Haram insurgency is an
(offshoot of conflict within the ruling class which is generated by emerging divisions, political
factionalization and conflicting interests. Similar arguments have been made by scholars in
explaining the root causes of the Niger Delta militancy.62 Historically, the activities of the
forerunner of modern day militancy in the Niger Delta region of Nigeria, Jasper Adaka Boro
argued that the Niger Delta people were unjustly treated by the majority ethnic groups in Nigeria.
He mobilized his people to fight the injustice meted out on the Niger Delta people. According to
Boro, their God-given resources were forcefully expropriated under unjust laws and they
received nothing in return. This theory which was developed by the German idealist and
Philosopher, Karl Marx and Frederick Engels claims that the conflict in the human society is
caused by competition for scarce resources.63 Adherents of the theory believe that the basis for
the maintenance of social order is domination and power, instead of agreement and unity. It
argues that the wealthy perpetuate themselves in power by impoverishing and subjugating the
poor and powerless.64 The theory believes that uneven distribution of nature’s wealth would be
sustained by laws where the bourgeoisie would compel the proletariat to accept their current
repressive conditions.
Marx believes that as the proletariat (for instance, the poor and working class) continues to be
subjected to worsening forms of dehumanization, deprivation and lack, there would be a mass
61 N G Egbue, I U Nwankwo and B O Alichie, ‘Curbing Boko Haram Terrorist Insurgence in Nigeria:
Imperatives of Quadruple Action Package of Limited Military Response, Improved Social Services, Conflict
Resolution Initiatives and Modified Pacifism’ [2015] (20) (1) British Journal of Arts and Social Sciences, 43.
62 N Nwogwugwu, O E Alao and C Egwuonwu, ‘Militancy and Insecurity in the Niger Delta: Impact on the
Inflow of Foreign Direct Investment in Nigeria’ (2012) (2) (1) Kuwait Chapter of Arabian Journal of Business
and Management Review 23-37; I Dialoke and M S Edeja, ‘Effects of Niger Delta Militancy on the Economic
Development of Nigeria (2006-2016)’ (2017) (3) (3) International Journal of Social Sciences and Management
Research 25-36.
63 P Bell and H Cleaver, ‘Marx’s Theory of Crisis as a Theory of Class Struggle’ [2002] (5) The Commoner; 1-
60, 20.
64 M Oxana and P Lyudmila, ‘Karl Marx and Marxist Sociology’
<htlp://www.enpuir.npu.edu.ua/bitstream/1234576789/300/1/pet%27k%2%202014%20karl%20Marx.pdf>
accessed 1 May 2019, 94-96.
16
revolution which will inspire a change in the control and distribution of the means of
production.65 In other words, this theory holds the view that conflict in the human society does
not just occur for the sake of it. The massive inequalities and inequities in the human society
engendered by only a few individuals (for instance, bourgeoisie) amassing and accumulating all
of nature’s freely given wealth meant for the entire society to themselves while the masses
wallow in abject penury make conflict inevitable. Thus, according to the theory, if the lopsided
wealth distribution pattern is not corrected and equality restored, the have-nots (for instance,
proletariats) can no longer be able to bear the repression and excruciating pains. The result is
revolt and armed conflict.
Scholars also posit that the political class takes advantage of the poverty, deprivation and
suffering of the peasant class to advance their interests. They argue that the sect uses religious
indoctrination and material inducements to mobilize the poor as foot soldiers of the insurgency in
order to advance their own political interest.66 Scholars also posit that the political class takes
advantage of the poverty, deprivation and suffering of the peasant class to advance their interests.
They argue that the sect uses religious indoctrination and material inducements to mobilize the
poor as foot soldiers of the insurgency in order to advance their own political interest.67
3.2 The Frustration Aggression Theory
The frustration aggression theory advanced by Sigmund Freud has been used to explain the
underlying causes of the Niger Delta militancy and the Boko Haram insurgency in Nigeria.68
This theory holds that man has the distinctive desire to destroy himself when frustrated and that
since man’s ego does not always permit self-destruction, such destructive instinct is usually
transferred to others. The theory holds that aggression is usually the consequence of frustration
and that frustration is the product of a relative deprivation of an expectation that creates a gap
between aspiration and achievement.69 Using this theory as a tool of analysis, it can be argued
that the Niger Delta militancy and the Boko Haram insurgency are caused by the general neglect
of the peasant class, the accumulation, diversion and misappropriation of the commonwealth by
65
R J Rummel, ‘Marxism, Class Conflict and the Conflict Helix’
<https://www.hawaii.edu/powerkills/CIP.CHAP5.HTM> accessed 30 June 2019.
66 R J Rummel (n 56).
67 Ibid.
68 M Bello, S A Abdullahi and H T Hassan, ‘International Terrorism and Its Implications for National Security in
Nigeria’ [2015] (2) (10) International Journal of Humanities, Social Sciences and Education 27.
69 M Bello, S A Abdullahi and H T Hassan (n 68).
17
the few privileged political class, and the starvation and suffering of the people. This explains
why it was easy to recruit members of the sect. The recruits were mainly illiterates, school drop-
outs, jobless and other disadvantaged peasant class members.
4. Conclusion
Scholars have attempted to advance reasons for the emergence of Boko Haram and the Niger
Delta insurgency and the terrorist activities carried out on the Nigerian State. The natural and
positive law theories examined point to the fact that deprivation, widespread poverty, social
injustice, inequality, injustice, unjust laws, concentration of the nation’s wealth in the hands of a
few powerful cabals, social exclusion and exploitation of the poor through unjust laws are the
major reasons citizens take up arms against the Government of Nigeria. These theories proved
from the various armed conflicts that have erupted in Nigeria that the masses are bound to rebel
against the rulers wherever there is feeling of injustice and unfair treatment by the State.
The paper has established that the Boko Haram insurgency and indeed insurgency in any other
part of the world is an offshoot of emerging divisions, political factionalization and conflicting
interests. Thus, scholars have posited that the political class takes advantage of the poverty,
deprivation and suffering of the peasant class to advance their interests. The paper recommends
that in order to curb the incidence of insurgency in the country, government should tackle the
root causes of insurgency which include poverty, exploitation, unjust laws and reorder the
political and economic systems of the country in such a way that the maximum well-being of all
citizens will be assured. This will entail the repeal of draconian and exploitative laws, provision
of employment and other forms of social security, provision of infrastructural and basic
amenities, prioritization of education of citizens, among others.
References
Abdullah N M, ‘FG to spend N121Bn on North-East’, Daily Trust (Lagos)
<http://www.dailytrust.com.ng/news/general/fg-to-spends-n121bn-on-north-
east/183006.html> accessed 16 February 2019.
Amuwa S ‘Boko Haram and Food Security in Nigeria’, Economic Confidential (Lagos)
<http://www.economicconfidential.com/2015/01/boko-haram-and-food-security-in-
nigeria/> accessed 16 February 2019.
Bell P and Cleaver H, ‘Marx’s Theory of Crisis as a Theory of Class Struggle’[2002] (5) The
Commoner; 1-60.
18
Bello M, Abdullahi S A and Hassan H T, ‘International Terrorism and Its Implications for
National Security in Nigeria’ [2015] (2) (10) International Journal of Humanities,
Social Sciences and Education 27.
Cable, ‘In Figures: All Boko Haram Attacks in 2015’, The Cable (Washington, 28 December
2015) <http://www.thecable.ng/path-of-aruthless-killer-all-boko-haram-deaths-in-
2015> accessed 16 February 2019.
Danbazzau A, ‘Overcoming Nigeria’s Security Challenges’, Paper presented at the Eleventh
Convocation Ceremony held at the University Main Auditorium, Igbinedion University,
Okada, Edo State, Nigeria on Thursday, November 28, 2013, 11
<http://www.academia.edu/5497444/IGBINEDION_UNIVERSITY_2,>
assessed on 20 February 2019.
Dialoke I and Edeja M S, ‘Effects of Niger Delta Militancy on the Economic
Development of Nigeria (2006-2016)’ (2017) (3) (3) International Journal of Social
Sciences and Management Research 25-36.
Egbue N G, Nwankwo I U and Alichie B O, ‘Curbing Boko Haram Terrorist Insurgence in
Nigeria: Imperatives of Quadruple Action Package of Limited Military Response,
Improved Social Services, Conflict Resolution Initiatives and Modified Pacifism’
[2015] (20) (1) British Journal of Arts and Social Sciences, 43.
Freeman M D A, Lloyd’s Introduction to Jurisprudence (8th edn, London: Thomson Reuters
2008).
Hobbes T, Leviathan in C Morris (ed), The Great Legal Philosophers (Philadelphia,
Pennsylvania: University of Pennsylvania Press 1971).
Human Rights Watch, ‘They Set the Classrooms on Fire: org/report/2016/04/11/they-set-
classrooms-on-fire/attacks-education-northeast-nigeria> accessed 16 February 2019.
Institute for Economics and Peace, ‘The Global Terrorist Index 2015’
<http://economicsandpeace.org/wp-content/uploads/2015/11/Global-Terrorism-Index-
2015.pdf> accessed 20 March 2019.
Ladan M T, Introductionto Jurisprudence: Clasical and Islamic (lagos: Malthouse Press Limited
2010).
‘Legal Positivism vs. Natural Law Theory’
<http://web.nmsu.edu/~dscoccia/376web/376lpaust.pdfhttp://web.nmsu.edu/~dscoccia/3
76web/376lpaust.pdf> accessed 18 February 2019.
‘Natural Law, Legal Positivism, The Morality of Law: Dworkin’s “Third Theory of Law” Legal
Realism and Critical Legal Studies
19
<http://www.jus.unitn.it/users/patterson/course/topics/materiale/AnalyticJurisSupplemen
tal.pdf> accessed 19 February 2019.
Liolio, S E, ‘Rethinking Counterinsurgency: A Case Study of Boko Haram in Nigeria’
(Unpublished M.A. Thesis, European Peace University, Austria 2013).
McCuen J J, The Art of Counter-Revolutionary War: The Strategy of Counter-Insurgency
(London: Faber 1966).
Nbete A D, ‘The Social Contract Theory: A Model for Reconstructing a True Nigerian Nation-
State’ [2012] (2) (15) International Journal of Humanities and Social Science 267, 268.
Nwabughiogu L, ‘$9 bn Needed to Rehabilitate North-East’, Vanguard (Lagos, 13 April 2016)
<http://www.va nguard-ngr.com/2016/04/9bn-needed-to-rehabilitate-north-east/>
accessed 16 February 2019.
Nwogwugwu N, Alao O E and Egwuonwu C, ‘Militancy and Insecurity in the Niger Delta:
Impact on the Inflow of Foreign Direct Investment in Nigeria’ (2012) (2) (1) Kuwait
Chapter of Arabian Journal of Business and Management Review 23-37.
Ogbu O N, Nigerian Legal System (2nd edn, Enugu: Cidjap Press 2009).
Okoroafor C, ‘Boko Haram is Costing Nigeria Much More than Borno’s $1 billion’, Ventures
(10 September 2015) <http://www.venturesafrica.com/boko-haram-is-costing-nigeria-
much-more-than-bornos-1-billion>/ accessed 16 February 2019.
Oxana M and Lyudmila P, ‘Karl Marx and Marxist Sociology’ 94-96
<htlp://www.enpuir.npu.edu.ua/bitstream/1234576789/300/1/pet%27k
%2%202014%20karl%20Marx.pdf> accessed 1 September 2019.
Pound D R, ‘Theories of Law’ (1912) (22) Yale L.J. 114, 145-6.
Rummel R J, ‘Marxism, Class Conflict and the Conflict Helix’
<https://www.hawaii.edu/powerkills/CIP.CHAP5.HTM> accessed 30 March 2019.
Salaam N, Usman S and Lawrence O, Insurgency, Counter-Insurgency and Fundamental
Human Rights in North-East Nigeria, Leadership and Complex Military Operations
(Kaduna:Nigerian Defence Academy Publishing 2016).
Udoekanem U and David A, ‘Land Ownership in Nigeria: Historical Development, Current
Issues and Future Expectations’ (2014) (4) (21) Journal of Environment and Earth
Science, 182-188, 183.
Westcott L, ‘Boko Haram Violence Has Displaced an Estimated 800,000 Children in Nigeria’,
Newsweek (Lagos 13 April 2013) <http://www.europe.newsweek.com/boko-haram-
violence-has-displaced-estimated-800000-children-nigeria-321921?rm=eu> accessed
16 February 2019.
20