Nigeria And The Fight Against Impunity

1.1 Introduction

The research is on Nigeria and the pursuit of international justice. The study evaluates the current statues of the domestic implementation of Statute of the International Criminal Court (Rome Statute)[2] and Agreement on Privileges and Immunities of the Court (APIC).[3] The study identifies Nigerian based non-governmental organisations (NGOs) and civil society organisations (CSOs) working on justice and accountability issues. The study discusses the challenges and expectations on Nigeria to fulfil her international obligations by prosecuting citizens responsible for international crimes. The report contains findings in relation to the prosecution of international crimes and cooperation with the International Criminal Court (ICC). The report identifies organisations working on international justice issues and discusses the challenges and opportunities in the field of international criminal justice in Nigeria.

Several years of military dictatorships resulted human rights abuses in Nigeria. However, the return to civil administration in 1999 has not changed much as there is an increase in ethnic and religious conflicts and a reign of terror by local militias supported by the elite and political class. The government of Nigeria is currently battling a militant Islamic group known as Jama’atu Ahlus-Sunnah Lidda’Awati Wal Jihad (Boko Haram) accused of committing several human rights abuses against civilians.[4] There have also been allegations that Nigerian security forces have committed serious violations against its citizens while trying to end the terrorist attacks by Boko Haram.[5] The Office of the High Commissioner for Human Rights argues that some of the crimes committed by Boko Haram amounts to crimes against humanity and has urged the Nigerian government to ensure that perpetrators of the violence are brought to justice.[6] The ICC has listed Nigeria as a country under preliminary examination and the office of the prosecutor of the ICC has received several communications since 2005 in relation to the situation in Nigeria. These include the ethnic and religious conflicts that have occurred in central Nigeria since 2004 and the recent violent clashes after the parliamentary and presidential elections in 2011.[7] In a recent visit to Nigeria, the prosecutor of the ICC, Fatou Bensouda stated that Nigeria is not under investigation but preliminary analysis and that as long as the government is prosecuting those responsible for international crimes, the jurisdiction of the ICC will not be activated.[8]

However, it is noted that the Nigeria currently does not have the necessary legal framework to prosecute those responsible for international crimes. Nigeria is yet to implement the Rome Statute of the ICC into domestic law which means that it will not be able to discharge its complementary obligations under the Rome Statute very well. This is because the ICC operates on the principle of complementarity that makes it the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.[9] This is unlike the International Criminal Tribunal for the former Yugoslavia,[10] the International Criminal Tribunal for Rwanda (ICTR)[11] and the Special Court for Sierra Leone (SCSL),[12] which have primacy over national jurisdictions on the prosecution of international crimes. The complementarity principle of the Rome Statute has been recognised as the hallmark of the Rome Statute because of the relationship envisaged between States and the Court. The Rome treaty gives States like Nigeria, the primary responsibility to prosecute international crimes committed in their jurisdiction.[13] The ICC is expected to complement and not supplant the prosecution of international crimes by national jurisdictions.[14] The principle of complementarity is based not only on respect for the primary jurisdiction of states, but also on practical considerations of efficiency and effectiveness, since states like Nigeria will generally have the best access to evidence, witnesses, and resources to carry out proceedings.[15] As long as Nigeria is able and willing to genuinely investigate and prosecute the matter which has come to the Court’s attention, the Court does not have jurisdiction. This is in furtherance of the preamble of the Rome Statute which affirms that ‘the most serious crimes of concern to the international community must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’.[16]

1.2 Background to the study

Nigeria obtained independence from the British government in 1960 and operates a federal system of government made up of thirty-six states and Abuja as the Federal Capital Territory. The population of Nigeria is approximately one hundred and sixty million and the country is divided into Christians, Muslims and followers of African traditional religion. Nigeria ratified the Rome Statute on the 27 of September 2001. However, Nigeria is yet to domesticate the treaty under national law. The implementation of international treaties in Nigeria is governed by the 1999 Constitution which provides that ‘[n]o treaty between the Federation and any other country will have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly’.[17] Nigeria has not acceded to the APIC. However, Nigeria entered into a Bilateral Immunity Agreement (BIA) with the United States government which provides that Nigeria will not hand over US citizens who commit international crimes in Nigeria to the ICC.[18]

The Nigerian government has made attempts to domesticate the Rome Statute of the ICC. The first effort was in 2001 when the Rome Statute of the International Criminal Court (Ratification and Jurisdiction) Bill 2001 was presented to the National Assembly. The bill was subsequently referred to a Committee of the Whole House on the same date and the report was not released till its dissolution in 2003. The second attempt was when the Ministry of Justice resubmitted the bill in 2006 as the Rome Statute (Ratification and Jurisdiction) Bill 2006. It was passed by both the Senate and House of Representatives, but was neither harmonized by the legislators nor presented to former President Olusegun Obasanjo for his assent before the end of the administration in May 2007. The Nigerian Federal Executive Council (FEC) on 30 May 2012 approved a draft bill on the domestic implementation of the Rome Statute in Nigeria.[19] The draft bill was gazetted by the government on 17 July 2012 is currently before the National Assembly in Abuja.[20]

1.3 Methodology

The study involves the collection, review and analysis of primary and secondary data on the Nigerian legal system. These include interviews with key government officials and NGOs through telephone interviews and email correspondences. There is an analysis of Nigerian laws in relation to the ratification and domestic implementation of international treaties. The bill to domesticate the Rome Statute currently before the Nigerian parliament is analysed in addition to the applicable principles of international criminal law applicable in Nigeria. The methodology also involves a desktop review of existing literature on Nigeria including efforts by NGO and CSOs to end a culture of impunity in the region.

1.4 Main research questions

The key research question of the study is ‘whether the Nigerian domestic legal system can complement the International Criminal Court in the investigation and prosecution of international crimes’. This is answered using the following sub-questions:

  1. a)Whether there is political will in Nigeria to investigate and prosecute international crimes
  2. b)Whether there are adequate laws in Nigeria that will aid the effective implementation of the Rome Statute of the ICC
  3. c)Whether there are NGOs and CSOs working on international justice issues in Nigeria
  4. d)Whether gender justice is mainstreamed in international justice advocacies carried out in Nigeria
  5. e)Whether there is any visible impact of international criminal justice proceedings and civil society advocacy activities on domestic politics, peace processes, security concerns and national reconciliation in Nigeria
  6. f)Whether Nigeria has the human, political, financial and judicial capacity to cooperate with the ICC in the fight against impunity under the complementarity principle

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