THE DOMESTIC IMPLEMENTATION OF INTERNATIONAL TREATIES IN NIGERIA by Chinedum Odenyi

THE DOMESTIC IMPLEMENTATION OF INTERNATIONAL TREATIES IN NIGERIA: UNDERSTANDING THE ROLE OF THE NATIONAL ASSEMBLY IN THE IMPLEMENTATION OF THE INTERNATIONAL CRIMINAL COURT BILL

by

Chinedum Odenyi[1]

1.1 INTRODUCTION

The bill for an Act to provide for the enforcement and punishment of crimes against humanity, war crimes, genocides and related offences which, when passed by the Nigerian Legislature, would give effect to certain provisions of the Rome Statute of the International Criminal Court (ICC) in Nigeria was read in the Nigerian Senate on Wednesday, June 20, 2012 and in the House of Representatives on Tuesday, September 18, 2012. It would be the third time the Rome Statute would be introduced into the Nigerian Legislature for domestication since 1999, when democracy returned to Nigeria after a 16-year military rule hiatus. The first time in 2003, it did not move beyond the legislature. The second time, the bill was passed by both Chambers of the Legislature and presented in 2006 to President Olusegun Obasanjo who did not sign it before the expiration of his tenure in 2007 citing certain objectionable clauses[2]. By Nigerian Laws[3], the President of the Federal Republic must, within thirty days of a bill being presented to him, give his assent (signified through his signature) to any bill passed by the National Assembly for it to become an Act of the National Assembly; and where he does not sign the bill (which effectively is a veto) the National Assembly could pass the bill again by a 2/3 majority vote and the bill becomes law, all the same. Where the President did not sign and the National Assembly did not override the veto, the bill begins a new legislative journey when the next National Assembly is inaugurated. This was the fate of the 2006 bill that expired on President Obasanjo’s table.

This treatise will give a background to the International Treaty that gave rise to the bill, and attempt a synopsis of the journey of the Rome Statute through the Nigerian Legislature, the legislative process in Nigeria, the contents of the bill as it courses through the Legislature, an analysis of the place and fears of Africa in the international justice arena using the Rome Statute as case in point and what can be done to secure a speedy passage of the bill now lying in the Nigerian Legislature.

1.2 A BRIEF HISTORY OF THE ICC

The Rome Statute is the result of multiple attempts for the creation of an international tribunal conferred with supranational jurisdiction. The idea of a permanent global criminal court to prosecute genocide, crimes against humanity, war crimes and the crime of aggression was first given serious consideration in 1937 when the League of Nations produced a draft statute for a court to try international terrorists[4]. The Nuremberg and Tokyo trials which came on the heels of the Second World War (WW2) accentuated the need for a permanent international criminal court to try those crimes that dehumanize the world which national courts are unable or unwilling to prosecute. Although the post WW 2 tribunals have been criticised as “victors’ justice” because they were established by victorious allied powers of France, United Kingdom, United States of America and the USSR to try war criminals of the defeated nations of mainly Germany and Japan, they nonetheless pointed again to the need for a permanent court operating in conditions of peace to try crimes from theatres of conflicts that violate international law.

The ICC has been operational since mid-2003 following the entry into force of the Rome Statute of the International Criminal Court on July 1, 2002. The statute is one of the most complex international treaties being a combination of public International Law, International humanitarian law and criminal law[5]. It was adopted at a diplomatic Conference in Rome on 17th July 1998. As at February 15, 2013, 121 States are State parties to the Statute including all of South America, almost all of Europe, and about half the Countries in Africa; Ivory Coast being the latest. Nigeria signed the Rome Statute on June 1, 2000 and ratified it on September 27, 2001. However, Nigeria has not incorporated it into its domestic laws as required under Section 12 of the Constitution of the Federal Republic of Nigeria which provides that the National Assembly must pass any International Treaty or Instrument entered into by Nigeria before the Treaty would have effect in Nigeria. The National Assembly needs to pass the bill into law (that is the practice of domestication of International Instruments) so that Nigeria can recognize and prosecute the Statute crimes namely: Genocide, war crimes, crime against humanity and the Crime of aggression as part of the organic laws of the Federation.

The atrocities of war and the horrors of its execution needed to have a global process of amelioration through the spectre of global imposition of responsibility on those who carry out heinous activities during any war or conflict. And as crimes against international law are committed by people, not by abstract entities[6], only by punishing the persons involved in committing such crimes would the provisions of international law be enforced.

The heinousness of the war in former Yugoslavia and the distressing brutalities of the tribal conflict in Rwanda in 1993 and 1994 respectively, consequent upon which separate criminal tribunals were established as ad-hoc arrangements to try persons involved in conflict atrocities, gave impetus to the need to establish a permanent Court. With the proliferation of conflicts and the need to punish brutalities perpetrated during conflicts, it was not possible to establish, for every theatre of war or conflict, International War Crimes Tribunals. Therefore, following a consideration of the Report of the International Law Commission on the draft Statute, the United Nations Diplomatic Conference of Plenipotentiaries finally approved, in July 1998, the establishment of the International Criminal Court. Its establishment offered the solution to the proliferation of International Criminal Courts[7]. The vote for its establishment was adopted by one hundred and twenty (120) countries in favour to Seven (7)[8] against whilst twenty one (21) nations abstained. Senegal was the first country to ratify it thereby bringing that honour of earnestness to curtail impunity during conflicts to Africa.

The benefits of an effective ICC, as we have seen from the trials of those who perpetrated war crimes in the former Yugoslavia, Rwanda, Liberia, Sierra Leone and other conflict regions of the world, are legion. It helps address the grave violations of human rights by checking impunity among war mongers. It does this by demanding accountability, during or long after the conflict has ended. This deters people from behaving with impunity during conflicts and secures some kind of elementary considerations of humanness in waging wars or conflicts thereby upholding a mandatory minimum conduct in armed conflicts of any kind. The searing practice of conscripting under-aged persons into militias to fight wars is one of the practices the Statute targets to tackle. It is complimentary arrangement as it provides alternative platform to deal with war crimes, crimes against humanity and genocide where national criminal justice mechanism is unwilling or unable to act. It also helps in apprehending those criminals who have found refuge in foreign countries. It therefore enthrones the principle of globalisation of criminal justice.

1.3 THE COMPLIMENTARITY PRINCIPLE OF THE ICC

The Rome Statute creates an obligation on the part of states to investigate and prosecute ‘core international crimes’ as state parties risk an intervention by the ICC if there is no investigation or prosecution. The ratification of the Rome Statute by about 121 states constitutes significant evidence of an acknowledgement of the duty to prosecute and punish these crimes. The Statute therefore depends on the principle of complimentarity.

Complimentarity is a necessity for the ICC to succeed in its mandate. The ICC operates on a minimal budget with a small staff who are usually involved in multiple conflict countries simultaneously. With limited resources to cover a global jurisdiction, the ICC relies on domestic states to investigate and prosecute their own cases. The ICC also has no police force of its own. Consequently, when the ICC does open investigations in a country, it depends on domestic governments to arrest suspects and protect the Court’s investigators. This poses significant challenges because the ICC must often cooperate with state officials who themselves, sometimes, are suspected of committing atrocities.[9] The ICC’s reliance on state cooperation leaves it open to these sorts of domestic political machinations. The bill in progress in the Nigerian legislature provides in many clauses co-operation between the Court and Nigeria.

1.4 ACTIVATING THE JURISDICTION OF THE COURT UNDER THE BILL

The jurisdiction of the Court could be invoked when an act constituting an offence under the Statute is alleged to have been committed after the date the Act comes into effect.

There are three ways the Court’s jurisdiction may be activated, vis-à-vis the offences covered in the Statute as captured in the Nigerian bill. One, a state party may refer such a crime to the Court. Secondly, the Security Council of the United Nations may refer such a crime to the Prosecutor relying on Chapter VII of the UN Charter; and thirdly the Prosecutor may initiate investigations in respect of such crime, suo motu.

The Court may request the Attorney General for assistance in respect of an investigation or prosecution being carried on or proposed to be carried on by the Prosecutor in respect of an offence within the jurisdiction of the court relating to the arrest or surrender of a person for trial or to serve a sentence where conviction has taken place; for the identification and location of a person or thing; for the taking of evidence, including testimony under oath, and the production of evidence; or for the questioning of a person or the service of documents. The Court may also request for assistance from Nigeria to facilitate the voluntary appearance of persons as witnesses or as experts; the temporary transfer of prisoners; the examination of places or the exhumation of corpses; the execution of searches and seizures; the provision of records and documents; the protection of victims and witnesses; the identification, tracing or seizure of the proceeds of a crime within the jurisdiction of the court (the rights of bona fide third parties exempted) and for any other assistance not prohibited by the law of Nigeria.

1.5 AFRICA AND INTERNATIONAL JUSTICE

There has been a barrage of criticisms of the Rome Statute especially as regards Africa with many seeing it as representing a neo-colonialist intervention in the affairs of African states. It does seem as if African personalities are mainly targeted by the Court giving that since its establishment, mainly African persons have been indicted and warrants issued against them by the Court. Currently, there are five situations before the ICC and all of them are from Africa[10].

The warrant of arrest issued by the Court for the arrest of Sudanese President Omar al-Bashir was the biggest manifestation of the fears of those who say it is a neo-colonialist weapon. The argument is that the ICC’s actions do not countenance the peculiarity of African conflicts, that they complicate peace processes and that they further contravene the principles of national sovereignty and sovereign immunity. According to this point of view, al-Bashir had been forced to employ the services of the Janjaweed militia in the early stages of the rebellion in Darfur in 2003 because he did not have the military capacity to deal with the rebellion that was started by the Justice for Equality Movement (JEM), and it is therefore argued that it would be unfair for the world to ask al-Bashir to disown the Janjaweed after they helped save Sudan from disintegration. The argument further states that the charges against al-Bashir were mainly because he refused to hand over the Janjaweed to the ICC and that in the absence of any evidence that al-Bashir gave the Militia the blanket authority for rogue behaviour, it would be unfair to indict him[11].

The decision by African leaders to rally behind the Sudanese President, it has been counter-argued, was proof that the African leaders were reneging on their promise to embrace good governance and accountability as part of the African Renaissance. This argument moves further that nearly half of Africa has ratified the Treaty voluntarily and three countries, Uganda, The Central Africa Republic and the Democratic Republic of the Congo have invited the Court to investigate, for purposes of invoking its jurisdiction, their conflict situations. And although there seems to be a perception of concentration of the Courts searchlights on Africa, it is undeniable that African national courts have been unwilling or in some cases, unable to bring the perpetrators of conflict atrocities to justice. It is inconceivable that any Sudanese Court would try al-Bashir for crimes against humanity just as Kenyan Courts have been unable to try Uhuru Kenyatta, former Deputy Prime Minister and now the President of Kenya who had been indicted following the crises that trailed the 2007 Kenyan general elections.

The Dakar Declaration of 1998 saw African nations examining factors militating against the development of Africa and promising a new beginning where the policy of non-interference in internal affairs of member countries was replaced with the concept of accountability under peer supervision. African Leaders also advocated for a court that could deter and punish genocide and crimes against humanity since these are the major human tragedies and obstacles to the economic and social development of Africa. The rampancy and the grievous activities of actors in African conflicts need to be checked for Africa to grow. Africa’s cooperation with the ICC, it is therefore argued, in the short and long run, helps Africa develop.

The danger really is that African leaders may use the ICC to target their political opponents while protecting themselves from prosecution. Certainly the ICC’s pursuit of the Lord’s Resistance Army (LRA) in northern Uganda has greatly benefited President Yoweri Museveni, who has been locked in a 25-year civil war with the rebel force led by the brigand Joseph Kony. Likewise, President Joseph Kabila has gained from the ICC’s prosecution of Jean-Pierre Bemba, his main opponent at the last Congolese presidential elections. The former Prime Minister of Kenya Raila Odinga tried to make political capital out of the ICC’s citing of Kenyatta in the 2012 Presidential contest between the two which Kenyatta won.

1.6 OVERVIEW OF THE INTERNATIONAL CRIMES BILL

The purport of the bill, in the main, is to provide measures under Nigerian law for the enforcement and punishment of crimes against humanity, war crimes, genocide and related offences. The bill seeks to do this by giving effect to the Rome Statute of the International Criminal Court which will enable Nigeria to cooperate with the International Criminal Court in the performance of its functions. Generally, the bill will help in the fight against impunity in Nigeria by demanding that those who are principally responsible for grave violations of human rights and humanitarian laws are investigated and prosecuted, and where applicable, at the ICC.

The bill makes it clear that it is not all provisions of the Rome Statute that shall apply to Nigeria. Specifically, it provides in Section 2 those provisions that shall have the force of law in Nigeria when the bill is passed to include those provisions in relation to making requests to Nigeria by the ICC for assistance and the method of dealing with those requests; the conduct of investigation by the Prosecutor of the Criminal Court; the means of bringing and the determination of proceedings before the Criminal Court; the enforcement of sentences of imprisonment or other measures or related matters imposed by the Criminal Court and how Nigeria can make requests to the Court for assistance and the method of dealing with those requests. Consequently, the relevant provisions of the Rome Statute that may be enforced in Nigeria when the bill becomes law are: Part 2 on jurisdiction, admissibility and applicable law; Part 3 on the general principles of criminal law; Articles 51 and 52 on the rules of procedure, evidence and Regulations of the Court respectively; Part 5 on the investigation and prosecution of crimes within the jurisdiction of the court; Part 6 on the conduct of trials; Part 7 on penalties; Part 8 on appeals and revision of acquittals, convictions or sentences; Part 9 on International co-operation and judicial assistance; and Part 10 on the enforcement of sentences and other measures imposed by the Court. The Attorney General of the Federation has the responsibility, on behalf of the Government of Nigeria, to exercise any power, duty, or function imposed by a provision of the Rome Statute, Rules of Evidence or to perform or cause to be performed any such function assigned to a State Party, such as Nigeria, and his consent is required for prosecutions although his consent is not a pre-condition for the arrest of a suspect in Nigeria.

The bill classifies the crimes under International crimes and offences, and they include genocide, crimes against humanity or war crimes. Conspiring within or outside Nigeria to commit any of the offences in Nigeria, or to pervert the course of justice, aiding and abetting, including counselling or procuring, or being an accessory after the fact in relation to the offence, giving false or fabricated evidence, bribing or corrupting the Judge; or where the Judge or court official accept such offers, or interference with witnesses are all offences under the bill.

A person that may be charged with any of the said offences may rely on a defence or justification available to him under Nigerian law (Section 17 (1)), but where a provision of the law is Nigeria conflicts with a provision of international law, then in the finest principles of customary international law, the provision of the international law shall prevail (S.17 (2)). The bill states specifically that this provision, however, is without prejudice to Section 308 of the Nigerian Constitution which confers state immunity to certain categories of political office holders, like the President, the Vice-President, Governors of the 36 States that make up the Federation of Nigeria and their deputies.

It shall not be a defence for an accused to plead that the act constituting the offence was committed in obedience to, or in conformity with, the law in force at the time in the place where the offence was committed (S. 17(3)), or as established during the Nuremberg trials in the wake of WW 2, that the accused committed the act in obedience to a government or superior order, whether military or civilian, and every commander shall be responsible for any offence committed by forces effectively under his control.

1.7 THE NIGERIAN LEGISLATIVE PROCESS

Nigeria operates a bicameral legislative system at the Federal level[12] and the bill must be passed by both Chambers and assented to by the President to become law. As at the time of writing, the bill was awaiting second reading in both Houses during which debate on the general principles of the bill will be heard and, following the approval of a majority of the members, it will be referred to a Committee for further legislative action.

The bill will likely be referred to a joint Committee comprising the Committees on Legal Matters, Judiciary, and Human Rights; and Foreign Affairs with the first being the principal Committee of reference. Foreign Affairs Committee will come in because the bill is an International Treaty that requires domestication for it to have the force of law in Nigeria. If need be, the Committee on Inter-Parliamentary Affairs might be asked to be part of the Joint Committee to provide insights into how other Parliaments around the World have treated the Statute when it came to them for domestication.

At the Committee level, a more detailed analysis of the bill, including expectedly, a public Hearing during which stakeholders and interested observers may make inputs for the improvement of the bill, will be made. The bill will then be presented to the Houses in plenary with the suggested amendments (if any), which suggestions will be debated and adopted or jettisoned. Thereafter, if by a simple majority, either by voice vote or by division if a request is made to that effect, the bill will be read a third time and passed.

These steps are basically carried out in the two Houses. If there is any difference between what the two Houses have passed, a Conference Committee will be constituted separately by the Houses and this Conference Committee will meet in a joint session to iron out the difference (s) and harmonise the bill into one single body of legislative proposals. Thereafter, a clean copy of the bill is prepared by the Clerk of the National Assembly and sent to the President for his signature. That effectively will make the bill a law in Nigeria upon which rights and legal obligations may arise.

1.8 PUSHING THE INTERNATIONAL CRIMES BILL THROUGH THE NIGERIAN LEGISLATURE

Impunity and criminal atrocities in conflict situations have happened in Nigeria. During the Nigerian civil war of 1967-70 when the Eastern part of the country (which was called the Republic of Biafra) attempted to secede from the federation, the federal government employed starvation as a means of winning the war that ensued. Markets, schools, hospitals and such-like institutions were routinely bombed by federal forces.[13]

Since 2009, with the upsurge in insurgent activities by the extremist Islamic sect Boko Haram in the North-Eastern part of Nigeria, there have been increased instances of cases of crimes against humanity. The group has attacked religious clerics, Christians, political leaders, Muslims who oppose the group, members of the police and security forces, students, pupils in schools, journalists as well as innocent villagers. It has engaged in large scale-indiscriminate bombing attacks against civilian objects, including deliberate attack on churches, primary and secondary schools, recreation grounds, etc. In April of 2014, the group abducted about 300 girls from a secondary school in Chibok and has threatened to sell or force them into marriages.

Boko Haram’s brutal terrorist campaign in Northern Nigeria demands urgent action to protect the civilian population. The group has killed thousands and forced hundreds of thousands to flee their homes, sparking a humanitarian crisis. Under the Rome Statute, these are plainly crimes against humanity and are issues the bill, if signed into law, should be able to address.

The International Crimes Bill is an Executive bill introduced through a transmission from the President of the Federal Republic. Executive bills usually are giving priority in the National Assembly. But such priority must be accorded if the executive that submitted the bill indicates interest in the passage of the bill by lobbying the members of the National Assembly. The executive has dragged its feet in seeing the passage of the bill. As indicated earlier, the ICC has limited resources to cover a global jurisdiction, and therefore relies on domestic states to investigate and prosecute their own cases. In a number of reports, including a 98-page report by Human Rights Watch, it was noted that while the militant Islamist group have committed widespread and systematic murder and persecution amounting to crimes against humanity, the government security forces have also engaged in numerous abuses, including extra-judicial killings. The Nigerian government will be unwilling to push the passage of a bill, even an International Treaty, that would expose its forces to international criminal sanctions and that may be the location of the delay in passing the bill in the legislature. This is because, as earlier observed, the ICC must often cooperate with state officials who themselves, sometimes, are suspected of committing atrocities. The bill has been listed severally in the Order Paper of both Chambers but partly as a result of the fears expressed above and partly as a result of a tight legislative schedule, the bill is being delayed to death.

This is where the civil society must come in. An alliance of like-minded and common-interest non-governmental Organisations must aggregate to lobby for the passage of the bill. As noted, because sometimes the top echelon of the government of a country could be cited for the violations, politicians vacillate in seeing the process of the passage of the bill through. A sustained push and campaign for its passage must therefore be of utmost concern to the civil society in Nigeria if the bill will be signed into law before 2015 to eschew a situation where it begins a new legislative journey in the next National Assembly. President Goodluck Jonathan has not evinced the kind of opposition to the Treaty as former President Obasanjo did. That gives one the hope that with sustained prodding and push, the bill can be passed and signed within the life of this National Assembly

1.8 CONCLUSION

The legislative wheel in Nigeria grinds slowly. Since the first reading of the bill in June 2012 in the Senate and in September 2012 in the House of Representatives, there has been a lot of dilly-dallying primarily arising from fears of the potentials of the bill in limiting the activities of the security agencies in putting down the rebellion of the militant Islamists and in curbing insecurity orchestrated by the vicious insurgency in the North-East of the country. Also for reasons of practical legislative schedule, the bill has not made much progress. These fears should be situated against the sublime global concerns about the conduct of wars and armed conflicts as, not only would impunity be reigned in, but there are provisions for a government fund for the rehabilitation of victims of crimes against humanity. That part, if nothing else, should be the focal fillip for the Nigerian government to facilitate the passage of the bill. Only recently, Nigerian sketched a comprehensive plan for the development of the North-East Region of the country, the hotbed of the insurgency. At the heart of the programme is the rehabilitation of the victims of the insurgency. Passing the bill will showcase the legislature’s commitment to Nigeria’s fidelity to International Legal Instruments, especially one that curbs unacceptable behaviours in the distressing activities of the conduct of wars and armed conflicts.


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