NIGERIA AND THE FIGHT AGAINST IMPUNITY: A PROMISE NOT FULFILLED?
Benson Chinedu Olugbuo
Lot 87, Sacré Coeur 3, Pyrotechnie x VDN
BP 45435, Dakar-Fann, Sénégal Tel: 221-33-869-4686
1 April 2013
The current Nigerian government under the administration of Goodluck Ebele Jonathan has shown interest in the rule of law and the administration of international justice. This is in relation to the passage of the Anti-Terrorism Act of 2011 aimed at holding accountable those who commit terrorism related activities in Nigeria. Furthermore, the government has submitted a comprehensive international crimes Bill to the National Assembly to implement the Rome Statute of the International Criminal Court into domestic law. Despite some of the issues raised on provisions of the Bill discussed in this study, it is submitted that the Bill is a better version compared to the previous attempts by the Nigerian government to domesticate the Rome Statute. However, the introduction of the Bill into the National Assembly has not been followed up by commitment to ensure that the Bill is passed into law. Furthermore, there is currently lack of political will in Nigeria to investigate and prosecute international crimes especially, the crimes committed during the presidential elections in 2011 and recent Boko Haram attacks against innocent Nigerian civilians. This is because some government officials and politicians are complicit in the commission of these crimes. Furthermore, there are no adequate laws in Nigeria that will aid the effective prosecution of international crimes using the principle of complementarity.
The report finds that Nigeria has a robust civil society movement involved in activities aimed at ending impunity for international crimes at national and regional levels. However, there is currently lack of coordination in activities aimed at supporting international justice. This is because the Nigerian Coalition for the International Criminal Court currently lacks the funds and technical manpower to address the changing landscape of international justice in Nigeria. It may be necessary to support the coalition to ensure effective coordination of efforts by civil society organisations in Nigeria in the fight against impunity. The report further finds that some civil society organisations have mainstreamed gender justice into international justice activities and there is significant improvement in women involvement in advocacy and capacity building. However, this finding is related mostly to urban based organisations and excludes several community based advocacy groups. The study finds that there is minimal visible impact of international criminal justice proceedings and civil society advocacy activities on domestic politics, peace processes, security concerns and national reconciliation in Nigeria. This is because the call for the prosecution of those responsible for electoral violence in 2011 has not been matched by any visible change in the volatile nature of Nigerian politics as the 2015 general elections approaches. The report finds that Nigeria has the human, political, financial and judicial capacity to cooperate with the International Criminal Court in the fight against impunity under the complementarity principle. However, this is currently not feasible because of lack of a legal framework. The current Bill in the National Assembly contains several provisions in relation to cooperation with the Court. However, the report argues for the accession of the Agreement on Privileges and Immunities of the International Criminal Court and the implementation of the substantive provisions through the Bill in the National Assembly to ensure cooperation with the Court.
Table of contents
1.2 Background to the study……………………………………………………………………………………7
APIC - Agreement on Privileges and Immunities of the Court
BIA – Bilateral Immunity Agreement
CD - Campaign for Democracy
CDD – Centre for Democracy and Development
CDHR - Campaign for the Defense of Human Rights
CICC – Coalition for the International Criminal Court
CLO - Civil Liberties Organisation
CRP -Constitutional Rights Project
CSO – Civil Society Organisation
FEC – Federal Executive Council
ICC – International Criminal Court
ICJ – International Criminal Justice
ICTR - International Criminal Tribunal for Rwanda
ICTY - International Criminal Tribunal for the former Yugoslavia
MASSOB – Movement for the Actualization of the Sovereign State of Biafra
MEND- Movement for the Emancipation of Niger-Delta
MFA – Ministry of Foreign Affairs
MOSOP- Movement for the Survival of Ogoni People
MRA - Media Rights Agenda
MOJ – Ministry of Justice
NAF – Nigerian Armed Forces
NCICC – Nigerian Coalition for the International Criminal Court
NHRC – National Human Rights Commission
NGO – Non-Governmental Organisation
NPF – Nigerian Police Force
OPC - Odua Peoples’ Congress
SAN – Senior Advocate of Nigeria
SCSL - Special Court for Sierra Leone
SVTF – Special Victims’ Trust Fund
“Nigeria takes her obligations towards realizing the ideals of the Rome Statute of ICC very seriously. We have ratified the Rome Statute as far back as 2001. Majority of the crimes created in the Statute are reflected in Nigerian national legislations. Notwithstanding, the procedure for consolidating these crimes into one composite legislation is ongoing.”
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) and Agreement on Privileges and Immunities of the Court (APIC). 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. 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. 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. 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. 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.
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. This is unlike the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), 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. The ICC is expected to complement and not supplant the prosecution of international crimes by national jurisdictions. 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. 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’.
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’. 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.
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. The draft bill was gazetted by the government on 17 July 2012 is currently before the National Assembly in Abuja.
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.
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:
a) Whether there is political will in Nigeria to investigate and prosecute international crimes
b) Whether there are adequate laws in Nigeria that will aid the effective implementation of the Rome Statute of the ICC
c) Whether there are NGOs and CSOs working on international justice issues in Nigeria
d) Whether gender justice is mainstreamed in international justice advocacies carried out in Nigeria
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
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
The principle of complementarity is the process through which the ICC complements the primary duties of states to investigate and prosecute international crimes. Under issues of admissibility, the ICC is expected to take into consideration the principles of complementarity in paragraph 10 and article 1 of the Rome Statute in determining whether a case is admissible before the ICC. The principle of complementarity is very important in the efficient functioning of the ICC. The Rome Statute provides that ‘[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.’ The complementarity principle is unique to the ICC.
The principle of complementarity has evolved into a hybrid relationship between the ICC and states referred to as positive, proactive or active complementarity and defined as a proactive policy of cooperation aimed at promoting national proceedings. It is regarded as a managerial concept that governs the relationship between the court and domestic jurisdictions on the basis of three cardinal principles: the idea of a shared burden of responsibility, the management of effective investigations and prosecutions, and the two pronged nature of the cooperation regime. It is also defined as a process by which the OTP ‘would actively encourage investigation and prosecution of international crimes within the court’s jurisdiction by States where there is reason to believe that such States may be able or willing to undertake genuine investigations and prosecutions and where the active encouragement of national proceedings offers a resource-effective means of ending impunity.’ In support of this argument, it should be noted that in its Prosecutorial Strategy from 2009 to 2012, the OTP argues that it wouldoperate on four fundamental principles: positive complementarity, focused investigations and prosecutions, addressing the interests of victims, and maximizing the impact of the OTP’s work. The OTP further argues that it has ‘adopted a positive approachto complementarity, meaning that it encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.’
In analysing the need for positive complementarity, it is important to highlight some provisions of the Rome Statute that support this view. Under part 9 of the Rome Statute, which provides for international cooperation and judicial assistance, the ICC ‘may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.’ The OTP is also given the opportunity to seek for additional information from States regarding crimes that fall under the jurisdiction of the ICC. The OTP can defer an investigation at the request of the state to allow the state to conduct its own investigations and trials. Furthermore, the OTP can encourage states parties to investigate and prosecute crimes and may at any time reconsider a decision to initiate an investigation or prosecution based on new facts or information which may be related to the ability of the state concerned to hold its nationals accountable.
These provisions in the Rome Statute recognise the role of the ICC in promoting positive complementarity. Positive complementarity is an important tool in the fight against impunity and should not be ignored for several reasons. The ICC can only try a few of those who bear responsibility for crimes of international concern. If there are no effective national judicial mechanisms, there will be serious issues of impunity gap which could undermine any success recorded by the ICC. Furthermore, national judicial institutions also offer the best places to try these crimes, as they would serve as a deterrent to others and give victims opportunity to participate and closely follow the proceedings at the national level. Furthermore, positive complementarity will ensure the development of national judicial systems in the prosecution of international crimes.
There is need to domesticate international crimes under the Rome Statute. There is currently no law in Nigeria that recognizes genocide as a crime. Nigeria has not ratified the Genocide Convention of 1948 and will therefore rely on the customary rule of international law to punish the crime of genocide. However, the domestic implementation of the Rome Statute serves as a good opportunity for Nigeria to amend the criminal and penal codes to enable Nigerian courts to be able to prosecute these crimes effectively. Regarding war crimes, Nigeria has ratified the Geneva Conventions and the Additional Protocols I and II in 1961 and 1988 respectively. However, the Protocols have not been domesticated like the Geneva Conventions. The incorporation of the Rome Statute therefore offers Nigeria an opportunity to address the issues of incorporating the Protocols into domestic law and also updating the definition of war crimes to reflect emerging trends in international criminal justice. The need to incorporate international instruments into national law cannot be overemphasized. It enables the citizens to go to court and insist on their rights. It also serves as a launching pad for public interest litigations. For example, based on the Geneva Convention Act which confers universal jurisdiction to Nigerian courts for war crimes, several human rights activists and non-governmental organisations called on the former Nigerian Attorney-General and Minister of Justice to extradite former President of Liberia, Charles Taylor to the Special Court for Sierra Leone or commence legal actions against him under the Geneva Conventions Act for crimes committed in Sierra Leone.
As earlier discussed, the Federal Executive Council of Nigeria recently submitted a bill to the National Assembly to domesticate the Rome Statute under national law. The current bill is an improved of the previous versions in 2001 and 2006. This is because the bill provides a template for cooperation between the ICC and Nigeria which was not possible in previous versions of the bill. The ICC Bill provides that the objectives of the bill are to:
(a) provide for measures under Nigerian law for the punishment and enforcement of international crimes of genocide, crimes against humanity and war crimes;
(b) give effect to certain provisions of the Rome Statute of the International Criminal Court done at Rome on July 17, 1998 (in this [Bill] referred to as “the Rome Statute”)
(c) enable Nigeria cooperate with the International Criminal Court (in this [Bill] referred to as “the Criminal Court” in the performance of the its functions under the Rome Statute.
The ICC Bill makes provision for active participant universal jurisdiction for international crimes committed outside Nigeria as long as the individual is present in Nigeria. The ICC Bill provides that proceedings may be instituted against any person that committed international crimes if the person is a citizen or permanent resident of Nigeria, has committed the offence against a citizen or permanent resident of Nigeria or is present in Nigeria after the commission of the offence. The ICC Bill vests original jurisdiction for adjudication of international crimes in the Federal High Courts, the High Court of the Federal Capital Territory and the High Court of any States in Nigeria. Furthermore, Nigerian courts are empowered to try international crimes committed by a person outside Nigeria. Proceedings may be instituted against the person for international crimes outside Nigeria and courts in Nigeria have all the powers to try the offence as if the offence had been committed within the territorial limits of Nigerian courts. It should be noted that if section 23 of the bill is red in isolation, the textual interpretation is that Nigerian courts can indict persons who committed international crimes outside Nigeria in absentia. However, read with section 22 which deals with jurisdiction of Nigerian courts for international crimes it means that Nigeria can only prosecute those responsible for international crimes committed outside Nigeria if they are present in Nigeria. However another argument can be made that courts’ in Nigeria will have jurisdiction over persons who commit international crimes against Nigerian citizens or permanent residents.
Under the principle of positive complementarity, the ICC Bill provides that Nigeria may request for assistance from the ICC in relation to the investigation and prosecutions of crimes in the Rome Statute for which he maximum penalty under Nigerian law is a term of imprisonment of not less than 5 years. The ICC Bill also provides that Nigeria may act as a state of enforcement of sentences by the ICC. The bill provides for the Nigerian Attorney-General to notify the relevant government ministries, departments and agencies including the National Security Adviser whenever the need arises. However there is a differentiation between citizens of Nigeria and foreigners. This is because the bill provides that the state of the foreigner will consent to the convicted person serving his or her sentence in Nigeria and the Attorney-General is satisfied that the ICC has agreed to the conditions stipulated by a regulation made for that purpose. The ICC Bill provides that the prosecutor of the ICC may conduct investigations in Nigeria as provided in the Rome Statute. Furthermore, ICC judges can sit in Nigeria to take evidence, conduct or continue a proceeding; give a judgment in a proceeding or review a sentence imposed by the ICC.
In relation to the rights of victims’ of international crimes, the bill makes provision for the establishment of a Special Victims’ Trust Fund (SVTF) for the benefit of victims of crimes and the families of the victims. The bill further provides for the forfeiture of assets to the SVTF for those convicted of international crimes in Nigeria. The bill further provides that a victim of an international crime can institute a civil action against appropriate parties and is entitled to compensation, restitution and recovery for economic and psychological damages which shall be met from the SVTF. The ICC Bill also provides for the protection of witnesses and their families from intimidation, threats, and reprisals from a person charged with an offence or his or her associates or any form of reprisals from persons in positions of authority. The bill grants legal personality to officials the ICC and domesticates the relevant provisions APIC.
Despite several positive provisions in the bill, there are several issued that should be addressed for the bill to make an important contribution in the fight against impunity in Nigeria. The first issue is that the bill provides that obligations under the Rome shall be discharged by the Attorney-General on behalf of the government. This provision is unnecessary and may result in political interference of the Attorney–General in the investigation and prosecution of international crimes. The alternative to this provision is the establishment of an independent coordinating body or inter-ministerial committee that will handle the relationship between the ICC and Nigeria. On the alternative, judges of the High Courts in Nigeria should be mandated by the bill to act on behalf of Nigeria since it has already been stated that the High Courts have original jurisdiction for international crimes. Second, the bill provides that the consent of the Attorney-General is required for all prosecutions under the bill whether in Nigeria or elsewhere. It is argued that the Attorney-General is a political appointee and may be under the influence of the executive in the discharge of duties under the Rome Statute. This means that the consent for prosecution should be in the office of the Permanent Secretary, Director of Public Prosecution or Solicitor-General of the Federation who is a career civil servant. Third, the bill protects the immunity clause of the Nigerian constitution. The Nigerian Constitution provides that ‘‘no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office […]. This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor […].’’ The provision is incompatible with the provision of Article 27 of the Rome Statute. Nigeria can either amend the constitution to bring it in conformity with the Rome Statute or give the provision a purposive interpretation to the effect that though there is immunity in the constitution, any Nigerian leader that commits any of the crimes under the Rome Statute cannot plead the immunity under the constitution as bar to prosecution. However, it is argued that the amendment option will better serve the citizenry in view of experiences on human rights abuses perpetrated by past Nigerian leaders. It will also send a strong signal to politicians and potential human rights abusers and invariably serve as a deterrent to potential dictators in the country. According to Mohammed Ladan:
Article 27 of the [Rome] Statute therefore necessitates a constitutional amendment to section 308 of the 1999 Constitution by providing an exception to this absolute immunity. This amendment could be minor, and may simply consist of the addition of a provision making an exception to the principle of immunity for the Head of State or other officials, should they commit one of the crimes listed under the Statute.
Fourth, in relation to the rights of victims to institute civil proceedings to seek for compensation, restitution, and recovery for economic damages, it is submitted that this proceeding is unnecessaryand victim or families of the victims should be able to approach the SVTF for an award based on the judgment and recommendation of the High Court. It is further argued that the SVTF should be open to contributions and government subventions and should be used to alleviate the sufferings of victims of international crime and the assistance need not wait until the conviction of the accused persons.
Fifth, the bill does not provide for the regulation of sentences for international crimes in Nigeria. This means that Nigerian courts can apply the death sentence though the maximum sentence by the court is a life sentence depending on the crime committed. However, the Rome Statute also provides that ‘[n]othing in this part affects the application by states of the penalties prescribed by their national law, nor the law of the states which do not provide for penalties prescribed in this part.’ It is submitted that despite the above provisions, it is important for the bill to state clearly the punishments for perpetrators of international crimes in Nigeria.
It seems from the foregoing that there is interest on the side of the government to confront impunity in relation to the domestication of the Rome Statute under Nigerian law. However, the reality is that since the bill was sent to the National Assembly nothing has been heard of it again. A senior government official that is closely involved in the process confirmed that there is currently no positive development regarding the status of the bill since it was sent to the National Assembly in 2012. It is expected that the government of Nigeria should galvanise the support needed for the National Assembly to pass the bill into law.
The question as to why there is a slow response on the passage of the bill into law can be seen from different angles. The Bill was gazetted on July 17 2012 and subsequently sent to the National Assembly for enactment into law. However, there has not been any further action on the National Assembly. A former Legislative Aid in the National Assembly informed me that the Senate Committee on Business and Rules informed him that why the Bill has not been table before the Senate for a second reading is because “nobody has shown interest in the bill since the first reading”. He further argues that preparation of background information for the Senate Leader could help to jumpstart the process.
In relation to the involvement of NGOs and CSOs, it should be noted that that NCICC had participated as a member of the Working Group coordinated by the MOJ. However, NCICC members were not aware that the Bill had been gazetted and currently before the National Assembly. The information they had was a draft copy of the bill presented to the Working Group which is different from the copy currently before the National Assembly. NCICC current lack of engagement with the bill is as a result of lack of information on the current status of the bill. This is because the NCICC has been involved in other projects related to the fight against impunity. For example, they are currently running a social media outreach program aimed at training members on how to use the mass media to fight impunity. Furthermore, they are planning a meeting on the Anti-Terrorism Act and fight against impunity while following up on the Jos conflict that forms part of the preliminary investigations of the OTP in Nigeria. On the receipt of the official copy of the ICC Bill before the National Assembly, the NCICC is currently planning series of events to galvanise public support for the passage of the bill into law. It is therefore argued that effective advocacy by NGOs and CSOs will help the legislators to appreciate the importance of the ICC Bill. Furthermore advocacy is needed to get the lawmakers to appreciate the importance of the Rome Statute and to pass enabling laws to give legal teeth to the ICC Bill in Nigeria.
Another issue militating against the passage into law of the ICC Bill is government policy regarding domestic implementation of international treaties. International treaties are regarded as secondary matters in relation to budget and fiscal policy issues. The development has trailed the several efforts aimed at passing the ICC Bill into law as the government and the National Assembly has been engaged in serious negotiations on the passage of Appropriation Bills into law.
Nigerian NGOs and CSOs have been active on international justice related issues. The Nigerian Coalition for the International Criminal Court (NCICC) which is an affiliate of the global NGO Coalition for the ICC (CICC) was formed in May 2002 and has been in the forefront for advocacy on the domestic implementation of the Rome Statute and the fight against impunity in Nigeria. The NCICC also played a role in the advocacy activities to ensure that Nigeria surrendered Charles Taylor to the Special Court for Sierra Leone. The NCICC also carried out advocacy activities to stop the President of Sudan from attending a meeting in Nigeria in 2009 after his indictment by the ICC. Furthermore, the NCICC has trained journalists and other public professionals on the provisions of the Rome Statute of the ICC and have published several materials on its advocacy efforts. In relation to the ICC Bill, the NCICC was a member of the Working Group coordinated by the MOJ that worked on the draft that was submitted to FEC. The NCICC is made of Steering Committee members which forms the core members and general members. Membership of the NCICC is by NGOs although individuals can be invited to join the Steering Committee if there are considered to have adequate knowledge and expertise on the ICC. The Steering Committee is made up of the Convenor, Chairperson and other members that head several committees including Advocacy and Publications Committee. One problem with NGOs working on international justice in Nigeria is lack of coordination and the multi-faceted advocacy carried out by NGOs and CSOs. This means that several NGOs have different issues that donors are funding which may not be related to the pursuit of international justice. The need for adequate funding, capacity building and effective coordination amongst the various actors involved cannot be over-emphasised.
Nigeria has a robust civil society movement that is involved in activities aimed at ending impunity for international crimes. For example several NGOs and CSOs were involved in the campaign to end military dictatorship in Nigeria. Organisations like Civil Liberties Organisation (CLO), Constitutional Rights Project (CRP) Campaign for Democracy (CD), Campaign for the Defense of Human Rights (CDHR) and Media Rights Agenda (MRA), Centre for Free Speech amongst others were involved in several activities aimed at ending military rule in Nigeria and the abuse of human rights. This resulted in several complaints filed before the African Commission on Human and Peoples’ Rights (ACHPR) on behalf of Nigerians. After the return to civilian government in 1999, Nigerian NGOs and CSOs also played important roles in the advancement of the international justice in Nigeria through the formation of the NCICC in 2002 and advocacy to implement the Rome Statute. An opportunity for further activism came calling when the Nigerian government granted asylum to Charles Taylor. Nigerian NGOs and CSOs mounted several advocacy campaigns for the surrender of Charles Taylor to the SCSL. NGOs and CSOs also supported individuals affected by the war in Sierra Leone to commence civil proceedings against the government of Nigeria regarding the asylum granted to Charles Taylor. It can be argued that international pressure galvanised by NGOs and CSOs in Nigeria added to regional security resulted in the surrender of Charles Taylor to the SCSL. The NCICC is carried out advocacy campaigns in 2009 regarding the visit of President Al-Bashir of Sudan to Nigeria after an arrest warrant was issued him by the ICC. Members of the NCICC petitioned the Federal Government and several government officials on Nigeria’s obligation to arrest and surrender Al-Bashir if he visited Nigeria.
In relation to truth, reconciliation and victims’ rights to reparation, the Nigerian criminal law system does not recognise the right of victims of crimes to reparations. This is similar to several countries in Africa that operate the common law system. However the provision of SVTF in the current ICC Bill is a welcome development. There have been previous attempts to address human rights abuses in Nigeria through transitional justice mechanisms. For example, the Nigerian government in June 1999 set up the Human Rights Violations Investigation Commission (Oputa Panel) which sat from June 1999 to May 2002 and submitted its report to the government of Nigeria. The Oputa Report holds military incursion into politics as one of the issues responsible for human rights violations in Nigeria. The report argues that “[m]ilitary rule has left, in its wake, a sad legacy of human rights violations, stunted national growth, a corporatist and static state, increased corruption, destroying its own internal cohesion in the process of governing, and posing the greatest threat to democracy and national integration.” The open and traperent process adopted by the Oputa Panel allowed several Nigerians to present their views and seek for redress.
However, the government of Nigeria refused to release the report citing the judgment of the Supreme Court of Nigeria in Fawehinmi vs. Babangida as the reason of the decision. The Supreme Court in that case held that under the 1999 Constitution, the Federal Government of Nigeria had no power to set up a Tribunal of Inquiry as the power was now under the residual legislative list exercisable by states only and not the federal government unlike the 1966 Constitution which made provision for such. The decision to withhold the report has been criticised by Nigerians including legal scholars as a means of supressing the truth. The report has been unofficially released online by NGOs and CSOs in Nigeria and abroad. A fall out of the Oputal Panel Report and the Supreme Court decision is the setting up of truth and reconciliation commissions by State governments in Nigeria to address human rights abuses.These include the Rivers State Truth and Reconciliation Commission set up in November 2007, Osun State Truth and Reconciliation Commission set up in February 2011 and Ogun State Truth and Reconciliation Committee set up in September 2011.
The complex mix between religion, ethnicity, politics and control of natural resources in Nigeria have led to several ethnic based militia groups including Movement for the Actualization of the Sovereign State of Biafra (MASSOB), Odu Peoples’ Congress (OPC), Movement for the Emancipation of Niger-Delta (MEND), and Movement for the Survival of Ogoni People (MOSOP) amongst others. In June 2009 the government of late Umaru Musa Yar’adua declared an amnesty which allowed militants to hand in weapons for cash and other benefits of rehabilitation. This was pursuant to the provisions of the Nigerian Constitution of 1999.The amnesty proclamation was in response to the agitation of Niger-Delta militants for self-determination and the crippling effects of its campaign on the production and export of crude oil which is the main stay of the economy.
The current war on terror against the Boko Haram sect is not a new phenomenon. The only troubling issue is that Boko Haram has assumed a wider dimension linking up with other AL-Qaeda affiliates in Africa. The sources of conflicts in Nigeria are myriad. These include corruption, religious and ethnic issues, competition for scarce resources, inability to implement laws. Several conflicts in Nigeria have a combination of religious, ethnic and political connotations. In fact most religious conflicts in Nigeria usually assume inter-ethnic colouration even when they begin as purely religious disagreements. In addition, the reverse is sometimes the case where socio-economic conflicts often degenerate into inter-religious conflicts. Hence, the boundary between ethnic and religious conflicts in Nigeria is very hazy and not well defined. Nigeria has witnessed ethnic, economic, religious and political conflicts since independence and current threat by Boko Haram and affiliated groups is threatening the security of the Nigerian state.
The limited success recorded by the amnesty granted to the Niger Delta militants has also prompted several highly placed Nigerians including the Sultan of Sokoto to request the Federal Government to grant amnesty to Boko Haram members. Whether the government will accede to the request is subject to debate. This is because the government has consistently maintained that Boko Haram members do not have any genuine interest to negotiate peace with the government.
The current stance of the present administration of Nigeria on the fight against impunity is commendable. However, more needs to be done by the government to translate the commitment into a reality. Nigeria’s population size and political clout in Africa stands it out both in the continent and the world at large as an important case study. It is submitted that an effective advocacy in Nigeria to ensure an end to impunity for international crimes will have far-reaching effects in other African countries struggling with conflicts and mass violence. The study reiterates the need for Nigeria to hold their citizens accountable for international crimes. This is because the ICC is a court of last resort and can only try very few people. If a state party to the Rome Statute like Nigeria is not able to hold their citizens accountable, it will result in impunity gap that will erase any success recorded by the ICC. Furthermore, Nigeria needs to balance the fight against Islamic militancy with the need to protect the rights of citizens including defendants. This is because innocent citizens of Nigeria currently bear the brunt of the Islamic militancy and human rights abuses committed by both Boko Haram and the Nigerian security forces. It is therefore important to remind the government of Nigeria her obligation to hold accountable those who commit international crimes whether they are Islamic militants or government security forces. For an effective implementation process to be carried out in Nigeria in relation to the domestication of the Rome Statute, the following interim recommendations are made to the different stakeholders involved:
a) Ministry of Justice (MOJ) should produce a list of domestic implementation bills of international treaties ratified by Nigeria and submitted to the National Assembly and their current status.
b) The MOJ should establish an inter-ministerial committee on the domestic implementation of the Rome Statute in Nigeria.
c) The MOJ should consult implementing legislations passed by other countries especially African governments for best practices in the continent and beyond. However, such a process should take into consideration cultural diversity and legal pluralism existing in Nigeria.
d) The MOJ should monitor the progress of the ICC Bill in the National Assembly and participate in the public hearings to make clarifications when necessary.
e) The MOJ should collaborate with MFA to write and submit a memo to the Federal Executive Council on the need for the accession of the APIC by Nigeria.
a) The Ministry of Foreign Affairs (MFA) should publish a list of all international treaties ratified by Nigeria from independence till 2013 including the status of their domestic implementation.
b) The MFA should have a monthly publication of international treaties ratified by Nigeria and relevant ministries responsible for implementation.
c) The MFA should participate in the inter-ministerial committee to be set-up by the MOJ on the domestic implementation of the Rome Statute.
d) The MFA should participate in the public hearing and stakeholders meetings to be organised by NGOs and the National Assembly in relation to the domestic implementation of the Rome Statute.
e) The MFA should also ensure that Nigeria complies with her treaty obligations regarding the Rome Statute of the ICC and highlight the need for the government to cooperate with the Court in its investigations in Africa
a) The National Assembly should publish a list of all international treaties passed into law and the status of those currently pending before it.
b) Should organise public hearings and stakeholders meeting to solicit for inputs from Nigerians on international treaties currently under consideration by the National Assembly especially the ICC Bill currently before it.
c) The National Assembly should make public the relevant committees that deal with international treaties and those that have oversight functions regarding government agencies that implement the treaties.
d) There should be a database of all international treaties passed into law by the National Assembly and the relevant agencies responsible for implementation.
a) The National Human Rights Commission (NHRC) should collaborate with MOJ and MFA to publicise international instruments ratified and implemented by Nigeria since 1960 till date.
b) The NHRC should participate in the inter-ministerial committee to be established by the MOJ on the domestic implementation of the Rome Statute.
c) The NHRC should embark on public enlightenment campaigns on the Rome Statute and its potentials to overhaul the Nigerian criminal justice system.
d) The NHRC should partner with NGOs and CSOs to publish a report card on the ratification and domestic implementation of international treaties in Nigeria from 1960 to 2013.
a) The Nigerian Police Force (NPF) should collaborate with NGOs and CSOs in the stakeholders’ workshops and seminars aimed at enlightening its officers and men on the role of law enforcement officers under the Rome Statute criminal justice system.
b) The NPF should participate in the inter-ministerial committee to be set-up by the MOJ on the domestic implementation of the Rome Statute.
c) The NPF should also train their officers involved in peacekeeping missions on the principles of international humanitarian law and the role of the NPF.
d) The NPF should collaborate with NGOs and CSOs to distribute abridged or simplified copies of the Rome Statute to its members.
e) The Nigerian Police Force should ensure the arrest and surrender of any suspect indicted by the ICC that opts to visit Nigeria in violation of her treaty obligations before the ICC.
a) The Nigerian Armed Forces (NAF) should embark on workshops and seminars to educate its officers and men on the provisions of the Rome Statute and its application in the military.
b) Members of the NAF sent on peacekeeping missions should be informed of the principles of international humanitarian law and the rules of engagement.
c) Officers and men of the NAF should participate in the inter-ministerial committee to be set-up by the MOJ on the domestic implementation of the Rome Statute.
a) There should be a coordination of the roles of NGOs and CSOs in Nigeria on the domestic implementation of the ICC Bill currently before the National Assembly and the accession of APIC by the Federal Executive Council.
b) NGOs and CSOs in Nigeria should collaborate with the relevant committees in the National Assembly to organise public hearings on the ICC Bill.
c) NGOs and CSOs should advocate for the removal of the immunity clause in the Nigerian Constitution to ensure that state officials who commit international crimes are not protected by the constitution.
d) NGOs and CSOs should produce copies of the ICC Bill currently before the National Assembly for circulation to different stakeholders for inputs and comments. This is to ensure that the process of the domestic implementation of the Rome Statute in Nigeria is free, open and inclusive.
e) NGOs should be supported to serialise the contents of the ICC Bill in major Nigeria newspapers.
f) NGOs and CSOs should be supported to use social media to galvanise support for the passage of the ICC Bill and popularization of its contents to a wider audience in Nigeria through developing downloadable applications when the bill is passed into law.
Books and book chapters
Alabi, D. “Religious Conflicts in Northern Nigeria: A Critical Analysis” in Joab-Peterside, S. & Ukiwo, U. (eds) The Travails and Challenges of Democracy in Nigeria , 1999 – 2003 and Beyond (2007) Port Harcourt: Centre for Advanced Social Sciences
Benzing, M.”‘The complementarity regime of the International Criminal Court: International criminal justice between states sovereignty and the fight against impunity” in von Bogdandy, A. and Wolfrum,R. (eds.), Max Planck Yearbook of United Nations Law (2003) The Hague: Koninklijke Brill N.V
Bergsmo, M. Active Complementarity: Legal Information Transfer (2011) Oslo: Torkel Opsahl Academic EPublisher
Cryer, R., Friman, H., Robinson, D., and Wilmshurst, E., An Introduction to International Criminal Law and Procedure (2007) New York: Cambridge University Press
du Plessis, M (ed.), African Guide to International Criminal Justice (2008) Pretoria: Institute for Security Studies
Olugbuo, B “Implementing the International Criminal Court Treaty in Africa: The Role of NGOs and Government Agencies in Constitutional Reform in Clarke, K and Goodale, M (eds.), Mirrors of Justice: Law and Power in the Post-Cold War Era (2010) New York: Cambridge University Press
Burke-White, W. “Implementing a policy of positive complementarity in the Rome system of justice” (2008) 19 Criminal Law Forum, 59
Newton, M. “‘The International Criminal Court Preparatory Commission: The way it
is and the way ahead’ (2000) 41 Virginia Journal of International Law 204
Odinkalu, C. “‘Back to the future: The imperative of prioritising for the protection of human rights in Africa” (2003) 47 Journal of African Law 1
Onuoha, F. “The Islamist challenge: Nigeria's Boko Haram crisis explained” (2010) 19 African Security Review, 54
Stahn, C. “Complementarity: A Tale of Two Notions” (2008) 19 Criminal Law Forum, 87
Yusuf, H. “Travails of Truth: Achieving Justice for Victims of Impunity in Nigeria” (2007) 1 International Journal of Transitional Justice 268
Agreement on the Privileges and Immunities of the International Criminal Court
Geneva Conventions Act, Laws of the Federation of Nigeria 2004 (formerly Cap 162 Laws of the Federation of Nigeria 1990)
Nigerian Constitution of 1999
Prevention of Terrorism Act 2011
Statute of the International Criminal Court
Uganda’s International Criminal Court Act 2010
List of cases
David Anyaele and Emmanuel Egbuna v. Charles Taylor, the President of the Federal Republic of Nigeria and Three Others Suit No FHC/ABJ/M/216/04
Fawehinmi vs. Babangida (2003) Nigerian Weekly Law Report (PT 808) 604
African Commission on Human and Peoples’ Rights “Nigeria – Decision on Communications” available online at http://www.achpr.org/communications/decisions/?c=55&o=845 (accessed 27 March 2013)
Andrew Walker “What Is Boko Haram?” United States Institute for Peace Special Report 308 available online at http://www.usip.org/files/resources/SR308.pdf (accessed 13 February 2013)
Chiedozie, I. “JTF soldiers to face trial for rape, murder, torture” Punch Newspapers, 2 September 2012 and available online at http://www.punchng.com/news/jtf-soldiers-to-face-trial-for-rape-murder-torture/ (accessed 13 February 2013)
Fagbohunlu, B. “Challenging Charles Taylor’s Political Asylum in Nigeria” Human Rights and Justice Sector Reform in Africa available online at http://www.opensocietyfoundations.org/sites/default/files/fagbohunlu.pdf (accessed 27 March 2013)
Human Rights Violations Investigation Commission Report May, 2002 available online at http://www.nigerianmuse.com/nigeriawatch/oputa/OputaSummaryRecommendations.pdf (accessed 27 March 2013)
Human Rights Watch “Spiraling Violence: Boko Haram Attacks and Security Force Abuses in Nigeria” October 2012 and available online at http://www.hrw.org/sites/default/files/reports/nigeria1012webwcover.pdf (accessed 13 February2013)
International Criminal Court “Prosecutorial Strategy 2009 ‐ 2012” 1 February 2010 available online at http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf (accessed 11 March 2013)
International Criminal Court “The Office of the Prosecutor: Report on Preliminary Examination activities” 13 December 2011 available online at http://www.icc-cpi.int/NR/rdonlyres/63682F4E-49C8-445D-8C13-F310A4F3AEC2/284116/OTPReportonPreliminaryExaminations13December2011.pdf (accessed 13 February 2013)
Nigerian Coalition for the International Criminal Court “Communiqué issued at the stakeholders meeting on the International Criminal Court organized by the International Human Rights Law Group in collaboration with the Centre for Democracy and Development (CDD) and Baobab For Women’s Human Rights from 13th – 15th May, 2002 At Harmonia Hotel, Abuja” available online at http://www.iccnow.org/documents/AbujaCOMMUNIQUEMay02.pdf (accessed 13 February 2013)
Nigerian Coalition for the International Criminal Court “Nigerian Coalition for the ICC calls on Nigerian Government to Withdraw Al-Bashir’s Invitation to Abuja AU Meeting” 28 October 2009 available online at http://www.iccnow.org/documents/NCICC-Final_press_release.pdf (accessed 27 March 2013)
Nigeria First “Text of President Yar’Adua’s Amnesty Proclamation” 25 June 2009 available online at http://www.nigeriafirst.org/printer_8923.shtml (accessed 27 March 2013)
Nigerian Watch “Sultan of Sokoto requests full amnesty for Boko Haram members” 6 March 2003 available online at http://www.nigerianwatch.com/news/1398-sultan-of-sokoto-requests-full-amnesty-for-boko-haram-members (accessed 27 March 2013)
Obiagwu, C. ‘Why Taylor’s stay is illegal’ Vanguard Newspapers Friday, 5 September 2003 available online at http://allafrica.com/stories/200309050631.html (accessed 11 March 2013)
Office of the Prosecutor’s Report on the activities performed during the first three years (June 2003 – June 2006) 14 September 2006, available online at http://www.icc-cpi.int/NR/rdonlyres/D673DD8C-D427-4547-BC69-2D363E07274B/143708/ProsecutorialStrategy20060914_English.pdf (accessed 11 March 2013)
Okpi, A. “2013 Budget: Senate demands 100% implementation” Punch Newspapers 24 March 2013 available online at http://www.punchng.com/news/2013-budget-senate-demands-100-implementation/ (accessed 27 March 2013)
Onuorah, M. “FEC okays bill on war crimes, genocide, others” The Guardian Newspapers, 31 May 2012 available online at http://www.ngrguardiannews.com/index.php?option=com_content&view=article&id=87791:fec-okays-bill-on-war-crimes-genocide-others&catid=1:national&Itemid=559 (accessed 13 February 2013)
Onuora, M “Nigeria backs ICC’s efforts to check impunity” Guardian Newspapers 4 July 2012 available online at http://www.ngrguardiannews.com/index.php?option=com_content&view=article&id=91249:nigeria-backs-iccs-efforts-to-check-impunity&catid=1:national&Itemid=559 (accessed 13 February 2013)
Osinuga, O. “Nigeria and the ICC: The Dawn of a new era?” 26 December 2011 available online at http://www.thenigerianvoice.com/nvnews/78455/1/nigeria-and-the-icc-the-dawn-of-a-new-era.html (accessed 14 February 2013)
Report of the Review Conference of the ICC, Kampala 31 May – 11 June 2010, Official Records, 109 available online at http://www.icc-cpi.int/iccdocs/asp_docs/ASP9/OR/RC-11-ENG.pdf (accessed 5 March 2013)
Schlein, L. “UN Human Rights Chief Condemns Boko Haram Attacks” 23rd June 2012 and available online at http://www.voanews.com/content/nigeria-un-human-rights/1246278.html (accessed 13 February 2013)
The Economist “Nigeria’s crisis: A threat to the entire country” 29 September 2012 available online at http://www.economist.com/node/21563751 (accessed 14 February 2013)
Adoke, M. “Speech during the Review Conference of the Rome Statute of the International Criminal Court” Kampala, Uganda 31 May – 11 June 2010
Ladan, M. “Issues in domestic implementation of the Rome Statute of the International Criminal Court in Nigeria” Paper presented at a Round -Table session with Parliamentarians on the Implementation of the Rome Statute in Nigeria organised by the Nigerian Coalition on the International Criminal Court (NCICC), 12 November 2002, National Assembly Complex, Abuja, Nigeria