1.5 Analysis of challenges and opportunities in the field of international criminal justice in Nigeria

1.5.1 Application of positive complementarity in Nigeria

The principle of complementarity is the process through which the ICC complements the primary duties of states to investigate and prosecute international crimes.^[21] 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.^[22] 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.’^[23] The complementarity principle is unique to the ICC.^[24]

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.^[25] 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.^[26] 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.’^[27] 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.^[28] 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.’^[29]

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.’^[30] The OTP is also given the opportunity to seek for additional information from States regarding crimes that fall under the jurisdiction of the ICC.^[31] The OTP can defer an investigation at the request of the state to allow the state to conduct its own investigations and trials.^[32] 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.^[33]

These provisions in the Rome Statute recognise the role of the ICC in promoting positive complementarity.^[34]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.^[35]Furthermore, positive complementarity will ensure the development of national judicial systems in the prosecution of international crimes.

1.5.2 Domestic implementation of the Rome Statute in Nigeria

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.^[36] 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.^[37]

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.[38]

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.[39] 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.[40] 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.[41] 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.[42]

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.[43] 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.[44]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.[45] The ICC Bill provides that the prosecutor of the ICC may conduct investigations in Nigeria as provided in the Rome Statute.[46]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.[47]

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.[48] The bill further provides for the forfeiture of assets to the SVTF for those convicted of international crimes in Nigeria.[49] 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.[50] 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.[51] The bill grants legal personality to officials the ICC and domesticates the relevant provisions APIC.[52]

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.[53] 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.[54] 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.[55] Third, the bill protects the immunity clause of the Nigerian constitution.[56] 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 […].’’^[57] The provision is incompatible with the provision of Article 27 of the Rome Statute.^[58] 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.^[59]

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.’[60] 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.[61] 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.[62] It is expected that the government of Nigeria should galvanise the support needed for the National Assembly to pass the bill into law.

1.5.3 Insight and analysis on the ICC Bill

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.[63] 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”.[64] He further argues that preparation of background information for the Senate Leader could help to jumpstart the process.[65]

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.[66] 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.[67] 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.[68]

Another issue militating against the passage into law of the ICC Bill is government policy regarding domestic implementation of international treaties.[69] 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.[70]