Nigeria is expected to conduct a fourth phase of mass trials for Boko Haram suspects currently in military detention. A start date for these proceedings hasn’t yet been fixed.
The country’s mass trials of terrorism offences in 2017 and 2018 show a positive inclination to use the courts rather than just the military to deal with terrorism. Criminal justice responses based on the rule of law are key as they strengthen the legitimacy of the state and give a voice to victims.
But the trials exposed significant problems with Nigeria’s criminal justice system. Weak investigations, arbitrary arrests, unlawful detention and the absence of legal aid and evidence marred the cases. This is bad not just for counter-terrorism in the region and in Africa, but also for Nigeria’s ability to deliver justice for other offences generally.
Over the past decade, the violence caused by Boko Haram and its breakaway faction the Islamic State West Africa Province has put Nigeria in the spotlight. In July 2009, a major uprising led to violent clashes between the group and security forces, with mass arrests and detention of suspects.
Mass arrests began in 2009 and reached a peak in 2013. Many weren’t carried out according to criminal procedure or international human rights norms, presenting significant challenges for the criminal justice system. The arrests included people who weren’t members or affiliates of Boko Haram, but found themselves near military operations targeting the group. These included merchants and community members in areas that were allegedly controlled by Boko Haram.
In 2013, a state of emergency declared in Adamawa, Borno and Yobe – the three most affected states – resulted in curfews, with security forces conducting arrests and detaining suspects for prolonged periods.
A forthcoming Institute for Security Studies (ISS) report examines fair trial concerns in terrorism cases in Nigeria. Prosecutors, judicial officers and civil society organisations told the ISS that at least 5 000 cases against terror suspects were dealt with by the criminal justice system. Three phases of mass trials were conducted – the first in October 2017 with around 575 defendants, and the second and third in February and July 2018, all in Wawa Cantonment, Kainji, Niger State.
The ISS research identifies numerous problems. First, the sheer number of cases exposes weaknesses in technical capacity in areas such as case management. In some instances, suspects’ case files were either misplaced or non-existent. Security personnel – the military in some cases – who made arrests were difficult to trace due to redeployment. This raises the question of whether the military should be carrying out arrests in the context of a criminal proceeding.
A second problem was inadequate resources available to the legal defence, some of whom work for the Legal Aid Council of Nigeria. There were also only four judges assigned to adjudicate the first three phases of mass trials for over 5 000 individuals.
Third was the limited time given to conduct proper investigations, prosecutions and defences, and to thoroughly adjudicate the crimes. Thorough preparation prior to cases was unusual and the actual case proceedings were hurriedly conducted in just days. Court hearings took place in military camps with facilities inadequate for both officers of the court and suspects.
Much of the evidence examined during the trials was based on confessions. Weak interrogation of the cases constituted one of the major criticisms of the process. Trials should be conducted on a strong evidence base, going beyond confessional statements. Efforts by the state to plug these gaps in the criminal justice system have not been pursued with any urgency.
The right to a fair trial is fundamental, and is embedded in Nigeria’s constitution and international and regional human rights treaties. Fair trial guarantees are a constituent part of Pillar IV of the United Nations Global Counter-Terrorism Strategy that requires member states to ensure human rights and the rule of law. Governments are obliged to uphold the rights of terror offence suspects, victims and witnesses. Witness protection should also be provided.
For prosecutors, investigators and judges, sufficient time is needed for trials to ensure proper investigations, court proceedings and adjudication while also respecting suspects’ rights. Fair trial standards include having proficient interpreters so suspects can defend themselves in a language they understand. Juvenile offenders should be tried in Nigeria’s Children’s Courts so that justice is served regardless of age and in line with the country’s Child Rights Act, 2003.
Civil society organisations also play a constructive role in oversight of trials, but in Nigeria they lacked access in the first three phases, which meant they couldn’t monitor them adequately. These trials should also be held in public.
In numerous countries the military has become a near permanent actor in counter-terrorism. Special training is needed on the military’s role in criminal justice processes and to mainstream human rights into military operations. Designated military officers should collaborate with police to ensure effective arrests and criminal justice processes in terrorism cases, including the collection and use of evidence in court.
To this end, Nigerian authorities should revisit the recently adopted UN Guidelines on the role of the military in collecting evidence for trial from battlefield contexts. Judicial authorities should ensure that suspects aren’t detained beyond the legally stipulated period.
Legislative reform to address the challenges of investigating, prosecuting and adjudicating terrorism offences is also needed. The priority is to learn lessons from Nigeria’s previous terror trials before the fourth round begins so that mistakes aren’t repeated.
Allan Ngari and Akinola Olojo, Senior Researchers, Complex Threats in Africa Programme, ISS Pretoria