While the use of suicide bombers is in itself an alarming phenomenon, Nigerian extremist group Boko Haram has added a dimension of shock and horror to its arsenal of terror tactics by using children to plant bombs and commit suicide attacks.
Can these children, who are forcibly conscripted into the group, be classified as perpetrators of acts of terrorism? Nigeria’s experiences in dealing with child terror suspects illustrate some of the many difficulties faced in dealing with this complex issue.
Since 2013, Boko Haram has actively targeted children – either by killing them, or using them in launching attacks. In April 2014, attackers raided a boarding school in Chibok, deep in north-eastern Nigeria, and kidnapped 276 schoolgirls, most of them between 16 and 18 years old. The group was reported to have kidnapped the girls with the intent of raping them or making them brides. One girl was rescued recently, but around 218 remain missing.
A report released by The United Nations Children’s Emergency Fund (UNICEF) in April detailed how Boko Haram is increasingly using children in gruesome attacks against their own families and others. Under these circumstances, the Nigerian criminal justice system has to contend with difficult legal, ethical and practical dilemmas in situations where children are accused of offences related to terrorism.
The enactment of the Terrorism Prevention Act (TPA) in 2011 set the legal framework for dealing with crimes associated with terrorism. However, the Nigerian legal system assigns criminal responsibility to people aged 17 and above, and the TPA applies only to that group.
Children who come into conflict with the law are provided for under the Children and Young Persons Act. This is an important separation to safeguard the rights of children. Where the TPA would provide for the death penalty in cases of persons convicted of a death relating to a terrorism offence, children are not subject to the same penalty.
Juvenile courts have the responsibility of dealing with cases involving children, but these courts operate at the lower Magistrate Court level, and do not have jurisdiction over terrorism cases. Such cases are dealt with by the Federal High Court.
This means that child terror suspects must await the administration of their cases through this court. While the law provides for free legal representation, child suspects cannot be guaranteed that their assigned lawyer will have had experience in cases dealing with children or related to terrorism.
Nigeria’s approach to dealing with children involved in terrorism cases is informed by international norms and standards, including the United Nations Convention on the Rights of the Child, to which Nigeria is a signatory. These all support Nigeria’s stance that the child’s best interests and reintegration into society are key guiding principles for the handling of young offenders before, during and after trial.
In reality, dealing with child terror suspects is difficult. One major practical challenge is ascertaining the personal and other details of alleged child offenders upon arrest.
Determining the age of an offender could, for example, be difficult. Courts have used sworn affidavits from parents and medical reports, but these can be subject to manipulation. Arresting agencies are now developing more reliable means, such as medical examinations, to determine suspects’ age.
Parents or guardians may be difficult to trace, or are sometimes even complicit in offences. In some cases, parents or guardians may not make themselves available to act on behalf of their child given the heinous nature of the charges. This obviously also complicates decisions relating to the child’s release on bail.
Another concern is that arresting agencies – such as the police, armed forces and others – usually do not have sufficient facilities to separate child and adult suspects. This poses specific risks to older children. While children under 15 years are held in separate cells from adult suspects, those aged 16 and 17 are placed with adult suspects. An additional practical challenge is that child suspects are often under the influence of hard drugs at the time of their arrest, and may require medical support before they are interviewed. Most investigation agencies lack skilled personnel in these circumstances.
Finally, a further challenge is the shortage of facilities and technical expertise to address the needs of children convicted of terrorist offences. Most staff working with suspects understand very little about child suspects.
The Children and Young Persons Act prohibits the sentencing of children to prison, and provides for convicted children to serve their sentences in remand homes or approved institutions. However, prisons may still be used to detain children, particularly in cases where there are space constraints in children’s institutions, or when their behaviour may be deemed to be unmanageable. Importantly, even in the specialised institutions intended to house convicted children, expertise on the needs of traumatised or radicalised children is very limited.
The increased use of children in deplorable acts has cast the scourge of terrorism in Nigeria in a far more sinister light. While these criminal justice problems are not unique to Nigeria, the country is called on to take specific measures to protect children accused of terrorism offences. This is especially urgent given the complex dynamics of terrorism in the country, and the number of children who may yet become victim to these circumstances.
Nigeria is to be commended for the legal measures that are currently in place to deal with child suspects. Equally, attempts to apply the due process of the law in these cases, rather than the use of force, is in the best interests of Nigeria’s children as well as all its citizens. However, it is clear that further measures must be taken to give effect to the rights and protection of children throughout the criminal justice system.
Written by Adv Clifford Osagie, former Chief Legal Officer, Department of State Services, Nigeria and Managing Partner, Ibekaku and Osagie Chambers; and Uyo Salifu, Researcher, Transnational Threats and International Crime Division, ISS Pretoria