Boko Haram violence devastated north-east Nigeria and neighbouring countries in the Lake Chad Basin with thousands of suspects arrested by Nigeria’s military from 2009 to 2013 and detained without charge until a series of flawed mass trials four years later.
Only four judges were assigned to trials of over 5 000 suspects and the trials lasted five days or less – too short a time for prosecutors to present a case or lawyers to offer a defence according to ISS senior researcher Allan Ngari, author of new research into terror trials in Nigeria, Mali and Niger.
Hearings were in military camps with poor facilities for court officials and suspects. They were closed to the public and attended by a select group of civil society and media. Proceedings were rushed, legal aid was limited and cases were based on confessions rather than evidence. Case files were misplaced and witness protection was lacking are among his many findings.
“In a struggle against ideology and indiscriminate terror, the state needs to occupy the moral high ground,” Ngari said. “The brutality of Boko Haram is more reason to ensure procedural arrests and fair trials in a functioning criminal justice system.’
A military response may be justified against violent extremists like Boko Haram, but force should be complemented with a human rights and criminal justice approach, Ngari said. “Military operations without due legal process are counter-productive.”
Any criminal justice system would be overwhelmed by thousands of terrorism cases, but the Nigerian government is obliged to respect the rule of law and human rights. The country is a party to most of the 19 international treaties dealing with terrorism. These legal instruments operate alongside international human rights, humanitarian, criminal and refugee law.
The UN Global Counter-Terrorism Strategy reaffirms respect for human rights and rule of law as the fundamental basis for dealing with terrorism and the Nigerian constitution provides for the right to a fair hearing.
Its Administration of Criminal Justice Act promotes speedy delivery of justice and protection of the rights and interests of suspects, defendants and victims. The Nigerian Bill of Rights obliges government to ensure the principles of a fair trial are guaranteed to terror suspects, including a public hearing by a competent, independent and impartial court established by law.
A challenge is the frontline role of the military. It can seize suspects and evidence on the battlefield. Under Nigerian law the military doesn’t have powers of arrest for a criminal trial. “Nigeria needs legislative reform to ensure soldiers have legal authority to arrest suspects ahead of a criminal trial,” Ngari said.