Transitional justice and the insurgency in the North-East

Transitional justice, simply put, is a form of judicial and/or nonjudicial mechanism used to redress situations in which massive human rights abuses have occurred and the justice system might be unable to cope with the large number of people involved. The mechanism, which was developed in the later part of the last century, became necessary due to the escalation of largescale human rights abuses since World War 11 beginning with the Nuremberg trial of Nazi criminals. Many others have followed since then in countries such as South Africa, Rwanda and Chile. In recent months, the Centre for Democracy and Development and the Nigerian Institute of Advanced Legal Studies have been separately exploring the possibility of setting up a transitional justice scheme to address the alleged massive violations of human rights associated with the Boko Haram insurgency but indications from scoping studies done so far are that people are for retribution and punitive action against perpetrators of atrocities rather than forgiveness, reconciliation and healing.

The principles of transitional Justice are rooted in basic principles and instruments of human rights such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the African Chatter on Human and Peoples Rights all of which Nigeria is signatory to. Transitional justice framework takes the basic form of criminal prosecution associated with a truth commission approach, forgiveness of criminals under certain conditions, reparation to victims and institutional reforms.

The issue of transitional justice continues to arise in Nigeria because the country has had to confront a series of violent conflicts since gaining independence in 1960. The major conflicts have been; the Nigerian civil war, the Maitatsine and southern Kaduna conflicts, civil disturbances and interventions by security agencies, post election conflicts, Niger Delta militancy and the Boko Haram insurgency. The rapid spread of violent conflicts between pastoralists and sedentary farmers has spread rural banditry to virtually all nooks and corners of the country. The inability of successive administrations to address and adequately manage past conflicts has led to a high level of distrust in government, suspicion and rancour among citizens.

The major attempt at transitional justice in Nigeria was the Human Rights Violation Investigation Commission otherwise known as the Oputa Panel, and the Niger Delta Amnesty Programme. There has been Committees of inquiry and reconciliations with reports that were scarcely implemented mainly due to lack of political will. One example was the Judicial Commission that investigated the December 2015 clash between the Military and the Islamic Movement in Nigeria. The fact of the matter is that so far, Nigeria has not developed a comprehensive Transitional Justice framework for the country.

Since 2009, the Boko Haram insurgency has engaged in large-scale human rights atrocities against both security agencies and the civilian population. Amnesty International and Human Rights Watch among others have been documenting these atrocities. Indeed a report by the Office of the Prosecutor, International Criminal Court (ICC-OTP) had reaffirmed such allegations of reasonable suspicion that Boko Haram and the security forces may have both committed crimes against humanity and war crimes. It was in response to these allegations that the President demanded that the Military set up an Internal Board of Inquiry to investigate the matter. Subsequently, the Presidency established a Panel, which was inaugurated on Friday, August 11th, 2017 to review compliance of the Armed Forces with Human right obligations and rules of engagement especially in local conflicts and insurgency situation.

The Terms of Reference of the Panel are:

(a) To review extant rules of engagement applicable to the Armed Forces of Nigeria and the extent of compliance thereto;

(b) To investigate alleged acts of violation of international humanitarian and human right law under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Geneva Conventions Act, African Charter on Human and Peoples Rights (Ratification and Enforcements) Act and other relevant laws by the Armed Forces in local conflicts and insurgencies;

(c) To investigate matters of conduct and discipline in the Armed Forces in local conflicts and insurgencies;

(d) To recommend means of preventing violations of international humanitarian and human rights law in conflict situations; and

(e) To make further recommendations in line with these terms of reference as may be deemed necessary.

Stakeholders, affected persons, institutions and interested members of the public have been invited to submit memoranda that will assist the Panel in the discharge of its mandate. The Panel would commence its public sittings in Abuja on Monday 11th September and subsequently tour all the geo-political zones in the country.

To return to the theme of transitional justice, the scoping studies done by both the Centre for Democracy and Development and the Nigerian Institute of Advanced Legal Studies show that communities in the North East are hurting from what they have suffered, and in some areas still suffering, and are focused on seeking justice, which they define as investigating and punishing perpetrators. The majority of respondents in both studies were not ready to consider forgiveness and reconciliation. There is however a large number of Boko Haram insurgents that have been captured and “Operation Safe Corridor” is running a deradicalisation programme for hundreds of ex combatants with the aim of eventually returning these people back to their communities. The response of the communities studied is that they do not want them back. It is important that efforts are made to understand the justification for such an attitude. The pain of the atrocities suffered is so deep and recent that the notion of justice in the popular imagination is punishment for those that have harmed them.

It is difficult to talk about transitional justice without deep pedagogy that the spirit of mass punishment might result in a prolongation of the insurgency thereby leading to more rather than less suffering. At the same time, many communities would be right to pose the question of how the authorities would be sure that the perpetrators of crimes against the people have genuinely changed their beliefs. How do they know that they are just pretending and seeking ways to return to their communities and resume the insurgency later? Assurances and guarantees on these questions are necessary before seeking to return these people to their communities.

There is no universal model of transitional justice and different countries have been able to adopt different models that best fit their circumstances. The insurgency in the North East is perhaps different from the usual political conflicts of the past and therefore requires a careful approach and a lot of resources. Nonetheless, Nigeria can also adopt effective best practices from other countries. This includes a separate component dealing specifically with sexual violence, to take account of the stigma surrounding such violence and the resultant difficulties for survivors of coming forward to report sexual violations. Adopting a multiple transitional justice approach toward the North East reconciliation and rehabilitation process would require taking a number of issues into considerations.

The prosecution of all criminal actors that have committed crimes during the insurgency. One of the concerns of respondents expressed during the research is that almost no one has been successfully prosecuted for their roles in the insurgency so far. Secondly, Nigeria as a country has to consider the establishment of a long and short-term reparation package that would compensate the many victims of the insurgency; the wounded, the displaced and dependants of killed benefactors both from the civilian and the security forces. Moving forward, it is important to start the discussions by developing a transitional justice policy framework for the country.