Nigeria

Obstacles to delivering fair trials in terrorism-related cases

Mass detention of suspects
Since the beginning of the conflict, thousands of persons suspected of being members of Boko Haram have been arrested. Many of them have been under pre-trial detention for several years. While a number have been processed through court proceedings, many more await trial. An unknown number of persons are reportedly being held in so-called rehabilitation camps for repentant and surrendered Boko Haram members under the control of the National Security Advisor.30 The pace of Nigeria’s investigative and prosecutorial activities has been criticised by civil society organisations and the ICC alike for being either wanting or too slow, compared to the number of allegations and the persons in detention.31 The recent surrender of thousands of Boko Haram fighters compounds this challenge still further.

Conduct of trials
Observers of the 2017–2018 Boko Haram trials remarked that, in general, they were confronted by numerous challenges including, but not limited to: a lack of interpreters; a lack of adequate legal defence given to suspects; a dearth of prosecutable evidence; the violation of the double jeopardy principle; and an over-reliance on confessional statements and the making of orders for rehabilitation.32 The Nigerian authorities have admitted to the enormous challenge facing them in trying Boko Haram suspects. In 2019, during an Assembly of States Parties of the ICC side-event at The Hague, the Director of Public Prosecutions of Nigeria cited the procedural difficulties which have beset his office, and listed the following challenges:

• Insufficient facilities, equipment and modern scientific tools to carry out investigations, thereby leading to poor investigations;
• Most investigations are grossly non-compliant with the relevant provisions of the Administration of Criminal Justice Act 2015 and other enabling laws governing criminal justice administration;
• Insufficiently experienced interpreters, given that most of the suspects cannot understand the language of the court;
• Inadequate time for defendants to meet and interact with their lawyers to prepare for their defence;
• The unavailability of witnesses, resulting in the adjournment of many cases and time wastage;
• An inadequate witness-protection programme, resulting in witnesses often not being forthcoming; 
• Inadequate logistical arrangements for the prosecutors, considering the danger and hazards involved in their assignments; and,
• The unavailability of exhibits, due to the nature of some of the cases and the mode of arrest of the defendants.33

In its 2018 Preliminary Examination Report, the ICC further observed that a majority of the suspects convicted by Nigerian authorities were charged with providing material and non-violent support to Boko Haram, and not for criminal offences similar in gravity to Rome Statute crimes.34 This therefore calls into question whether Nigeria has satisfied the principle of complementarity through this series of trials. Complementarity is a cornerstone principle for the ICC and posits that the Court only has jurisdiction if the country concerned is not investigating or prosecuting relevant international crimes or is unwilling or unable to do so within its own domestic justice system.

Triaging suspects

A major challenge dogging the investigation and prosecution process has been the securing of evidence and the identification of suitable cases to be brought to trial. In the last set of trials in 2018, the massive number of detainees, unavailability of proper data-collection methods, as well as incomplete case files hampered the process of properly triaging suspects.35 In 2016, a specialised unit, the Complex Casework Group (CCG)*36 was created within the Office of the Director of Public Prosecutions, with purpose-trained prosecutors to handle the terrorism cases assigned to them. The CCG has, however, faced numerous challenges in triaging cases and securing suitable evidence. As the Institute for Security Studies in its report, “Besieged but not Relenting, Ensuring Fair Trials for Nigeria’s Terrorism Suspects”, described: 

In 2013, mass arrests of individuals suspected of belonging to Boko Haram were conducted by the military in the Northern States, particularly Adamawa, Borno and Yobe. Thousands of people were detained in Giwa barracks in Maiduguri, Borno. A joint investigation team comprising immigration officials, intelligence agents and representatives of the Office of the Attorney General of the Federation were mandated by the Department of State Services (DSS), Chief of Defence Staff, to move to the northern states, review files and categorise the suspects in detention. On the ground there was no possibility of investigations as the circumstances of the arrests were unknown. It is reported that the Nigerian military was involved in the mass arrests and the identity of individual officers who conducted the arrests were not noted.

The joint investigation team then conducted enquiries with the suspects between August and December 2013 to ascertain the circumstances of their arrests. The CCG spent the better part of 2014 conducting evaluations of detainees. In the same year over 600 of these suspects broke away from detention at Maiduguri’s Giwa barracks. A decision was taken to move all suspects of terrorist offences to Wawa Cantonment, Kainji Detention Facilities. The Complex Case Working Group had the difficult task of identifying in the thousands of case files who of the 600 suspects had fled and how many were killed. An unprecedented set of circumstances and unavailability of proper data collection methods hampered efforts to triage the suspects as intended.37

Anticipated trials of Boko Haram suspects

A further round of trials against Boko Haram suspects has long been anticipated but has been delayed by internal challenges, security concerns and the onset of the COVID-19 pandemic. Given that the previous set of trials took place as far back as 2018 and that numerous individuals remain in detention awaiting trial, the pace of prosecutions needs to be addressed urgently. There are also high expectations that the authorities will have learnt from their experiences with the first series of trials, and that there will be a more concerted effort, not only to observe fair trial procedures, but also to charge more suspects in the next round of trials for offences which relate to conduct substantially similar to Rome statute crimes.38