LEGAL PROTECTION OF DETAINEES: A STUDY IN NORTHERN NIGERIAN STATES
A thesis submitted in fulfilment of the requirement for the degree of Doctor of Philosophy in Law
Ahmad Ibrahim Kulliyah of Laws International Islamic University Malaysia
Most detainees are vulnerable to abuses, because of their situation of captivity, which detached them from the outside community, and placed them in a condition they cannot help themselves. The aim of domestic and international laws is the humane treatment and respect for the dignity of persons deprived of their liberty; their rights must be protected and upheld at all times. Human beings by virtue of their humanity, have the right to life, personal liberty and dignity to human person. Detention is the deprivation of one’s liberty by taking him into custody either for interrogation or as a punishment for crime. Protection of detainee’s rights has been an issue of global concern, and several instruments; Conventions and Resolutions are passed to that effect. Accordingly, Nigeria is a signatory to major international human rights Instruments protecting the rights of detainees; hence, it has an obligation to protect these rights by ensuring effective and independent investigations into cases of violation of rights; by punishing perpetrators of such violations to serve as a deterrent and forestalling further violation of detainees’ rights. Detainees and victims of violation of rights need to be informed of their rights and possible remedies in cases of violations under the law. However, abuse on the rights of detainees in Northern Nigeria has been on the increase due to the on-going operations by security agencies in fighting the Boko Haram insurgency in the region. This research examines the situation and plight of detainees in states affected by the insurgency, vis-à-vis the violations of rights that occurred. Several methodologies were used in carrying out this research. Doctrinal methodology was employed to analyse the position of the principles of law. Non-doctrinal methodology was also used to investigate the application of the laws that protect the rights of detainees and the challenges of implementing these laws. The findings of this research reveals that violation of rights of detainees are prevalent in states affected the insurgency and the emergency rule proclamation. It further reveals that the violators are never investigated or punished for their atrocities. The research suggested remedies under Nigerian laws, as well as effective enforcement of such remedies. Although, the remedies are available and adequate under the laws, the enforcement has been the major challenge faced by victims of human rights violations in Nigeria, despite the grant of orders by courts for such remedies. Independent and effective judiciary that can enforce its judgment is necessary to address cases of violation of detainees’ rights in Northern Nigeria.
ABSTRACT IN ARABIC
و ،يجرالخا عمتلمجا ينبو مهنيب لصف يذلاو ،يرسلأا مهعضو ببسب ،فنعلل ةضرعم ينلقتعلما رثكأ
مهسفنأ ةدعاسم نوعيطتسي لا ةلالحا هذه لثلم .
ةيللمحا ينناوقلا نم فدلها نإو ةلماعلما وه ةيلودلاو
ةديؤمو ،ةيممح مهقوقح نوكت نأ بيج و ؛مهتيرح نم ينمورلمحا صاخشلأا ةمارك ماترحاو ةيناسنلإا تاقولأا عيجم في .
ةماركلاو ةيصخشلا ةيرلحاو ،ةايلحا في قلحا مهيدل ،مهتيناسنإ مكبح رشبلاو
نجسلا لىإ هلقن نم ةيرلحا نم نامرلحا وه لاقتعلااو ةيمرج ىلع هباقع وأ هباوجتسلا امإ
هبكترا . تايصوتلا نم ديدعلا ريرتم تمو ،يلماعلا قلقلل ةيرثم ةلأسم ينلقتعلما قوقح ةياحم تناك دقلو
نأشلا اذه في تارارقو تايقافتلااو تايصوت ىلع ةعقولما لودلا نم اييرجين نإف ،كلذ ىلع ًاءانبو .
ةياملح ةيسيئرلا ةيلودلا ناسنلإا قوقح ينلقتعلما قوقح
. هذه ةياحم اهيلع بجاو هنإف ،لياتلابو
قوقلحا هذله كاهتنا تلااح في ةلقتسم ةلاعف تاقيقتحو تاءارجإب مايقلا للاخ نم قوقلحا .
ينلقتعلما قوقح كاهتنا نم ديزلما طابحإو عدار ةباثبم نوكتل تاكاهتنلاا هذه بيكترم ةبقاعم للاخ .
نا اياحضو نولقتعلما جاتيح مهقوقبح مهغلابإ لىإ قوقلحا كاهت
. تلااح في ةنكملما لوللحا نع ثحبلاو
نوناقلا بجوبم تاكاهتنلاا هذه .
اييرجين لاشم في ينلقتعلما قوقح ىلع ءادتعلاا ناك دقف ،كلذ عمو
ةحفاكم في ةينمأ ةزهجأ يديأ ىلع ةيرالجا تايلمعلا ببسب دايدزا في لا
مارح وكوب "
( Boko Haram )
ةقطنلما في .
ةضرعتلما تايلاولا في مهقزأمو ينلقتعلما عضو ثحبلا اذه لوانتيو
قوقلحا تاكاهتنا نم مهبيصأ ام كلاذك ،نيدرمتلما لبق نم اله .
ذيفنت في بيلاسأ ةدع تمدختساو
ثحبلا اذه .
ةيجهنم تمدختسا امك نوناقلا ئدابم نم فقولما ليلحتل ةيبهذلما ةيجهنلما فيظوت تمو
م يرغ هذه ذيفنت هجاوت تيلا تايدحتلاو ينلقتعلما قوقح يمتح تيلا ينناوقلا قيبطت قيقحتل اضيأ ةيبهذ
ينناوقلا . في ةدئاسلا ينلقتعلما قوقح كاهتنا دوجو رهظت ثحبلا اذه اهيلإ لصوت تيلا جئاتنلاو
مهتياملح ئراوطلا ةلاح نلاعإو ،درمتلا اذه نم ةررضتلما ةقطنلما .
ةجيتنلا فشكت امك ةماقإ مدع نع
درمتلاب ينمهتلما دض ةبوقعلا وأ ةيئانلجا ةقيقحتلا يأ .
بجوبم فاصتنلاا لئاسو لىإ ةساردلا تراشأو
فاصتنلاا اذله لاعفلا ذافنلإا كلاذكو ،ةييرجينلا ينناوقلا .
ةحاتلما فاصتنلاا لبس نم مغرلا ىلعو
تاكاهتنا اياحضل يسيئرلا يدحتلاو ،ينناوقل اقفو ةبسانلماو اذه ذافنا وه اييرجين في ناسنلإا قوقح
لوللحا هذه لثلم مكالمحا لبق نم رماوأ حنم مغر ،فاصتنلاا .
نكيم يذلا لاعفلاو لقتسلما ءاضقلا
اييرجين لاشم في ينلقتعلما قوقح كاهتنا تلااح ةلجاعلم يرورض همكح ضرف
The thesis of Babagana Karumi has been approved by the following:
Farid Sufian Shuaib Supervisor
Shahrul Mizan Co-Supervisor
Khairil Azmin Mokhtar Internal Examiner
Rusniah Ahmad External Examiner
Raheem Kolawole Salman External Examiner
Mohd Feham Md Ghalib Chairman
I hereby declare that this thesis is the result of my own study, except where otherwise stated. I also declare that it has not been previously or concurrently submitted as a whole for any other degrees at IIUM or other institutions.
Signature………. Date …...
INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA
DECLARATION OF COPYRIGHT AND AFFIRMATION OF FAIR USE OF UNPUBLISHED RESEARCH
LEGAL PROTECTION OF DETAINEES: A STUDY IN NORTHERN NIGERIAN STATES
I declare that the copyright holder of this dissertation are jointly owned by the student and IIUM
Copyright © 2017 Babagana Karumi and International Islamic University Malaysia. All rights reserved.
No part of this unpublished research may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission of the copyright holder except as provided below
1. Any material contained in or derived from this unpublished research may be used by others in their writing with due acknowledgement.
2. IIUM or its library will have the right to make and transmit copies (print or electronic) for institutional and academic purposes.
3. The IIUM library will have the right to make, store in a retrieved system and supply copies of this unpublished research if requested by other universities and research libraries.
By signing this form, I acknowledged that I have read and understand the IIUM Intellectual Property Right and Commercialization policy.
Affirmed by Babagana Karumi
This work is dedicated to my late father Goni Karumi may his soul rest in aljannatil firdaus.
All praises are due to Allah, the Beneficent the Merciful for giving me the opportunity and strength to write this thesis. May the peace and blessings of Allah be on His Noble Prophet Muhammad (PBUH), members of his household, companions and his followers till the day of resurrection.
My special and unending gratitude goes to my supervisor Prof. Dr. Farid Sufian Shuaib who has been providing me with useful guidance in writing this thesis despite his tight schedules. May Allah reward him abundantly. My gratitude goes to my co supervisor Dr. Shahrul Mizan for his contributions, may Allah reward him.
I am particularly indebted and grateful to my parents Late Goni Karumi (may Allah forgive his short comings and grant him Aljannatil firdaus), and my mother Hajja Kolo Umar for their support, encouragements and prayers, that led to the success of this research. May Allah reward them and grant them paradise. My gratitude goes to my lovely wife Aisha Ahmed and my lovely children Fatima I, Fatima II, Fatima III, Ahmad and Kaka Shehu for their forbearance, understanding, love and care through out the period of my study. May Allah bless and grant them success in this life and hereafter.
I am also grateful to my friends and brothers Hon. Kaka Shehu Lawan (Attorney General and commissioner for Justice, Borno State), Dr. Abdulrashid, Dr. Magaji, Dr.
Alkali, Dr. Kwagwang, Dr. Yusuf, Dr. Ibrahim Umar, Suleiman Santuraki, Barr. Baba Shehu, Barr.A. H. Goni, Dr. Bello Zaria and those whose names are not expressly mentioned for their support and encouragement toward the accomplishing this research. May Allah bless them all and grant them success in this life and hereafter.
TABLE OF CONTENTS
Abstract ... ii
Abstract in Arabic ... iii
Approval Page ... iv
Declaration ... v
Copyright Page ... vi
Dedication Page ... vii
Acknowledgements ... viii
List of International Instruments ... xii
List of Statutes ... xiii
List of Cases ... xiv
List of Abbreviation ... xvi
CHAPTER ONE: GENERAL INTRODUCTION ... 1
1.1 Background to the Research ... 1
1.2 Statement of the Problem ... 4
1.3 Hypothesis ... 6
1.4 Objectives of the Research ... 6
1.5 Scope and Limitation of the Study ... 7
1.6 Literature Review ... 9
1.7 Research Methodology ... 23
1.8 outline of Chapters ... 27
CHAPTER TWO: CONTEXTUAL PERSPECTIVE ON DETAINEE PROTECTION ... 30
2.1 Introduction ... 30
2.2 Meaning of Detainee ... 31
2.3 History of Detention ... 35
2.4 Philosophy behind Detainee Protection ... 38
2.4.1 African Philosophy for the Preservation of Dignity ... 43
2.5 Human Rights and Detainees ... 45
2.5.1 Concept of Human Rights ... 45
2.5.2 Development of Protection of Human Rights ... 53
2.6 Forms of Violations of Detainee’s Rights ... 60
2.6.1Torture ... 61
2.6.2 Extra-judicial and Arbitrary Execution ... 64
2.6.3 Arbitrary Detention ... 67
2.7 Conclusion ... 70
CHAPTER THREE: LEGAL FRAMEWORK FOR THE PROTECTION OF DETAINEES AND REMEDIES ... 72
3.1Introduction ... 72
3.2 Laws Protecting Detainees in Nigeria ... 73
3.2.1 Constitution of the Federal Republic of Nigeria ... 73
3.2.2 Administration of Criminal Justice Act ... 77
3.2.3 Criminal Procedure Act (CPA) and Criminal Procedure Code
(CPC) ... 82
3.2.4.Evidence Act ... 83
3.2.5 Police Act and Regulations ... 85
3.3 Administration of Criminal Justice Institutions in Nigeria ... 87
3.3.1 The Police... 89
3.3.2The Judiciary ... 91
3.3.3 Prisons ... 93
3.4 Remedies under Nigerian Laws for Violation of Detainees Rights ... 95
3.5 Safeguards on the Rights of Detainees under International and Regional Instruments ... 98
3.6 Remedies for Violation of Rights under International and Regional Instruments ... 107
3.7 Application of International and Regional Instruments in Nigeria ... 116
3.8 Conclusion ... 117
CHAPTER FOUR: SITUATION OF DETAINEES IN NORTHERN NIGERIA ... 119
4.1 Introduction ... 119
4.2 Conflict in Northern Nigeria ... 120
4.3Treatment of Detainees ... 126
4.3.1Treatment of Detainees in States Affected by Emergency Proclamation ... 129
4.3.2 Treatment of Detainees in States not affected by the Emergency Proclamation ... 136
4.4 Abuse of the Rights of Detainees, and Forms of Violations ... 139
4.4.1 Arbitrary Arrest and Detention ... 140
4.4.2 Enforced Disappearance... 145
4.4.3 Extra-Judicial Execution ... 148
4.4.4Torture ... 151
4.5 Conclusion ... 154
CHAPTER FIVE: THE ADEQUACY OF EXISTING REMEDIES FOR ENFORCEMENT OF DETAINEES RIGHTS IN NORTHERN NIGERIA ... 157
5.1 Introduction ... 157
5.2 Meaning of Remedy ... 157
5.3 Remedies Available for Violation of Rights of Detainees ... 159
5.3.1 Remedies for the Violation of Detainees Right ... 160
5.4 Non Judicial Remedies ... 161
5.4.1Procedure for seeking non judicial remedies ... 167
5.5 Judicial Remedies ... 169
5.5.1Habeas Corpus ... 171
5.5.2 Injunction ... 174
5.5.3Mandamus ... 175
5.5.4Damages ... 179
5.5.5Declaration ... 180
5.5.6Writ of Certiorari ... 181
5.5.7Order for Prohibition ... 183
5.6 Procedure for the Enforcement of Judicial Remedies ... 187
5.6.1 Applications for Human Rights Enforcement ... 189
5.7 Enforcement of Judicial Remedy in Northern Nigeria ... 191
5.8Conclusion ... 194
CHAPTER SIX: RIGHT OF DETAINEES: ISLAMIC LAW PERSPECTIVE ... 196
6.1 Introduction ... 196
6.2 Concept of Human Rights in Islam ... 197
6.3 Individual Dignity ... 201
6.4 Individual Human Rights in Islam ... 203
6.4.1. Right to Life ... 203
6.4.2 Right to the Protection of Honour ... 205
6.4.3 Right of Equality ... 208
6.4.4 Right to Privacy ... 211
6.5 Detention in Islam ... 212
6.6 Right of Detainees ... 213
6.6.1 Right against Torture ... 214
6.6.2 Right to Fair Trial ... 215
6.6.3 Right to Safety of life ... 217
6.7 Influence of Islamic Law on Human Right ... 218
6.8 Conclusion ... 220
CHAPTER SEVEN: CONCLUSION ... 222
7.1 Findings and Conclusion ... 222
7.2 Recommendations ... 227
7.3 Suggestion for Further Research ... 230
BIBLIOGRAPHY ... 231
APPENDIX I: LIST OF INTERVIEWEES ... 247
APPENDIX II:CRIMINAL JUSTICE PROCESS IN NIGERIA AND DETAINEE RIGHTS ... 249
APPENDIX III: MAP OF NIGERIA ... 250
LIST OF INTERNATIONAL INSTRUMENTS
African Charter on Human and People’s Rights, (ACHPR), entered into force October, 1986.
Basic Principles for the Treatment of All Persons under Any Form of Detention 1988 Basic Principles for the Treatment of Prisoners 1990
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Adopted by General Assembly Resolution 43/173 of 9 December 1988.
Charter of the United Nations, 1945.
Code of Conduct for Law Enforcement Officials, Adopted by General Assembly Resolution 34/169 of 17 December, 1979.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984,
Geneva Convention, 1949.
Guidelines on Conditions of Police Custody and Pre-Trial Detention in Africa (2014).
International Convention for the Protection of All Persons from Enforced Disappearance.
International Covenant on Civil and Political Rights (ICCPR), entered into force March, 1976.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
Statute of the International Criminal Court, adopted on 17 July, 1998, and entered into force on 1 July, 2002.
Standard Minimum Rules for the Treatment of Prisoners, 1977 Statutes of the Realm 6-7, 1810.
UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990.
UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, recommended by Economic and Social Council resolution 1989/65 of 24 May 1989.
Body of Principles, (United Nations Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N.
GAOR 76th plen. mtg., December, 9, 1988.
United Nation, UN Principles on the Effective Prevention and Investigation of Extra- Legal, Arbitrary and Summary Executions, 1989
Universal Declaration of Human Rights, 1948.
LIST OF STATUTES
Administration of Criminal Justice Act, 2015.
Constitution of the Federal Republic of Nigeria, 1999, (as amended).
Criminal Code, CAP C38, Laws of the Federation of Nigeria, 2004.
Criminal Procedure Act Criminal Procedure Code Evidence Act.
Fundamental Rights (Enforcement Procedure) Rules 2009.
Geneva Convention Act, CAP G3, Laws of the Federation of Nigeria, 2004.
National Human Rights Commission Act, Cap N46, Laws of the Federation of Nigeria, 2004.
Nigeria Police Force Code of Conduct and Professional Standards for Officers of the Nigeria Police Force, 2013.
Nigeria’s Constitution and the Nigeria Police Force Order 237 (Rules for guidance in use of firearms by the police).
Penal Code (Northern States) Federal Provisions Act, CAP P3 Laws of the Federation of Nigeria, 2004.
Police Act, Cap P19, Laws of the Federation of Nigeria, 2004
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.
Public Complaint Commission Act, Cap P 37 LFN, 2004.
Terrorism (Prevention) Act, 2011, Act No. 10 (Entered into Force on 3rd Day of June, 2011)
LIST OF CASES
Abdulhamid v. Akar (2006) 13 NWLR (Pt 996) 127.
Abiola v. Federal Republic of Nigeria (1995) 1 NWLR (Pt 370) 155.
Adio v. A.G. Oyo State (1990) 7 NWLR (Pt. 163) 448 C.A.
Amachree v. Nigerian Army (2003) 3 NWLR (Pt 807) 256.
Anisminic v. Foreign Compensation Co. (1969) 2 A.C 147.
Anyanwu v. State (2012) 16 NWLR (Pt 1326) 242 C.A Asikhai v. I.G.P. (NLHC) 149 at 151.
Baldwin and Francis Ltd v. Patents Appeal Tribunal (1959) AC 663 at 697.
Bornu Radio Television Corporation v. Basil Egbunomu (1991) 2 NWLR [Pt 171] 81.
C. McLawrence v. Jamaica ,Communication No. 702/1996.
Chief Enwuwa & Ors v. Minister of Local Government, Ex Parte Araoye, 4 FSC 154.
Chief Olusegun Oni v. Attorney-General of the Federation (2012) 3 NMLR.
Eghrevba v. A.I.G. (NLHC) 237.
Excelsior Insurance Company Ltd Vs. The Registrar of Insurance (1981-82) Benue State of Nigeria Law Report (BNSLR) 119.
Exparte Augustine Ifeanyi Chukwu Mordi (NLHC) 26.
Exparte Corke (1954) 2 All E.R. 440.
F. S. Eguware v. H. E. Governor of Bendel State (1991) 3 NWLR (Pt 178) at 209.
Fawehinmi v. IGP (2002) 98 LRCN 1165.
FRN v. Ifegwu (2003) FWLR (Pt 167) 703.
Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550.
Gridin v. Russian Federation, Communication No. 770/1997.
Gwaram v. S.P. Kano (NLHC) 17.
Igago v. The State (1999) 14 NWLR (Pt 637) 1 SC.
Ogudu v. State (2001) LPELR-860 (SC).
Okoye v. Santilli (1990) 3 SCNJ, 80.
Igbinovia v. State (1981) 2 SC.
Akpan v. State (2001) 15 NWLR (Pt 737) 745 SC.
Ikemefuna v. Nweke (1990) 5 NWLR (Pt 150) 255.
Jim-Jaja v. Commissioner of Police Rivers State & Ors (2013) 6 NWLR (Pt 1350) 225.
Lawrence S. U. Azuh v. Union Bank of Nigeria Plc, LER (2014) SC/71/ 2004 Lawson v. Lawson (NLHC)109.
Mr. Tai Wairiki Rameka et al. v. New Zealand, Communication No. 1090/2002, Ocha Peterson Ulegede v.. Hon. Commissioner for Agriculture Benue State (1966) 8 NWLR (Pt 467) 437.
Oloyede v. G.O.C 2nd Division N.A (NLHC) 275.
Peterside v. IMB (Nig) Ltd (1993) 2 NWLR (Pt 278) 81 CA.
R V Baker (1762) 3 Burr. 1265.
R v. Electricity Commission Exparte London Electricity Joint Committee (1924) 1 K.
R v. Wilbledon Justice Exparte Derwent (1953) 1 ALL E. R 390.
Raymond v. Honey, (1982) 1 All E.R. 757 at 759.
Re: Willliam Oswald Featherstone (1953) 37 Cr. App. R 146.
Regina v. Campell (1959)1 WLR 646.
Rex v. Hanley Revising Barrister (1912) 3 K.B. 518 at 531-2.
Sharpinto v. Fulham Guardians (1904) A. C. 449.
Shugaba Darman v. Minister of Internal Affairs & Ors (1981) 2 NCLR 459.
The Registered Trustees of National Association of Community Health Practitioners of Nigeria & Others V. Medical and Health Workers Union of Nigeria (2008) 2 NWLR (Pt 1075), 575.
Torres Ramírez v. Uruguay, Communications Nos. R.1/4.
Torres v. Finland, Communication No. 291/1988.
Tukur Gwaram v. S.P. Kano, Nigerian Law of Habeas Corpus (NLHC) 17 at 18, Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt 117) 517.
Uzoukwu & Ors v. Ezeonu II (1991) 6 NWLR (PT. 200) 708 at 761.
LIST OF ABBREVIATION
ACHPR African Charter on Human and Peoples’ Rights AIG Assistant Inspector General
APT Association for the Prevention of Torture
CEDAW Convention on the Elimination of All Forms of Discrimination Against Women
CEJTIL Centre for Justice and International Law CIA Crime Investigation Agency
CID Criminal Investigation Division CPA Criminal Procedure Act
CPC Criminal Procedure Code
EFCC Economic and Financial Crimes Commission FCT Federal Capital Territory
GA General Assembly
GOC General Officer Commanding HRC Human Rights Committee ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice
ICJ International Court of Justice
ICRC International Committee of the Red Cross IDP Internally Displaced Person
IG Inspector General
IHL International Humanitarian Law IHL International Humanitarian Law IHRL International Human Rights Law IPO Investigating Police Officer JIT Joint Investigation Team
JTF Joint Task Force
LFN Laws of the Federation of Nigeria
NAFDAC National Agency for Food and Drug Administration and Control NBA Nigerian Bar Association
NDLEA National Drug Law Enforcement Agency NGO Non Governmental Organisation
NHRC National Human Rights Commission NOPRIN Network on Police Reform in Nigeria NPF Nigeria Police Force
PBUH Peace Be Upon Him
PCC Public Complaint Commission SSS Secret Security Service
UDHR Universal Declaration of Human Rights
UK United Kingdom
UN United Nations
UNTS United Nations Treaty Series USA United States of America
1.1 BACKGROUND TO THE RESEARCH
Persons deprived of their liberty are entitled to be protected while in detention. They should be treated with respect and dignity, and not to be subjected to torture inhuman and degrading treatment.1 Both national and international laws have prohibited torture in all circumstances, including during detention.2 Accordingly, persons in detention including captives and prisoners of war should be treated with dignity and humanely.
However detainees in various detention centres are faced with abusive, inhuman, degrading and dangerous conditions of captivity.3 Those arrested and detained should not be subjected to torture and other inhuman and degrading treatments.4 Nevertheless, detainees are vulnerable to certain violations such as torture and other inhuman treatments, despite the fact that domestic, and international laws have made provisions for the protection of detainees. For that reason governments are under obligations to provide safe and humane places for those deprived of their liberty.5
The constitution of Nigeria prohibits torture and other inhuman and degrading treatments at all times, despite these prohibition, suspects in custody are subjected to torture as a punishment or as a means of extracting evidence by the prosecution.6 Northern Nigeria is faced with Boko Haram insurgency, and as such there are suspects
1 International Covenant on Civil and Political Right, 1966, (adopted 16 December 1966, entered into force on 23 March, 1976) 14668 UNTS 999 (ICCPR), Art 10.
2 ICCPR, Art 7.
3 Bernadette Rainey, Elizabeth Wicks, and Clare Ovey, Jacobs, White and Ovey: The European Convention on Human Rights (Oxford University Press, 2014), 213.
4 Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949, (adopted 12 August 1949, entered into force 21 October 1950) 972 UNTS 75 (Geneva Convention), Art 3.
5 Rainey, Wicks, and Ovey, Jacobs, White and Ovey, 213.
6 Amnesty International, "Welcome to Hell Fire’ Torture and Other Ill Treatment in Nigeria”
(London,United Kingdom, 2014), 6.
of the insurgency that are arrested and detained for their suspected roles. Thus, with the Proclamation of the state of emergency during the Boko Haram conflict in 2013, the number of those detained have drastically increased due to the military operations against the insurgents in the northern part of Nigeria. A lot of detainees were subjected to torture and other ill treatments. As explained in Amnesty International Report,7 about 10,000 people have been detained since the inception of the crises, and they have been held incommunicado, poor condition of detention and many others disappeared after arrest.8 A lot of detainees could not be accounted for, as they were missing through enforced disappearances which are grave violations of human rights.
Therefore, detentions that were not sanctioned by law ease other violations including torture and extrajudicial execution of those held in detention.
The Constitution of Nigeria prohibits torture and enjoins humane treatment of all including detainees, thus, section 34(1) of the Constitution provides that no person shall be subject to torture or to inhuman or degrading treatment.9 Similarly, enforced disappearance is prohibited under several international conventions, particularly, the International Convention for the Protection of all Persons from Enforced Disappearances, which was ratified by Nigeria in 2009,10 the Convention mandates states to investigate and punish those that are found to be involved in cases of enforced disappearances. So also the African Charter on Human and People’s Rights has made provisions for due process to be observed concerning arrest and detention of persons.11 Nigeria is a signatory to major international treaties that protects the rights
9 Constitution of the Federal Republic of Nigeria, 1999, S. 34 (1) (Hereinafter reffered to as the
10 Amnesty International, 'Welcome to Hell Fire’ Torture and Other Ill Treatment in Nigeria, 6.
11 African Charter on Human and People’s Rights, (adopted 27 June 1981, entered into force 21 October 1986) 26363 UNTS 1520 (ACHPR), Art 6.
of persons deprived of their liberty, and these rights have to be protected and their dignity must be upheld at all times. Hence, the idea behind detainee protection is their humane treatment, and not to be subjected to degrading treatment.12
The major impact of Boko Haram insurgency is experienced in Northern Nigeria since 2009. These led to mass arrest and detention of suspected members of the sect. The suspects are kept in detention centres that are poor in facilities. Thus, they lack basic food, medical care and other necessities of life as human beings. Also, while in detention, detainees were tortured and prevented from getting medical care, as they are incarcerated for long without access to adequate medical facilities. As a result of which, many have died in custody.13 Serious allegations of torture, inhuman and degrading treatments against those having custody of detainees are made.
Although, there are international and domestic safeguards on the dignity of human person at all times. However, detainees are kept in custody for long period without been charged to court. They were denied access to their families and lawyers, which rights are provided for under the Nigerian constitution, African Charter on Human and People’s Rights and other International Human Rights Laws. Nigeria is a party to most of the instruments guaranteeing the rights of detainees, but to a large extent, the obligations are not observed by the security agents in their conduct towards the detainees in custody. There are allegations of extra judicial executions, and enforced disappearance of individuals arrested by the security forces. These allegations of violations against the security operatives were not investigated and no step was taken in order to bring the perpetrators to justice.
12 Marcus Ayodeji Araromi, “Prisoners’ Rights under the Nigerian Law: Legal Pathways to Progressive Realization and Protection,” Journal of Sustainable Development Law and Policy (The) Vol. 6, no. 1 (2015): 169–98, 170.
13 Amnesty International, Killing at Will, Extra Judicial Executions and Other Unlawful Killings by the Police in Nigeria, (Amnesty International Publications, London, 2009), 12.
Nevertheless, it is a matter of great concern, that the condition and treatment of detainees in Northern Nigeria is appalling, this is due to the on-going military operations in some parts of northern Nigeria. In the same way, people were detained in military detention centres without access to family, lawyers or even human right monitors. This is an obvious violation of detainee’s rights and a flout of rule of law.
Even though some states were under the emergency rule for some time, this could not in any way justify torture or ill treatment, as the right not to be tortured cannot be derogated.14 Besides every individual is entitled to right to liberty which is cardinal in the rights guaranteed world over.
Hence the need to protect persons from unending detention from the authorities has to be addressed more especially during conflict situations, and civilians who are not parties to conflict should not be arrested and detained arbitrarily merely on suspicion of terrorism. Domestic and International laws have provided safeguards for the protection of detainees.
1.2 STATEMENT OF THE PROBLEM
There has been suspected cases of long detention of suspects without trial, access to family members and lawyers. Detainees are arrested and detained in military detention centres without been charged to court. Likewise, there have been alleged cases of torture, enforced disappearance and extra judicial execution of detainees by the security forces. The security forces operating in conflict areas of northern Nigeria have arrested people en masse and detained them under very bad conditions and without access to medical and other basic necessities. In the first six months of 2013 alone, in one of the states of northern Nigeria more than 950 died in detention and it
14 ICCPR, Art 4 (2).
was equally reported that on weekly basis about 150 persons were brought to mortuary in specialist hospital, Maiduguri, Borno State.15 Equally there were also allegations by some former detainees that, while in custody, people died in Giwa and Sector Alfa (military detention centres in Borno and Yobe States respectively) for starvation, suffocation and injuries associated with congestions in the cells.16 Similarly some were beaten and injured, and consequently died for lack of medical treatment.
Detainees were extra judicially executed, and in some occasions taken out from their cells and they never return.17
Consequently suspects in detention suffer torture and ill-treatments in Nigeria, they are used as if it is an essential part of how police and other security agencies operate in investigating cases.18 There are also cases of suspects who were tortured to death in detention, and subsequently become victims of enforced disappearance. On the contrary, the authorities will inform families of the victims that they were either transferred to another station or released on bail, with no document to confirm. The information given by the authorities are mostly unchallenged and where complains are made, they were rarely investigated. Meanwhile, in cases where investigations are ordered they do not comply with required standard of independence and fairness.
Also, cases of prolonged detention without trial has been a serious allegation against security operatives in northern Nigeria.19
15 Amnesty International, "Welcome to Hell Fire’ Torture and Other Ill Treatment in Nigeria”, 20.
16 Amnesty International, “Nigeria: Death in Custody of Hundreds of Boko Haram Suspects must be Investigated, Press Release”, http://www.amnesty.org.uk/press-releases/nigeria-deaths-custody- hundreds-boko-haram-suspects-must-investigated, (accessed 7 December, 2014).
18 Amnesty International, “Killing at Will, Extra Judicial Executions and Other Unlawful Killings by the Police in Nigeria” (Amnesty International Publications, London, 2009), 18.
19 However, there are several recommedations from different commitees on the release and prosecution of suspects but none has been implemented. For instance, the Joint Investigation Team (JIT) set up by the military high command in Nigeria, to look into the situation of detainees held in military custody on the suspicion of terrorism (Boko Haram). Part of the recommendation of the Committee was release, prosecution and further investiagation of suspects. Nevertheless, these recommendations were never
Therefore, the need to address the problems associated with the detainee’s legal rights inspire this research, with a view to proper practical remedies on protection of the rights of persons deprived of their liberty.
This research is on the following hypothesis;
1. The provisions for the protection of the rights of detainees in northern Nigeria are adequately provided for in domestic laws and international instruments.
2. The non-observance of the safeguards and principles under domestic laws and international instruments led to the violation of detainees rights in Northern states of Nigeria.
3. Lack of effective sanction against violations of the rights of detainees has led to the continuous abuse of their rights in Northern Nigeria.
4. The implementation of the protection and safeguard mechanisms under domestic laws and international instruments may reduce the violation of detainees’ rights in detention centres.
1.4 OBJECTIVES OF THE RESEARCH The objectives of this research are to,
1. Analyse the provisions of domestic laws that provides safeguard for the right of detainees.
implemented in whole (particularly, prosection), Amnesty International, Executive Summary, “Stars on Their Shoulders. Blood on Their Hands; War Crimes Committed by the Nigerian Military”
https://www.amnesty.at/de/view/files/download/showDownload/?tool=12&feld=download&sprach_co nnect=310, (accessed 10 August, 2016).
2. Examine the alleged violations of domestic laws and international instruments protecting detainee rights in Northern Nigerian States.
3. Analyse the effects of the failure of Nigerian government to investigate allegations of the violation of the rights of detainees in Northern Nigerian States.
4. Examine the remedies available to detainees for the violation of their rights in detention under domestic laws and international instruments.
5. Suggest the best ways on how to protect detainees in custody and to prevent further violation of their rights.
1.5 SCOPE AND LIMITATION OF THE STUDY
The research is limited to examining the rights of detainees (from arrest, while in custody, during interrogation and trial) in Northern states of Nigeria with a view to looking at the protections guaranteed under domestic laws and international instruments. The research intends to cover the period of six (6) years (2009 to 2015) from the inception of the conflict in some parts of northern states of Nigeria. The territorial and geographical scope of the research will cover the northern states of Nigeria. Northern states of Nigeria comprise of three geo-political regions, namely;
North East, North Central and North West, which broadly comprises of 19 states.20 The research examines the situation of detainees in the Northern Nigeria states;
comparism of states affected by insurgency and emergency rule proclamation, with states not much affected by insurgency and emergency rule proclamation is made in terms of protection and violation of detainees rights. Borno, Yobe and Adamawa states being the most affected by the insurgency and emergency rule proclamation,
20 See Appendix III, Map of Nigeria and its Geopolitical Zones.
which has large number of detainees that are vulnerable to abuses, are considered alongside the States in northern Nigeria that are not affected by the insurgency. In these states, the detainees’ condition of detention was compared side by side. Other northern states are rarely mentioned since they are not much affected by the conflict as having less number of detainees.
However, it is the limitation of this research that due to the current security challenges been faced in the country, some of the victims of violations are not willing to give an account of how they were treated by the security official for the fear of been arrested. Another limitation of this research is that some parts of the northern states are not accessible because they are under the control of the insurgents (Boko Haram) as they have taken over the towns and declared them as Islamic caliphate.
Nevertheless, the inability to directly access some detention centres and relevant documents from the security agents are also one of the limitations of the research.
Thus, the security situation and the sensitivity of some document do not allow the researcher to have access.
The researcher in the alternative focused on available sources; such as detainees that have moved to a safer place from the conflict areas are interviewed.
Also documents that cannot be accessed directly from the security agents, other sources are relied upon to get such information, such as newspaper reports, Amnesty International reports, Human Rights Watch reports, and periodic prison reports by National Human Rights Commission (NHRC) and other NGOs that are participating in humanitarian activities in the Northern states of Nigeria.