by

Adejoke O. Adediran

Senior Research Fellow, NIALS

The prosecution of persons alleged to have committed terrorist acts in Nigeria is mandated by the Terrorism (Prevention and Prohibition) Act 2022 (TPA) among others.

In spite of the extant laws, the prosecution of members of the Boko Haram terrorist group who have committed terrorist acts has been criticized as ineffective. While the offenders are being prosecuted for the offence of terrorism, the Boko Haram terrorist group has indeed committed war crimes and crimes against humanity which are international crimes. An effective prosecution regime should therefore encompass international crimes.

International crimes are provided for in the Rome Statute of the International Criminal Court 1998 (Rome Statute). As Nigeria is a party to the Rome Statute, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) received communications from the period 10 November 2005 to 30 September 2012 on the armed conflict between the State forces and the Boko Haram terrorist group. The OTP in its 2012 Preliminary report subsequently declared that the non-international armed conflict between the State forces and the Boko Haram sect falls within the jurisdiction of the ICC. On 12 November 2015, on the basis of an updated subject-matter assessment, the OTP identified eight potential cases involving the commission of crimes against humanity and war crimes under Articles 7 and 8 of the Rome Statute.

The Rome Statute established the International Criminal Court (ICC) to prosecute and try individuals accused of committing international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. The Statute recognizes that States have the first responsibility and right to prosecute international crimes. The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out investigation and prosecute the perpetrators. Efforts were made by the Nigerian government to enable the prosecution of perpetrators of terrorist acts in Nigeria. The TPA was enacted in 2011 and amended in 2013 to facilitate the trial and punishment of terrorism offences. There was prosecution of members of the Boko Haram terrorist group but concerns were raised by lawyers and Civil Society Organisations (CSOs) over the effectiveness of the trials.

In conducting its preliminary examination to determine whether there is a reasonable basis to proceed with an investigation into the situation, the OTP identified the existence of several national cases against Boko Haram members. However, it found that the cases did not create potential conflict of jurisdiction with the ICC because they did not cover the same alleged conduct. While some cases covered same or similar conduct, they were against low level perpetrators. This is contrary to the OTP’s policy which focuses on those who appear to bear the greatest responsibility for the most serious crimes. The OTP also disclosed that there were no relevant proceedings in respect of the national security forces and there were no ascertained steps by the authorities to address the allegations of members of the national security forces. The OTP consequently concluded in its 2020 report that the criteria to proceed with an investigation are met with respect to subject-matter, admissibility, and the interests of justice.

It is noteworthy that African Union (AU) states members have not wholly cooperated with the ICC in the past. In 2009, the AU passed a resolution of non-cooperation with the ICC on the arrest and surrender of the President Omar Hassan Ahmad Al-Bashir, the then President of Sudan who was accused of genocide and other crimes. African States were of the opinion that they were being witch hunted and that the ICC was only after African leaders. Some African leaders who are state parties to the Rome Statute threatened to withdraw from the Court. When the ICC issued warrants of arrests for Al Bashir in 2009 and 2010 respectively, he failed to honour the warrant. He was later arrested in 2019 however, he visited Nigeria in 2013 during the time he was at large despite the arrest warrant issued by the ICC against him. Antecedents have also shown that States would rather prosecute international crimes within their jurisdiction themselves than to have an investigation opened by the ICC. This means that States must be able to effectively prosecute those crimes themselves.

Effective prosecution of Boko Haram members in Nigeria for international crimes requires the domestication of the Rome Statute. Nigeria ratified the Rome Statute on 27 September 2001 but is yet to domesticate it in accordance with section 12 of the 1999 Constitution. Domestication will however be challenging because of certain provisions in the 1999 Constitution. Section 308 of the Constitution grants immunity from criminal trial to the president, vice president, governors and deputy governors. This is contrary to the provisions of Article 27 of the Rome Statute which provides that there shall be no exemption of government officials such as head of states or governments from criminal responsibility under the Statute and there shall be no reduction of sentences on such grounds. It is therefore necessary to amend the provisions of Section 308 of the 1999 Constitution to provide for exclusion of the crimes under the Rome Statute.

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