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Why Nigeria needs a criminal tribunal and not amnesty for Boko Haram
24 June 2013

More than 700 Nigerians have died so far this year in over 80 attacks associated with Boko Haram, the Nigerian terrorist group that a recent United States report ranked as the second most deadly in the world after the Taliban in Afghanistan. Most of the deaths occurred in March and April (208 and 335 respectively), confirming the alarming dimension of Boko Haram’s atrocities in Nigeria.

In one attack in Baga, on 19 April 2013, Boko Haram militants confronted Nigerian security forces in a gun battle that left 260 people dead and nearly a thousand injured. This was the deadliest Boko Haram attack since 2009, when the group catapulted onto the global stage following violent riots that resulted in the death of over 800 people in northern Nigeria. Since then it is estimated that Boko Haram has killed nearly 4 000 people and injured several thousands more.

Although the term ‘terrorism’ is fairly new in the Nigerian political parlance, the use of terror or militancy has a much longer history that predates independence in 1960. In the post-independence era, the state, ethnicity, religion and criminality have been the primary sources of terror in Nigeria. Violent military coups and ruthless dictatorships punctuated Nigeria’s post-colonial history until 1999. It is believed that one of the causes of the 1967–70 civil war was the persistence of ethnic militant activities.

Religious militancy is perhaps the greatest and oldest threat to Nigeria’s national security. Despite the fact that the constitution is clear on the secular nature of government, Christians and Muslims, who make up about 97% of the country’s population, remain mired in conflict over control of territorial space and political dominance in Nigeria. Religious militancy gained renewed currency in 1980, when militants belonging to a group called Yan Tatsine, or ‘followers of Maitatsine’, a radical Muslim sect advocating for strict Islamic practices, sparked the worst religious riots in Kano. More than 4 000 people died in those riots, which subsequently spread like wildfire to other northern cities in the two decades that followed.

Historically, government responses to militancy have relied almost entirely on military strategies that have had short-term successes and long-term unintended consequences including fuelling a vicious cycle of violence. For example, the killing of Mohammed Marwa, the spiritual leader of the Maitatsine movement, during the 1980 Kano riots resulted in more intense violence and its subsequent spread to other cities. In the same vein, the intensification of the Boko Haram violence is believed to be a direct consequence of the extrajudicial execution of its leader, Utaz Mohammed Yusuf. In recent times, drastic military responses have triggered even more deadly and catastrophic terrorist attacks.

The previous use of military force to quell terrorism and militancy in Nigeria has proved futile as groups such as Boko Haram were able to emerge and continue to carry out large-scale terrorist attacks with impunity. What is now needed is a shift in approach to one that favours international criminal justice premised on the rule of law and the accountability of individuals for their crimes. A reliance on investigation, prosecution and punishment that is commensurate with the crime, as stipulated by national legislation, means the criminal justice approach can address the political, social and economic triggers of terrorism.

The challenge is that counter-terrorism is often mistakenly believed to entail a choice between military or criminal justice responses. On the contrary, an effective and sustainable counter-terrorism strategy is one that combines military and criminal justice responses, as each complements the other. While both rely on strong intelligence, investigation and prompt intervention, a criminal justice approach incorporates human rights and other values whose violations are often the source of a terrorism backlash.

The ‘carrot and stick’ approach of Nigeria’s President Goodluck Jonathan, which combines the use of heavy military force, support for victims of terrorist acts and political pardon for terrorist suspects, seems to have had a positive impact. In addition, the adoption of a terrorism proscription order in early June, declaring Boko Haram a terrorist group under the 2011 Nigerian Terrorism Prevention Act, which carries a prison sentence of not less than 20 years for those suspected of aiding the group or its accomplices, has introduced an important criminal justice dimension to the fight against Boko Haram.

The proposed amnesty for Boko Haram, which has divided Nigerians, may send the wrong signal that Nigeria is becoming a haven for impunity for those who perpetrate mass violence against innocent civilians. Amnesty is increasingly being used as a response to chronic militancy. While it has worked in a number of cases such as in Algeria and the Niger Delta insurgency in Nigeria, its application to Boko Haram poses some difficulties.

Amnesty worked in the Niger Delta uprising because of the confined nature of the conflict and because the key actors were known. Even so, it was a very costly exercise for the federal government to manage the 12 000 to 15 000 Niger Delta militants, who joined the amnesty, and the operation has been riddled with corruption. In Boko Haram’s case, membership of the group is not known and the militants are spread across almost all of the northern states. This means that anybody with a firearm can claim to be a member of Boko Haram. It could be expected that at least 100 000 people may claim to be Boko Haram members, which could cost Nigeria several billion dollars – five or six times more than the Niger Delta amnesty. Furthermore, while an amnesty could stop the violence, it is not a sustainable solution as it does not deal with the root causes of terrorism and militancy in Nigeria.

In order to address the fundamental causes of Boko Haram’s terrorist activities, it is important to create a special criminal tribunal. The trial and sentencing, in January 2013, of Edmund Ebiware, one of the four suspects in the 1 October 2010 twin bombings, to life imprisonment was a reassuring example of the effective use of criminal justice to combat terrorism. This must be encouraged and sustained, but no high-profile Boko Haram member is yet to be tried for the group’s actions.

The lack of progress in high-profile Boko Haram cases indicates the inability of the courts to deal with terrorism, largely due to their lack of both human and material resources to manage the backlog of cases. Terrorism is one of the newest criminal offences in Nigeria, and there are few legal precedents. A special tribunal, well staffed and equipped with the necessary human, financial and material resources, will help speed up the prosecution of terrorist suspects, and address the underlying causes that lead Nigerians to support Boko Haram. The tribunal will also help restore trust between prosecutors and police officers, some of whom have been accused of human rights abuses and the extrajudicial killing of terrorist suspects.

The creation of such a tribunal could contribute to the effective implementation of the recent terrorism proscription order 2013, and the Nigerian Terrorism Prevention Act (2011) as a whole. The tribunal could work with the security establishment to administer justice to suspected members of Boko Haram. Though a purely internal mechanism, it could have robust powers and the jurisdiction to prosecute any entity or person supporting Boko Haram, including foreign nationals. This criminal justice-based approach will help not only to consolidate current gains but also to eliminate the criticism that often undermines military responses. A special tribunal for Boko Haram would therefore go a long way to bridge the impunity gap that has sustained militancy since independence.

Martin Ewi, Senior Researcher, Transnational Threats and International Crime Division, ISS Pretoria

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