Pretoria, South Africa – Boko Haram’s violence has devastated north-east Nigeria and neighbouring countries in the Lake Chad Basin. Thousands of suspects were arrested by Nigeria’s military from 2009 to 2013 and then detained without charge until a series of flawed mass trials in 2017 and 2018.

Only four judges were assigned to trials of more than 5 000 suspects, and the trials lasted five days or less – too little time for prosecutors to present a case or lawyers to offer a defence.

The hearings took place in military camps with poor facilities for court officials and suspects. They were closed to the public and attended only by a select group of civil society and media. Proceedings were rushed, legal aid was limited, and cases were based on confessions rather than evidence. Case files were misplaced and witness protection was lacking.

‘In a struggle against ideology and indiscriminate terror, the state needs to occupy the moral high ground,’ says ISS Senior Researcher Allan Ngari, the author of new research into terror trials in Nigeria, Mali and Niger. ‘The brutality of Boko Haram is all the more reason to ensure procedural arrests and fair trials in a functioning criminal justice system.’

A military response may be justified against violent extremists like Boko Haram, but force should be complemented with a human rights and criminal justice approach, Ngari says. ‘Military operations without due legal process are counterproductive.’

Any criminal justice system would be overwhelmed by thousands of terrorism cases, but the Nigerian government is still obliged to respect the rule of law and human rights. The country is a party to most of the 19 international treaties dealing with terrorism, and these legal instruments operate alongside international human rights, humanitarian, criminal and refugee law.

The UN Global Counter-Terrorism Strategy reaffirms respect for human rights and rule of law as the fundamental basis for dealing with terrorism, and the Nigerian constitution provides for the right to a fair hearing.

Its Administration of Criminal Justice Act promotes the speedy delivery of justice, and protection of the rights and interests of suspects, defendants and victims. The Nigerian Bill of Rights obliges the government to ensure the principles of a fair trial are guaranteed to terror suspects, including a public hearing by a competent, independent and impartial court established by law.

One of the challenges is the frontline role of the military. It can seize suspects and evidence on the battlefield, but under Nigerian law the military doesn’t have powers of arrest for the purpose of a criminal trial. ‘Nigeria needs legislative reform to ensure that soldiers have the legal authority to arrest suspects ahead of a criminal trial,’ Ngari says.

For more information and media interviews, contact:

Allan Ngari, ISS: angari@issafrica.org; +27 72 258 2897