Protecting Human Rights in Times of Insurgency and Civil Disorder

The Office of the Civil Military Affairs of the Nigerian Army, recently released the Report of the Special Board of Inquiry, inaugurated by the Chief of Army Staff, to investigate alleged human rights violations against Nigerian Army personnel, in the fight against insurgency in the North East, and internal security operations in the South East. The Report has generated much controversy and discussion within Nigeria, and among the Diplomatic Community. THISDAY Lawyer is publishing edited excerpts from the Report

Introduction

1. The Chief of Army Staff inaugurated a Special Board of Inquiry (The Board) to “undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by the Nigerian Army (NA) during its operations in the North East and South East and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability”

COMPOSITION

2. The Board is composed as follows:

Major- General AT Jibrin (rtd) President.

Barrister Olawale Fapohunda Member.

Colonel PC Izukanne (rtd) Member.

Barrister Tony Ojukwu Member.

Brigadier General A Dadan-Garba (rtd) Member.

Brigadier General OL Olayinka (N/9893) Member.

Colonel LB Mohammed (N/9415) Member.

Colonel UM Wambai (N/9890) Member.

Luitenant Colonel CM Akaliro (N/10645) Secretary.

FINDINGS ON ALLEGATIONS OF HUMAN RIGHTS VIOLATIONS IN MILITARY DETENTION CENTERS AND OTHER PLACES OF DETENTION

Findings

3. In all the detentions centres visited, including the Maximum Prisons, Boko Haram (BH) Detainees were not informed about their Miranda Rights, nor allowed access to legal representation. The right to counsel is so fundamental to basic fairness, that it should be recognised, even with respect to terrorism cases and enemy combatants.

4. The process of determining the legal status of BH detainees in all the military detention centres visited, appears to have been left to the NA alone. We note in particular, the difficulty encountered by the NA in transferring some detainees in Giwa Detention Facility to the Maiduguri Maximum Prisons, to ease the congestion in the Facility.

5. A common feature in all the detention centres visited, was the delay in the legal processing and trial of BH detainees. Efforts towards speedy trial, and the release of those profiled, including those cleared as having no case to answer, was made difficult by the lack of synergy between relevant agencies like the Office of the National Security Adviser (ONSA), Office of the Attorney-General of the Federation (AGF), Defence Headquarters (DHQ), Department of State Security Services (DSS) etc. We note that this lack of coordination led to a duplication of efforts, which further compounded the congestion problem in these detention facilities.

6. Concerning the processing of BH detainees, we find a serious

shortage of investigators across military detention centres. For example, at

the Giwa Barracks Detention Facility there was only one investigator allocated to a BH suspect. We note that, this limits the capability to extract maximum information from the suspects. Furthermore, this is contrary to global best practices of using a team of investigators, including those from other relevant agencies, to interrogate a suspect to determine culpability or otherwise.

7. There is a need for appropriate documentation of BH suspects, upon reception in all military detention centres. This must include the taking of profile pictures. This is necessary not only because of the importance of data and record keeping, but because many of the detainees were at the time of their arrest, malnourished and in a poor physical state. This could be misconstrued as evidence of deliberate starvation. We note however, that some of the detainees, in particular those in Wawa Cantonment, gave names which were different from the names on their case files. This made documentation and investigation difficult. We also note the need for better case file management between different security agencies.

8. We were concerned about the inmate to MP ratio, especially in Giwa Barracks Detention Facility, which holds high profile inmates. The small number of handlers, does not allow for relief of duties. This could result in fatigue or stress, with predictable effects on the appropriate handling of detainees.

9. We note the insufficient restraining kits such as handcuffs and leg chains. Furthermore, the Wawa Cantonment Facility lacks suitable vehicles for conveying the detainees to court.

Findings on Allegations of Human Rights Violations Against Military Personnel in IDPs Camps

Findings

10. We note that the President and Commander-in-Chief of the Armed Forces, had instructed the Inspector –General of Police (IGP) and the affected State Governors, to investigate allegations of sexual abuse and exploitation of women and girls in IDPs camps.

11. We note that pursuant to Mr. Presidents directive, the IGP had set up a special investigation team, to investigate all alleged cases of sexual abuse in internally displaced persons camps. The Board therefore, finds it necessary to differ to the on going presidential investigation on the allegations of sexual abuse, as it concerns the NA.

12. On the allegations of extrajudicial killings by NA personnel in IDPs camps, the Board finds no evidence in support of this allegation.

Findings on Allegations of Human Rights Violations Against the Nigerian Army during Military Operations in the South East

Findings

13. The Board finds that there were protests by IPOB members in Aba on 6th February, 2016 and in Onitsha, on 30 May, 2016.

14. The Board finds that the IPOB protests were not peaceful, and that the lives and properties of citizens in the protests areas, were threatened. In the words of one of the Governors that met with the Board “the IPOB may have set out to have a peaceful protests, however, criminals infiltrated their ranks, and turned these protests into violent ones”.

15. In particular, the Board found that IPOB members converged at Onitsha on 29 May, 2016, to mark the anniversary of the declaration of the Sovereign State of Biafra. That the protests turned violent and led to closure of shops, looting, burning of 8 Dangote cement trucks, burning of a police patrol van, and the killing of 2 policemen whose bodies were thrown into the River Niger by IPOB members.

16. The Board also found that the IPOB members occupied the Niger Bridge head, stopping free flow of traffic and threatened to blow it up. That it was the inability of the Nigeria Police to control the law and order situation, that led to the deployment of the military.

17. The Board found that there was a joint operation of the Police and the Nigerian Army, to contain the protesters on all the days when there were protests.

18. The Board notes the statement of the Governors and senior officials interviewed, that there were no reports of any killings by the military on any of the days of the protests, and they had no information of 13 persons allegedly buried in a shallow grave along the Aba – Port Harcourt expressway.

19. The Board notes the statement of the Gate man at the National High School Aba, who testified that he heard gun shots and stated that he saw one person fall to the ground. He could not recollect what happened to that person.

20. The Board received the pictures, names and contact details of the five (5) ring leaders of the protests who were arrested and handed over to Police on that day.

21. The Board interacted with the Anambra State Governor, Commissioner of Police, State Director of SSS and some residents. They testified that no one was killed during the incident at Onitsha Bridge head. However, the Police Report showed that 14 people were arrested on the day.

22. With respect to the alleged events on the night of 29th May, 2016 where Amnesty International (AI) alleged that soldiers and police stormed the compound of St. Edmunds Catholic Church in the Nkpor area of Onitsha, shooting inside the compound resulting in the death of at least one person, and injuring four persons. We find that the soldiers did not enter the compound of St Edmunds Catholic Church Nkpor as alleged by AI.

23. The allegation of indiscriminate shooting by NA personnel at parishioners leading to one death, could not be substantiated. The Parish Priest denied any knowledge of such incident.

24. We find that it is inconceivable, that the Catholic Church will collude with the NA to cover up such an alleged flagrant violation of the Church.

25. For the avoidance of doubt, we find that soldiers neither entered the compound of the church, nor the street in which the church was located. Rather, we find that the Police who were deployed along Nkpor – Umuoji Road to contain the protesters, were overwhelmed by irate IPOB members who burnt their patrol vehicle. This led to the deployment of the military on the same road.

Findings on Allegations of War Crimes of Murder, Enforced Disappearance and Torture Against Specific Military Personnel during Military Operations in the North East

26. The Board observed that in all AI reports on the Human Rights situation in Nigeria, specifically as it concerns Military operations in the North East and the South East, allegations of violations of human rights violations were made against units, formations and personnel of the Nigerian Army in general. However, in its Report, ‘Stars on their Soldiers, Blood on their Hands 2014’, specific mention was made against certain senior military officers, who AI believes should be investigated for the war crimes of murder, enforced disappearance and torture.

27. The Board notes that, irrespective of the fact that there has been no finding of human rights abuse against any serving or retired military officer, by any court of law or military board of Inquiry, at least two diplomatic missions have either revoked or denied their countries entry visas to a number of senior officers, who have held command responsibilities during the military operations in the North East.

Findings

The Board made the following findings on the 6 senior officers interviewed.

28. Major General John A. H. Ewansiha (rtd) was the Commander of Operation RESTORE ORDER and later Operation BOYONA, between January, 2012 and August, 2013.

29. AI’s main allegation against this officer, was that as GOC, he received regular reports about the arbitrary arrests and unlawful detention of thousands of people in inhumane conditions, the deaths in custody of large numbers of detainees, and extrajudicial executions in areas under his command.

30. The Board notes that several of the documents quoted in the AI Report, originated during his era as JTF Commander. The Board reviewed these documents, and found that they were routine situation reports that contained information mainly on NA troops and BHT casualties during encounters, detainee movements, arrests of high profile BHTs, and deaths due to illness of detainees.

31. In particular the Board also noted the repeated memos written by the senior officer to army headquarters, on the need to decongest the Giwa Barracks detention facility. This effort was also acknowledged by AI .

32. The Board notes reference to the doctrine of command responsibility, under which AI has called for the investigation of this senior officer. There are three conditions for command responsibility:

• The person to be held responsible, must be the superior of the person or persons committing the violation

• The superior must have known or had information which should have enabled him to conclude that a breach was being committed or was going to be committed and

• The superior did not take all feasible and reasonable measures within his powers to prevent the breach.

33. The Board finds that there is no evidence in any of the documents reviewed, that indicated information on arbitrary arrests and extra judicial executions of detainees.

34. The Board notes that the memos cited by AI, indicate that the senior officer had knowledge of the condition of Giwa barracks detention facility. These memos are a confirmation that the officer, took reasonable steps to respond to the congestion in the detention facility.

35. The Board is unable to substantiate any of the allegations against the senior officer, in view of the absence of concrete proof in all the documents and videos reviewed.

36. Major General O T Ethan (rtd) assumed command of 7 Div NA from 22 August, 2013 to 1 January, 2014 as the pioneer GOC. AI’s main allegation against this officer, was that during the period he served as GOC, AI documented arbitrary arrests and unlawful detention of thousands of people in inhumane conditions, the deaths in custody of large numbers of detainees, and extrajudicial executions by troops under his command.

37. The Board found that most of the documents referred to by AI, were mostly routine situation reports that originated prior to his assumption of command.

38. The Board is therefore, unable to apply the doctrine of command responsibility to his situation. Further, none of the documents or the videos obtained from AI and other sources, contained any evidence that directly linked the senior officer with any of the alleged offences.

39. In view of these, the Board is unable to substantiate the allegations against this retired senior officer.

40. Major General A Mohammed (N/7915) was the GOC 7 Div from 24 February, 2014 to 16 May, 2014. The Board notes AI’s allegation that it documented cases of arbitrary arrests and unlawful detention of thousands of people in inhumane conditions, the deaths in custody of large numbers of detainees, and extrajudicial executions by troops under his command.

41. AI also alleged that he was in charge of military operations, when the military allegedly executed more than 640 detainees who escaped from Giwa barracks after a Boko Haram attack on 14 March, 2014.

42. The Board notes that none of the 24 military documents quoted in the AI report on the alleged culpability of the officer, originated under his command.

43. All the documents were routine situation reports between 2012 and 2013. However, the officer took over command 7 Div in 2014.

44. Furthermore, the Board confirmed that the senior officer, was on recce for an offensive operation and thus, was not in command or in charge of military operations on the day BH attacked Giwa Barracks.

45. The Board therefore found no evidence linking the officer to the alleged killing of 640 BHT suspects, even under the doctrine of command responsibility. Furthermore, the documents and videos reviewed did not contain any evidence directly linking the officer to the allegation. Therefore, the board is unable to substantiate the allegations against the officer.

46. Major General AO Edokpayi (N/7865) was the Commander MNJTF based in Baga in 2013. AI alleged that he was commander of the Multinational Joint Task Force based in Baga from at least April, 2013 until December, 2013, where Nigerian soldiers were responsible for arbitrary arrests and unlawful detention, the extrajudicial executions of more than 185 people in April, 2013, and deaths in custody in Baga detention

47. The Board observed that, the allegation of extra judicial killings in Baga, was investigated by a team from the Defence Headquarters and also the Senate of the Federal Republic of Nigeria, in furtherance of its investigative powers.

48. The Board notes that the reports from these investigations concluded that the allegation of 185 extra judicial executions, was exaggerated and there was no documentary evidence to substantiate the allegations.

49. The Board reviewed all the videos received from AI and examined all the documents referenced in the report. It was observed that most of the documents that emanated from MNJTF during his tenure, contained information on NA troops and BHT casualties during encounters, movement of troops and logistics, and arrest of high profile BHT members.

50. The Board finds no document or audio-visual evidence, directly linking the officer to these allegations. As a result of this, the Board is unable to substantiate any of the allegations against the officer.

51. Brigadier General R O Bamigboye (rtd) was Commander 21 Brigade in Giwa Barracks and Land Component Commander from 22 February, 2012 to September, 2013. AI alleges that he was in charge of the barracks during the period when at least 5,000 detainees died in custody, and when torture and ill-treatment were used routinely.

52. The Board noted that most of the military documents used in the AI Report, originated during his tenure. However, it was confirmed that the officer was not directly responsible for the detainees, although he was the Cantonment Commander. The officer served directly under Major General JAH Ewansiha (rtd) who was the JTF Commander.

53. The Board is unable to separate this officer from the efforts by the JTF Commander, towards decongesting Giwa Barracks..

54. The Board further observed that in all the documents referenced in the AI report, and all videos reviewed, none contained any evidence to indict this officer. In view of this, the Board is unable to substantiate the allegations against this officer.

55. Major General L P Ngubane (Rtd)was Chief of Training and Operations (CTOP) in AHQ and later DHQ from 12 May, 2010 to 15 August, 2013. He was not mentioned specifically in any of the AI reports, but he voluntarily appeared before the Board to present his complaint.

56. He affirmed that he was nominated to attend the Senior Leadership Seminar in the USA in 2012. The keynote speaker at the event, held at the African Centre for Strategic Studies, Washington, criticised the NA on its poor handling of the war on terror in North East Nigeria.

57. He said he spoke out during the interactive session in defence of the NA, and insisted that the Nigerian Government was right to use the military to quell the insurgency. His submission was against the general perception of the organisers.

58. The senior officer said that he also led a fact finding team to Baga in April, 2013, following an allegation that the troops of Multi National Joint Task Force (MNJTF) killed 185 persons and burnt 3000 houses, and that the NA denied humanitarian agencies access to the city. The retired senior officer found this to be contrary to what he saw on ground, and refuted the allegation. This, according to him, seemed not to have gone down well with the United States Embassy officials.

59. The retired senior officer told the Board that, he had a meeting with the Deputy Assistant Secretary of State for Democracy, Human Rights and Labour of the USA State Department. The meeting was held on the 8 May, 2013, during which the US officials requested for a copy of the investigation report of the Baga incident, and the senior officer did not oblige them.

60. The senior officer informed the Board that his visa was suspended by the Embassy of the United States, because he defended the use of the military in fighting insurgency, while refuting the allegations of extra judicial killings and mass burials in Baga.

Summary of Findings

61. The Board finds that the current delay in the trials of Boko Harm detainees resulting in some cases in deaths in custody, is unacceptable and a denial of the rights to fair trial of the detainees.

62. The Board finds that the denial of access to legal representation or at least, visitation from legal practitioners including lawyers from the legal aid council, is a violation of human rights. Any attempt to justify this state of affairs, will trivialise the commitment of the NA to the respect of fundamental human rights.

63. The Board finds that the severely overcrowded cells and unsanitary conditions of some of the detention facilities visited, combined with the length of period during which the suspects have been detained, amounted to inhuman and degrading treatment. The deaths in the military detention facilities were mostly caused by sicknesses, due to overcrowding aggravated by poor ventilation, harsh weather, and poor sanitation.

64. The Board is concerned about the continued detention of large numbers of women and children, in Giwa Barracks Detention Facility. In particular, the Board notes that female detainees and children, have different mental, physical and emotional needs. The facility is unable to provide for these needs, or offer appropriate access to feminine hygiene products.

65. The Board is of the opinion that consideration should be given to releasing women and children, who prima facie cases have not been established, and whose presence are not required in the prosecution process, This would also reduce pressure on the medical and other resources of the facilities.

66. The uncoordinated approach to investigation, and the shortage of investigators especially in Giwa Barracks Detention Facility, leaves much to be desired. The Board is of the opinion that, the current composition of the JIC may not achieve the desired aim.

67. The Board notes AI reference to military documents, internal memo, video, photographs, satellite images as evidence of rights violations against military personnel. AHQ should consider the desirability of a forensic, legal and human rights audit of these documents and visuals.

68. The Board is of the opinion that, Op SAFE CORRIDOR could be resuscitated and modified, to provide opportunity for the insurgents to surrender.

69. The Board notes that the NA is currently involved in Internal Security Operations in all the 36 States of the Federation, including taking over ordinary police functions. This increasing visibility of the NA is directly responsible for allegations of rights violations. The AHQ should advice the Commander-in-Chief, on the need for fundamental police reforms, including developing the capacity of the Nigeria Police to respond effectively to law and order situations. This will enable the NA to focus on its core mandate.

70. The Board notes that, the SBOI is a creation of the AHQ. In the course of its consultations, there have been issues about the independence of the Board, and the capacity of the Board to thoroughly investigate all allegations of human rights violations against the Nigerian Military since 2011. In order to achieve closure of these allegations, the Board invites the AHQ to consider advicing the DHQ to engage the Presidency on the desirability of a Presidential Panel of Inquiry, to review all allegations of Human Rights Violations against the Nigerian Military.

Recommendations

The Board recommends that Army Headquarters should:

71. Convene and institutionalise a quarterly ‘High Level Meeting on Access to Justice for the Insurgents’, for the purpose of creating a platform for enhanced coordination, better collaboration and cooperation among Federal Ministry of Justice and security institutions, with a view to decongesting detention facilities and facilitating speedy trials

72. Reengage the DHQ on the desirability of appointing a Military Human Rights Adviser, for the purpose of advicing the AHQ on human rights matters, and developing the capacity of the NA Human Rights Desks to conduct human rights investigations and human rights training for military personnel.

73. Hand over surrendered BH suspects including women and children with no case to answer, to their various State Governments, through a well- structured programme of deradicalisation towards reintegration into the society.

74. Request DHQ to resuscitate and modify Op SAFE CORRIDOR to accommodate more BHTs who surrender willingly, and a channel for deradicalisation and reintegration of suspects with no case to answer.

75. Continue to support collaboration with ICRC, NHRC and other relevant human rights groups, to further entrench human rights culture in the NA.

76. Allow lawyers from the NHRC and Legal Aid Council access to the BH Detainees.

77. Ensure that reports of investigations by HQ NACMP on human rights violations, are made public periodically.

78. Direct HQ TC/HQ 7 Div to ensure that all BHT suspects in Giwa Barracks Detention Facility, are profiled and their bio-data captured before admission into the facility.

79. Draw the attention of the HAGF to the plight of 103 BHT suspects presently detained in the Kirikiri Maximum and Medium Security Prisons.

80. Expand and re-equip the Giwa Detention Centre Medical Facility

81. Encourage AI to cover NA’s operational activities, but to take appropriate steps to verify their reports before publication.

82. Increase the number of MP handlers in Giwa Barracks Detention Facility, procure suitable vehicles and more handcuffs and leg chains for the military detention facilities.

83. Direct the immediate installation of CCTV cameras and a monitoring room at the Giwa Barracks Detention Centre, and repair the damaged ones at Wawa Detention Facility.

84. Request the IGP and CG NSCDC to deploy more of their personnel to IDPs camps in Yobe and Adamawa States, to relieve soldiers for operational deployment.

85. Engage the Ministry of Foreign Affairs on the desirability of holding formal discussions with the Diplomatic Community in Nigeria, about concerns of profiling Nigerian Military Personnel.

86. Direct HQ NAMC to ensure paediatricians and gynaecologists are available at medical centres of military detention facilities that have women and children.

87. Document all IS operations on video and in photographs, and ensure that arrest of civilians is done in line with laid down procedures.

88. AHQ is encouraged to make the major findings of this SBOI report public, to put the records straight.

89. Advice DHQ to engage the Presidency on the desirability of a Presidential Panel of Inquiry, to investigate all cases of human rights violations against the Nigeria Army.