Unconditional Amnesty for Boko Haram Violates African Human Rights Law

Author: Oluwatosin Senami Adegun
Master’s student, LLM Human Rights and Democratisation in Africa, Centre for Human Rights, University of Pretoria.

Boko Haram has attacked the north-east of Nigeria for 15 years killing over 350 000 persons, abducted about 276 Chibok girls, perpetuated rape, sexual slavery and other forms of sexual violence,  forced marriage, recruitment of child soldiers and disproportionate attacks on civilians which constitute violations of human rights and international humanitarian law as affirmed by the Amnesty International Report of 2015.

Despite these gross violations and the victims’ yearning for justice, the Federal Government of Nigeria (Nigeria) granted unconditional amnesty to some members of the terrorist group through its ‘de-radicalisation, rehabilitation and reintegration’ programme  without due consideration given to victims whose views and concerns were never considered.  

No doubt, amnesty is one of transitional justice (TJ) measures to achieve peace in conflict or post-conflict situations. However, in view of the fact that amnesty absolves perpetrators of crimes and therefore violates international law including the International Covenant on Civil and Political Rights which its Article 2(3) obligates States to provide remedy for human rights violations by investigating and prosecuting  human rights violations including core international crimes like crimes against humanity, amnesty should be a measure of last resort and only considered when other TJ measures like acknowledgement, restorative measure and criminal measure have failed. In exceptional cases however, conditional amnesty may be adopted while unconditional amnesty should be discouraged, as unconditional amnesty constitutes violation of varied rights of the victims including right to remedy.  

In Zimbabwe Human Rights NGO Forum v Zimbabwe the African Commission on Human and Peoples’ Rights (Commission) held that provisions of Zimbabwe’s General Amnesty for Politically Motivated Crimes of 2000 which absolves perpetrators of violence from prosecution are contrary to Articles 1 and 7(1) of the African Charter on Human and Peoples’ Rights (African Charter) as they violate victims’ right to remedy. The African Court on Human and Peoples’ Rights (African Court) in Ajavon v Benin also held that the Benin’s amnesty law which shielded perpetrators of electoral violence is a violation of the victims’ rights to life and dignity, and ordered repeal of the law.

These decisions affirm that unconditional amnesty is contrary to the African Charter. The Commission being the monitoring body of the African Charter with duty to protect and promote the human rights guaranteed in the African Charter has a role to play in ensuring that any TJ measure(s) that Nigeria adopts in the context of the Boko Haram insurgency protects the rights of victims, and that impunity is not perpetuated in the name of amnesty. The Commission can therefore on its own initiative fulfil its role in this regard when considering Nigeria’s periodic report, through fact-finding mission, and the constitution of special mechanisms like Working Group on TJ as identified in the Commission’s Study on Transitional Justice of 2018.

Thus, when considering Nigeria’s report submitted pursuant to Article 62 of the African Charter at any of its subsequent session(s), the unconditional amnesty granted to Boko Haram should form part of the issues to be considered, as this will enable the Commission to appreciate the issues based on which the Commission can issue recommendations that will ensure victims’ rights are protected especially their right to participate in any TJ measure(s) adopted. The Commission should reiterate its position on the incompatibility of unconditional amnesty with the African Charter and urge Nigeria to reconsider its position in that regard.  

Additionally, the Commission should consider conducting a fact-finding mission to Nigeria to meet with victims as well as perpetrators absolved under the unconditional amnesty and the relevant government departments or agencies to fully appreciate the facts, and to issue recommendations on appropriate TJ measure(s) most suitable in Nigeria’s context. Though fact-finding mission is subject to the permission of the country subject to investigation, this can be achieved through diplomacy and involvement of relevant officials of the Nigeria government in the process, and where necessary, with the intervention and or collaboration of other AU organs such as the AU Commission, Peace and Security Council and Pan African Parliament among others.

Although part of the Commission’s recommendations in its 2018 report is to constitute a Working Group on TJ, it is important that the Commission ensures this working group is established urgently to ensure TJ measures adopted across the continent comply with human rights standards.

Consequently, to ensure accountability, transparency and participation of the victims in TJ processes, the Commission needs to utilise all available measure(s) to ensure that Nigeria respects and protects human rights of victims, and that victims get the justice they deserve. This is important as conflicts perpetuate when victims are denied justice.

About the Author:

Oluwatosin Senami Adegun is a Nigerian legal practitioner and the Director of ISH-61 Human Rights & Social Justice Initiative through which she litigates human rights cases at the national, sub-regional and regional levels. She is currently a student in the Master’s programme in Human Rights and Democratisation in Africa at the Centre for Human Rights, University of Pretoria.