Committee on Enforced Disappearances
Concluding observations on the report submitted by Nigeria under article 29 (1) of the Convention *
1.The Committee on Enforced Disappearances considered the report submitted by Nigeria under article 29 (1) of the Convention at its 452nd meeting, held on 18 September 2023. At its 468th meeting, held on 28 September 2023, the Committee adopted the present concluding observations.
A.Introduction
2.Upon ratification of the Convention in 2009, Nigeria was required, under article 29 (1) of the Convention, to submit, by 23 January 2013, a report on the measures taken to give effect to its obligations under the Convention. After several reminders and in accordance with its rules of procedures, the Committee adopted, at its seventeenth session held in October 2019, a list of issues in the absence of a report. Upon receipt of the list of issues, the State party submitted its report in 2021 and the Committee therefore adopted a new list of issues at its twenty-second session (in 2022). The Committee invited the State party for a constructive dialogue at its twenty-fifth session. While acknowledging the efforts of the representatives of the Permanent Mission of Nigeria to attend the meeting, the Committee stresses that the State party missed an opportunity to present its report with a full delegation, to add important information and to provide the Committee with replies.
B.Positive aspects
3.The Committee commends the State party for having ratified or acceded to almost all the United Nations core human rights instruments and the optional protocols thereto, and to the Rome Statute of the International Criminal Court. The Committee also welcomes the standing invitation extended by the State party to all special procedures of the Human Rights Council to visit the country.
4.The Committee notes positively some of the legislative measures adopted by the State party, in particular:
(a)The Anti-Torture Act, of 2017;
(b)The Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, of 2015, which established the National Agency for the Prohibition of Trafficking in Persons;
(c)The Administration of Criminal Justice Act, of 2015;
(d)The Violence against Persons (Prohibition) Act, of 2015;
(e)The establishment in 2018 of the Special Investigation Panel, in charge of investigating serious human rights violations, including enforced disappearances.
C.Principal matters of concern and recommendations
5.The Committee considers that, at the time of the adoption of the present concluding observations, the legislation in force, its implementation and the practices of certain authorities were not in full compliance with the Convention. The Committee encourages the State party to implement its recommendations, made in a constructive spirit of cooperation, with a view to ensuring that the existing legal framework and its implementation by the authorities are fully consistent with the Convention.
1.General information
6.The Committee notes that no consultations took place with civil society organizations or other stakeholders in the preparation of the State party’s report.
7. The Committee recommends that the State party ensure the participation of civil society organizations and all relevant stakeholders in the whole cycle of reporting, from the preparation of its reports to the dissemination and implementation of the concluding observations.
Individual and inter-State communications
8.The Committee notes the information provided by the State party regarding the recognition of the competence of the Committee to examine individual and inter-State complaints under articles 31 and 32 of the Convention. However, the Committee regrets that this information does not correspond with the official information registered at the United Nations.
9. The Committee invites the State party to make the declarations to recognize the competence of the Committee to examine individual and inter-State communications, in compliance with the United Nations legal procedures (arts. 31 and 32).
National human rights institution
10.The Committee notes with satisfaction that the National Human Rights Commission has been awarded A status by the Global Alliance of National Human Rights Institutions. It also welcomes the fact that the training of the military, the police and personnel of other law enforcement agencies, as well as of civil society groups, civil servants and judicial personnel, on human rights standards is among the key priorities of the Commission, and that it has benefited over 5,000 State agents since 2015. The Committee regrets, however, not having received information about the other competences of the National Human Rights Commission, and the activities it carries out in relation to the Convention. In particular, it regrets the absence of information about the number of complaints of enforced disappearance received by the Commission, the actions taken in that regard, and the results thereof, including about any reparations awarded to victims and about the number of cases referred to the competent authorities for criminal prosecution. The Committee further regrets the absence of detailed data on the measures adopted to ensure that the Commission has the financial, technical and human resources necessary to carry out its work effectively throughout the territory of the State party.
11. The Committee recommends to the State party that it ensure that the National Human Rights Commission has the financial, technical and human resources necessary for it to adequately carry out its work throughout the national territory. It also recommends that the State party promote awareness of the Commission and its competences – particularly those related to enforced disappearance – among the general public, and national and local authorities, and make the information on related activities and their results visible and accessible.
Applicability of the Convention
12.The Committee welcomes the information provided by the State party that the Convention is directly applicable in the national jurisdiction, as it is part of the internal legal order. It also notes the information that domestic courts are expected to consider national legislation in the light of the treaties to which Nigeria is a party. The Committee welcomes the information in paragraph 25 of the State party’s report that any person who considers that they have been a victim of a violation of a provision of a treaty to which the State is a party can bring an action in relation to a breach of its provisions. However, the Committee regrets the lack of information as to the number of cases in which national courts have applied the Convention and about the measures taken to ensure that they have done so in full compliance with the rights and obligations enshrined in the Convention. Furthermore, the Committee is concerned about the lack of incorporation of the Convention in the national legislation (arts.1, 4 and 12).
13. The Committee calls upon the State party to ensure the uniform direct applicability of all the provisions of the Convention.
Non-derogability of the prohibition of enforced disappearance
14.The Committee notes that, according to the State party’s report, “no legislation or specific practice jeopardizes the effective application of the prohibition on enforced disappearance”. The Committee is, however, concerned that national law does not specifically provide for the non-derogability of the prohibition of enforced disappearance under any exceptional circumstances. In that connection, the Committee is concerned about allegations that measures taken in the context of the state of emergency declared in the north‑east region of the State party have prejudiced the effective implementation of the Convention, such as detainees being denied access to lawyers and relatives, and being put outside the protection of the law (art. 1).
15. The Committee recommends to the State party to expressly incorporate the absolute prohibition of enforced disappearance into national law, in accordance with article 1 (2) of the Convention, to ensure that measures taken in the fight against terrorism do not hinder the effective implementation of the Convention and to ensure that no exceptional circumstances may be invoked to justify enforced disappearance.
2.Definition and criminalization of enforced disappearance (arts. 1–7)
Statistical information and databases
16.The Committee regrets that the State party did not provide statistical information, disaggregated by sex, gender identity, sexual orientation, age, nationality, ethnic origin and religious affiliation of the victim, on the number of disappeared persons in the State party, specifying the date and place of disappearance; how many of those persons have been located; and the number of cases in which there may have been some form of State involvement within the meaning of the definition of enforced disappearance contained in article 2 of the Convention. The Committee also regrets not having received updated information on the progress of the work of the Interministerial Technical Working Group in charge of developing a database of disappeared persons in Nigeria, which was referred to by the State party during the universal periodic review examination in 2018 (arts. 1, 2, 3, 12 and 24).
17. The State party should, without delay, generate accurate and up-to-date statistical information on disappeared persons, disaggregated by sex, sexual orientation, gender identity, age, nationality, place of origin and racial or ethnic origin. This information should include the date of disappearance, specifically identify the cases allegedly committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, within the meaning of article 2 of the Convention, and include the number of disappeared persons who have been located, whether alive or deceased. In this connection, the Committee recommends that the State party establish a single nationwide database of disappeared persons, ensuring that it contains, at a minimum, all the information referred to in the present recommendation.
Enforced disappearance as a separate crime and appropriate penalties
18.The Committee is concerned that national legislation does not criminalize enforced disappearance as an autonomous offence, and that the provisions of the criminal and penal codes referred to by the State party as invocable to punish enforced disappearances fail to define enforced disappearance in full compliance with article 2 of the Convention. The Committee regrets the State party’s position that the existing norms are sufficient to prosecute cases of enforced disappearance, and reiterates that the reference to a range of existing offences and similar acts is not sufficient to encompass all the constituent elements and modalities of the offence of enforced disappearance as provided in the Convention, or to reflect the gravity and the specific nature of enforced disappearance (arts. 2 and 4).
19. The Committee recommends that the State party ensure that enforced disappearance is incorporated into national law as an autonomous offence in line with the definition contained in article 2 of the Convention.
Acts committed by non-State actors
20.The Committee notes the State party’s statement that “acts of enforced disappearance have been on the increase in Nigeria recently” particularly as a result of acts perpetrated by non-State actors. In that connection, the Committee is concerned about the confusion reflected by that statement, which does not distinguish between disappearances committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, and acts committed by non-State actors acting without the authorization, support or acquiescence of the State (arts. 2 and 3).
21. The Committee recommends that the State party ensure a clear understanding and use of the following concepts in line with its statement on non-State actors in the context of the Convention: (a) enforced disappearances that are acts committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State; (b) acts defined in article 2 of the Convention that are committed by non-State actors without the authorization, support or acquiescence of the State; and (c) enforced disappearance as a crime against humanity, including when committed by non-State actors. This is necessary in order to identify the scope of each of the categories and to clarify the different forms of obligations that the State party bears, and in order to elaborate and implement appropriate and efficient strategies to prevent and eradicate enforced disappearances.
22.The Committee regrets that no information has been provided about the efforts made, and the results thereof, to investigate the commission of the acts defined in article 2 of the Convention by persons or groups of persons acting without the authorization, support or acquiescence of the State; to bring those responsible to justice; to search for and locate the victims who remain disappeared; to encourage and facilitate the reporting of such disappearances; and to prevent those acts from occurring again in the future (art. 3).
23. The State party should increase its efforts to ensure that allegations of acts defined in article 2 of the Convention committed by persons or groups without the authorization, support or acquiescence of the State are immediately, thoroughly and impartially investigated and that the alleged perpetrators are brought to justice, and, if found guilty, are given sentences commensurate with the seriousness of their acts. The Committee also recommends that the State party take all measures necessary to assist the victims and to search for and locate persons disappeared as a result of the actions of these armed groups, and to prevent such acts.
24.The Committee notes the information provided by the State party on public hearings organized in 2018 for the adoption of a bill for an act to provide for the punishment of crimes against humanity, war crimes, genocide and related offences and to give effect to certain provisions of the Rome Statute of the International Criminal Court in Nigeria. However, the Committee regrets that the State party did not provide any information relating to the criminalization of enforced disappearance as a crime against humanity (art. 5).
25. The Committee recommends that the State party explicitly recognize enforced disappearance as a crime against humanity in its national legislation, in compliance with article 5 of the Convention.
Criminal responsibility of superiors and due obedience
26.The Committee notes that the invocation of superior orders to justify the commission of a criminal act is prohibited in national law. However, the Committee is concerned about the existence of exceptions to this principle, and about the lack of information on legislation to guarantee that no order or instruction from any public authority may be invoked to justify an offence of enforced disappearance, and to guarantee that persons who refuse to obey orders or instructions that prescribe, authorize or encourage enforced disappearance will not be punished (arts. 6 and 23).
27. The Committee recommends that the State party incorporate into national legislation the criminal responsibility of superiors, in accordance with article 6 (1) (b) of the Convention. It further recommends to the State party to ensure that no order or instruction from any public authority – civilian, military or any other – may be invoked to justify an offence of enforced disappearance, and that subordinates who refuse to obey an order to commit enforced disappearance will not be punished.
Appropriate penalties and aggravating or mitigating circumstances
28.The Committee observes with concern that, although national law does provide for mitigating and aggravating circumstances, these provisions are not applicable to acts of enforced disappearance (art. 7).
29. The Committee encourages the State party to ensure, when criminalizing enforced disappearance in national legislation, that the minimum penalties meet the requirements of article 7 of the Convention, duly reflecting its extreme seriousness, while excluding the death penalty. Furthermore, the Committee invites the State party to include in its criminal law mitigating and aggravating circumstances specifically applicable to enforced disappearance, ensuring that these circumstances will in no case lead to inappropriate punishment.
3.Judicial procedure and cooperation in criminal matters (arts. 8–15)
Continuous nature of the offence of enforced disappearance, and statute of limitations
30.The Committee welcomes the information provided by the State party that there is no statute of limitations with regard to the criminal prosecution and punishment of enforced disappearances. However, it regrets the absence of information on specific domestic law provisions regulating the statute of limitations for crimes of a continuous nature, such as enforced disappearance. It is further concerned that national legislation does not guarantee the right of victims of enforced disappearance to an effective remedy, given that a statute of limitations applies for damages which varies between 5 and 20 years and that for actions against public officials, the legislation provides for a shorter period of time (art. 8).
31. The Committee recommends that the State party ensure that, once criminalized, the offence of enforced disappearance is not subject to any statute of limitations; if it is, the Committee recommends that the State party ensure, in line with article 8 of the Convention, that:
(a) The term of limitation for criminal proceedings brought in respect of enforced disappearances is of long duration and is proportionate to the extreme seriousness of the offence;
(b) The statute of limitations commences from the moment when the offence ceases;
(c) The right of victims of enforced disappearance to an effective remedy is guaranteed during the term of limitation.
Prevention of acts that may hinder the progress of investigations
32.While taking note of the information provided by the State party regarding fair trial as a fundamental right guaranteed in the Constitution of Nigeria, the Committee is concerned about the lack of information on how this right is guaranteed in practice, particularly in view of allegations of political influence and corruption in the judiciary, and about the absence of representation in some criminal cases. The Committee further underlines its position that, as a matter of principle, military courts do not offer the guarantees of independence and impartiality required by the Convention for trying cases of enforced disappearance, and regrets the lack of clarification provided by the State party as to the role of military, customary or sharia courts to address enforced disappearance (arts. 11 and 12).
33. The Committee echoes the recommendation of the Human Rights Committee that the State party should strengthen the independence of the judiciary as well as of the authorities in charge of the investigation and prosecution of criminal allegations. In that connection, the Committee recalls its statement on enforced disappearances and military jurisdiction and recommends that the State party take the legislative measures necessary to exclude the investigation and prosecution of acts of enforced disappearance from the competence of the military courts in all cases.
34.The Committee welcomes the information provided by the State party according to which an investigation cannot be carried out by a member of the police force or a member of another prosecuting authority, and neither will a trial be conducted by a judge who is suspected of the offence in question. It further notes the requirement that police personnel, public prosecutors and judicial officers (judges and magistrates) recuse themselves in such cases. However, the Committee regrets the lack of information about the practical implementation of these guarantees (art. 12).
35. The Committee recommends that the State party ensure that all persons suspected of having committed an enforced disappearance are not in a position to influence the progress of an investigation. The State party should ensure, without prejudice to the presumption of innocence, that State officials suspected of involvement in the commission of an enforced disappearance are suspended from their duties from the outset, and for the duration of the related investigation.
Mutual legal assistance
36.The Committee takes note of the conditions set out in the national legislation as regards legal assistance or cooperation requests in the terms established by articles 14 and 15 of the Convention. Bearing in mind that enforced disappearance is not criminalized in the national legislation, the Committee is concerned that assistance requested would not be provided in cases of enforced disappearance, particularly where double incrimination is requested (arts. 14 and 15).
37. The Committee recommends that the State party systematically provide the necessary legal assistance, including by giving access to the evidence at its disposal to the authorities of other States parties that so request in connection with the investigation of alleged enforced disappearances. The Committee also recommends that the State party actively contribute to strengthening mutual assistance, with a view to facilitating the sharing of information and evidence and searching for and identifying disappeared persons, in particular disappeared migrants, in line with the Committee ’ s general comment No. 1 (2023) on enforced disappearances in the context of migration.
Mass graves
38.The Committee is concerned about allegations of the discovery of numerous mass graves in the national territory and about the lack of specific information on efforts to ensure protection, identification, forensic analysis, respectful treatment and return of the remains of disappeared persons (arts. 12 and 24).
39. The Committee urges the State party to take into consideration, in the development and implementation of a search strategy, the Guiding Principles for the Search for Disappeared Persons, and recommends that the State party ensure that each reported mass grave is protected and dealt with using the appropriate forensic methods. It also recommends that the State party ensure that the identification of disappeared persons is carried out effectively by a specialized institution that has the necessary specialized human and material resources.
4.Measures to prevent enforced disappearances (arts. 16–23)
Non-refoulement
40.The Committee welcomes the information that national legislation explicitly prohibits the extradition of individuals where there are substantial grounds to believe that they are at risk of being subjected to a denial of their human rights, including to enforced disappearance, by the requesting State. However, it regrets the lack of information as to the criteria and procedures applied to assess a person’s risk of being subjected to enforced disappearance in the country of destination before a decision is taken on extradition (arts. 13 and 16).
41. The Committee recommends that the State party:
(a) Expressly incorporate into its national law a prohibition on expelling, returning or surrendering a person where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance;
(b) Ensure that there are clear and specific criteria and procedures for assessing and verifying a person ’ s risk of being subjected to enforced disappearance in the country of destination before an expulsion, return, surrender or extradition is carried out, and that, if there is such a risk, the person concerned is not expelled, extradited, surrendered or returned.
Secret detention and fundamental legal safeguards
42.The Committee notes that section 35 of the Constitution of 1999 protects persons from secret detention. However, it is concerned by the lack of information about measures taken to guarantee that, from the outset of the deprivation of liberty, all persons deprived of liberty, regardless of the offence of which they are accused, have access to a lawyer and can inform their family or any other person of their choice of their deprivation of liberty. The Committee is concerned by allegations of secret detentions in military facilities and incommunicado detentions in the context of counter-terrorism. It further regrets that the information provided on existing registers of persons deprived of liberty does not include all the elements listed in article 17 (3) of the Convention and does not clarify how such information is made available when it refers to other places of deprivation of liberty such as military detention facilities, mental health institutions, or immigration detention facilities (art. 17).
43. The Committee recommends that the State party guarantee that no one is held in secret detention, including by ensuring that all persons deprived of their liberty, whatever the nature of the place of deprivation of liberty, are afforded all the fundamental safeguards set out in article 17 of the Convention. In this regard, the State party must:
(a) Ensure that persons deprived of their liberty are held solely in officially recognized and supervised places of deprivation of liberty at all stages of the proceedings;
(b) Guarantee, from the outset of the deprivation of liberty, that all persons, regardless of the offence with which they are charged, have effective access to a lawyer, and that their relatives, any other person of their choice and, in the case of a foreign national, the consular authorities of their country, are informed effectively of their deprivation of liberty and their place of detention;
(c) Guarantee that any person deprived of their liberty, including in police custody, and, in the case of a suspected act of enforced disappearance, since the person deprived of their liberty is not able to exercise this right, any person with a legitimate interest, will be entitled to take proceedings before a court in order for it to rule without delay on the lawfulness of the deprivation of liberty and to order the person ’ s release if the deprivation of liberty is not lawful;
(d) Enter all cases of deprivation of liberty, without exception, in up-to-date official registers and/or records that include, as a minimum, the information required under article 17 (3) of the Convention;
(e) Punish any failure to comply with the obligation to record all deprivations of liberty, the registration of inaccurate or incorrect information, any refusal to provide information on a deprivation of liberty, and the provision of inaccurate information.
44.The Committee is concerned by the legal restrictions in the national legislation to the right of persons with a legitimate interest, such as relatives of the person deprived of liberty, their representatives or their counsel, to have prompt and easy access to at least the information listed in article 18 (1) of the Convention (art. 18).
45. The State party should guarantee that any person with a legitimate interest, such as relatives of the person deprived of liberty, their representatives or their counsel, has prompt and easy access to all the information listed in article 18 (1) of the Convention. It should also ensure that the modalities of application of section 11 (1) and sections 12 and 14 to 19 of the Freedom of Information Act of 2011 guarantee that the right to information may be restricted in exceptional circumstances only, in conformity with article 20 of the Convention.
Training in human rights, particularly on the provisions of the Convention
46.The Committee regrets that according to the information provided by the State party, no specific and regular training on the Convention and on the offence of enforced disappearance has been provided to public officials and other persons, as required under article 23 (1) of the Convention (art. 23).
47. The State party should ensure that all law enforcement and security personnel, whether civil or military, medical personnel, public officials, and other persons who may be involved in the custody or treatment of persons deprived of liberty, including judges, prosecutors and other officials responsible for the administration of justice, receive specific and regular training on enforced disappearances and on the Convention, in accordance with article 23 (1) thereof.
5.Measures to protect and guarantee the rights of victims of enforced disappearance (art. 24)
Legal situation of disappeared persons whose fate has not been clarified
48.The Committee regrets the lack of information about investigations carried out in cases of enforced disappearance (arts. 12 and 24).
49. The State party should redouble its efforts to ensure that all persons who have been forcibly disappeared and whose fate is not yet known are searched for and located without delay and that, in the event of death, their remains are identified, respected and returned to their family. In this respect, it should also guarantee effective coordination and cooperation between all authorities responsible for searching for disappeared persons and identifying their remains in the event of death, and ensure that they have the necessary financial, technical and human resources to enable them to carry out their work promptly and effectively. The Committee recalls that, in the light of article 24 (6) of the Convention, the State party should ensure that investigations continue until the fate of the disappeared person has been clarified.
Definition of victim and the right to receive reparation and prompt, fair and adequate compensation
50.While taking note of the broad definition of victim in the national legislation, the Committee is concerned that no information has been provided about the measures taken to ensure the effective and uniform application of this definition in all parts of the territory of the State party. The Committee also regrets the lack of information about the existence of a system of full reparation ensuring all the forms of reparation for victims of enforced disappearance enumerated in article 24 (5) of the Convention (art. 24).
51. The Committee recommends that the State party: ( a) guarantee and facilitate access by any individual who has suffered harm as a direct result of an enforced disappearance to full reparation that includes all the forms provided for in article 24 (5) of the Convention and that takes into account the specific needs of the victims based on, inter alia, their sex, sexual orientation, gender identity, age, ethnic origin, social status and disability; and (b) allocate sufficient resources to uphold the right to full reparation for all victims of enforced disappearance.
6.Measures to protect children from enforced disappearance (art. 25)
Wrongful removal of children
52.The Committee is concerned by the absence of information on the existing or planned criminalization of the conduct described in article 25 (1) of the Convention, and on measures taken to locate children who have been victims of wrongful removal or enforced disappearance, including measures of cooperation with other States parties and to prosecute those responsible, as well as the results of those efforts. The Committee is also concerned at the absence of information on the national system of adoption or on any legal procedures to review and, where appropriate, annul any adoption, placement or guardianship that originated in an enforced disappearance (art. 25).
53. The Committee recommends that the State party:
(a) Review its criminal legislation with the aim of incorporating as specific offences the acts described in article 25 (1) of the Convention and establishing appropriate penalties that take into account the extreme seriousness of these acts;
(b) Establish specific procedures for returning children referred to in article 25 (1) (a) of the Convention to their families of origin;
(c) Establish specific procedures for reviewing and, where appropriate, annulling any adoption, placement or guardianship of children that originated in an enforced disappearance, and for re-establishing the true identity of the children concerned, taking into account the best interests of the child.
D.Fulfilment of the rights and obligations under the Convention, dissemination, and follow-up
54. The Committee wishes to recall the obligations undertaken by States when becoming parties to the Convention and, in this connection, urges the State party to ensure that all the measures it adopts, irrespective of their nature or the authority from which they emanate, are in full accordance with the Convention and other relevant international instruments.
55. The Committee also wishes to emphasize the particularly cruel effect of enforced disappearance on the human rights of women and children. Women who are subjected to enforced disappearance are particularly vulnerable to sexual and other forms of gender-based violence. Women who are relatives of a disappeared person are particularly likely to suffer serious social and economic disadvantages and to be subjected to violence, persecution and reprisal as a result of their efforts to locate their loved ones. Children who are victims of enforced disappearance, either because they themselves were subjected to disappearance or because they suffer the consequences of the disappearance of their relatives, are especially vulnerable to numerous human rights violations. In this context, the Committee places special emphasis on the need for the State party to ensure that gender issues and the specific needs of women and children are systematically taken into account in implementing the recommendations contained in the present concluding observations and all the rights and obligations set out in the Convention.
56. The State party is encouraged to disseminate widely the Convention, the written replies to the list of issues drawn up by the Committee and the present concluding observations, in order to raise awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations operating in the State party, and the general public. The Committee also encourages the State party to promote the participation of civil society in the process of implementing the recommendations contained in the present concluding observations.
57. Under article 29 (3) of the Convention, and with a view to strengthening its cooperation with the State party, the Committee requests the State party to submit, by no later than 29 September 2026, specific and updated information on the implementation of all its recommendations and any other new information on the fulfilment of the obligations contained in the Convention since the adoption of the present concluding observations. The Committee encourages the State party to involve civil society, in particular organizations of victims, in the process of preparing this information, which it intends to consider in 2027.