Nigeria: The People vs. The Federal Attorney-General

As a condition for its election to the United Nations Human Rights Council in May 2006, Nigeria pledged “its determination and commitment to continue to promote and protect human rights at home by strengthening and actively supporting the work of the National Human Rights Commission.”

On Monday 19 June, 2006, the first day of the inaugural Session of the newly constituted United Nations Human Rights council, Nigeria’s Federal Attorney-General and Justice Minister, Bayo Ojo SAN, through a letter signed by the Director of Personnel in the Ministry, Mr. A.S. Durojaiye, directed the “re-deployment” back to the Ministry of Mr. Bukhari Bello, Executive Secretary of the Nigerian National Human Rights Commission (NCHR). The Minister issued no public reasons for this decision. It subsequently emerged that in a private meeting with Mr. Bello 48 hours before the “re-deployment”, the Minister had told Mr. Bello that the government was unhappy with the tone and vigour of his criticism of government’s poor human rights record.

These events crystallised the severe deterioration in Nigeria’s human rights situation, which accelerated with the onset of the failed attempt to prolong the tenure of the government of President Olusegun Obasanjo.

The decision to “re-deploy” Mr. Bello was vigorously denounced both within and outside Nigeria as egregious interference with the independence of the National Human Rights Commission. The Special Representative of the United Nations Secretary General on Human Rights Defenders, Hina Jilani, and the Special Rapporteur of the African Commission on Human and Peoples’ Rights on Human Rights Defenders, Reine Alapini-Ginsou, jointly condemned Mr. Bello’s removal as “reprisal for his critical work in the defence of human rights.”

The Justice Minister and federal Attorney-General does not have the power in law to sack the Executive Secretary or interfere in the work of the NCHR. Faced with unanimous domestic and international condemnation of his decision, the Minister compounded his abuse of power by resorting to smears and intimidation. Two weeks after the letter “re-deploying” Mr. Bello, the Minister announced that he would investigate hitherto undisclosed and still unsubstantiated allegations of mis-conduct against him but admitted that he had chosen not to bring these allegations to Mr. Bello’s attention. Without alleging any crimes against him, the Minister wrote to direct the Inspector-General of Police to arrest Mr. Bello if he showed up on the premises of the Commission. In response to this directive, the Inspector-General deployed 14 Police officers to the Commission. Simultaneously, the Minister’s Press Secretary visited senior journalists and editors in Lagos to lobby for publication of the Ministerial smears against Mr. Bello, asking them to “go easy” on the Minister.

This report chronicles how, in the matter of the NCHR, Mr. Bayo Ojo, SAN, as Nigeria’s Federal Attorney-General and Justice Minister has committed abuse of power, usurped Presidential powers, compromised the credibility and effectiveness of the Commission, mis-led Nigeria into violating the United Nations (Paris) Principles on the independence of National Human Rights Institutions, and done incalculable damage to the largely successful efforts of the administration of President Olusegun Obasanjo to redeem Nigeria’s international reputation. It concludes that the Minister has lowered the authority and esteem of the high office of Minister and Attorney-General. As a result, he has become a liability to the federal government and, in the circumstance, his position has clearly become untenable.

The report recommends an urgent and independent public inquiry into the serious allegations of abuse of power against the Minister of Justice and Federal Attorney-General. Pending this inquiry, Mr. Bayo Ojo, SAN, should stand down as Attorney-General or, if he fails to do so, be relieved of his position in the public interest.

The People vs. The Attorney-General
In the Matter of the Independence of
Nigeria’s National Human Rights Commission

Introduction: A Routine Re-Deployment?
As a condition for its election to the United Nations Human Rights Council in May 2006, Nigeria pledged “its determination and commitment to continue to promote and protect human rights at home by strengthening and actively supporting the work of the National Human Rights Commission.”

On Monday, 19 June 2006, the first day of the first Session of the newly established United Nations Human Rights Council, Mr. A.S. Durojaiye, Director of Personnel Management in Nigeria’s Federal Ministry of Justice, wrote to Mr. Bukhari Bello, Executive Secretary (and Chief Executive Officer) of Nigeria’s National Human Rights Commission (NCHR) purporting to re-deploy Mr. Bello back to the Federal Ministry of Justice. The letter ordered Mr. Bello to vacate his position as Executive Secretary immediately and to hand over his responsibilities to the senior-most officer in the Commission. Mr. Durojaiye’s letter was written under the instructions of Nigeria’s Federal Justice Minister and Attorney General, Mr. Bayo Ojo, SAN. On its face, the letter gave no reasons for the re-deployment.

This Ministerial decision crystallised the severe deterioration in Nigeria’s human rights record, which accelerated with the onset of the failed attempt to prolong the tenure of the government of President Olusegun Obasanjo. Across the country, there is a widespread belief that “a process of vengeance against political enemies and the media” has begun, resulting in serious violations of human rights and, especially, repression of political participation, free expression, association, and public assembly and dissent. The attack on the independence of the National Human Rights Commission diminishes the prospects for securing effective protection against these violations and suggests that the government may be planning an escalation of human rights abuses.

This report chronicles the facts of how Nigeria’s Justice Minister compromised the independence of the NCHR, attempted to force out of office the Executive Secretary of Nigeria’s NCHR, and orchestrated egregious violations of the commitments it made prior to its election to the United Nations Human Rights Council. It provides details of the background to the decision by the Minister, its motives, the reactions that followed it, and the legal and institutional context showing that the purported removal of the Executive Secretary was both unlawful and an abuse of power.

A Ministerial Invitation
The alleged re-deployment of Mr. Bello followed his meeting with the Justice Minister at the latter’s request and in his official residence in Abuja on the evening of Saturday, 17 June 2006. At the meeting, the Justice Minister informed Mr. Bello that he had asked to see him out of courtesy for the many years in which he had known Mr. Bello in other capacities. He told Mr. Bello that the President of Nigeria was unhappy with him and had requested the termination of his appointment for three reasons, namely:

 A press briefing by the Executive Secretary criticising numerous incidents of disobedience of court orders by the Federal Government and its agencies, and harassment and intimidation of the media and journalists by Nigeria’s security agencies. The Council of the NCHR requested the Executive Secretary to address this press conference at its meeting Benin, Edo State, in May 2006.

 a statement read by the Executive Secretary on 11 May 2006 at the 39th Ordinary Session of the African Commission on Human and Peoples’ Rights in May 2006, in his capacity as Chairperson of the Co-ordinating Committee of African National Human Rights Institutions and on their behalf, condemning sit-tight African leaders and denouncing “African leaders who are not military men but using constitutional amendments to perpetuate themselves in power.”

 a recent statement by the Executive Secretary reiterating the position of the United Nations High Commissioner for Human Rights that the Guantanamo Bay detention facility was incompatible with the obligations of the United States of America under international law to ensure protection of human rights protect human rights, and should be closed.

In response, Mr. Bello reportedly informed the Attorney-General of the mandate of the National Human rights Commission (NCHR), to “deal with all matters relating to the protection of human rights as guaranteed by the Constitution of the Federal Republic of Nigeria, the African Charter, the United Nations Charter and the Universal Declaration of Human Rights, and other international treaties on human rights to which Nigeria is a signatory.” He said he believed that it was the responsibility of the Justice Minister to explain, uphold, and defend the functions and independence of the Commission in government. Replying, the Attorney-General reportedly told Mr. Bello that he should have been “diplomatic” in criticising human rights violations by government. In closing the encounter, the Justice Minister advised Mr. Bello to expect a letter conveying the termination of his appointment on Monday.

Protest by Chairperson of NCHR
The Justice Minister did not give prior notice of his decision nor of Mr. Bello’s alleged re-deployment to the Council of the National Human Rights Commission chaired by recently retired Supreme Court Justice, Francis Iguh. On hearing of the alleged re-deployment, Justice Iguh promptly travelled to Abuja from his residence in Onitsha, Anambra State, in South Eastern Nigeria, where, on the afternoon of 19 June, he met with the Justice Minister to protest the Minister’s interference in the independence of the Commission. Justice Iguh also reportedly explained to the Minister that, in respect of the activities over which the Minister had communicated concerns to Mr. Bello, the Executive Secretary acted in fulfilment of the mandate of the Commission and with the support and instructions of its Council. In reply, the Justice Minister reportedly informed the Chairperson that he would consult the President and convey a response to the Chairperson of the Commission before embarking on previously scheduled international travel on the evening of 20 or 21 June. The Minister did not contact the Chairperson before travelling out of Nigeria on 20 June.

A Reprisal for Critical Work
The actions of the Minister in attempting to remove the Executive Secretary of the National Human Rights Commission created uproar both within and outside Nigeria. All the reactions were unanimous that the action of the Minister was an unlawful interference with the independence of the National Human Rights Commission.

In a joint statement issued 28 June, the Special Representative of the Secretary-General of the United Nations on Human Rights Defenders, Hina Jilani, and the Special Rapporteur of the African Commission for People and Human Rights on Human Rights Defenders, Reine Alapini-Gansou, expressed “profound concern” at the purported removal of Mr. Bello. They feared that “Mr. Bello’s removal was occasioned because of his public statement of the critical stance taken by the National Human Rights Commission on a number of human rights issues” and confirmed that “Mr. Bello has been targeted by the Government following his statement at the thirty-ninth session of the African Commission on Human and Peoples Rights, press statements and media appearances criticizing the failure of authorities to respect human rights and the rule of law.” In particular, the Special Representative and the Special Rapporteur concluded that:

The Special Representative and the Special Rapporteur find that the removal of Mr. Bello represents a reprisal for his critical work in the defence of human rights as Executive Secretary of the National Human Rights Commission. The experts regret this form of interference with the work of the National Human Rights Commission that can only result in undermining its independence and obstructing its work for the protection and promotion of human rights. They, therefore, urge the Government of Nigeria to take all measures that are necessary to restore confidence of the Commission in the guarantee of its independence and freedom to perform its essential functions.

The Nigerian Human Rights Community unanimously denounced the purported removal of Mr. Bello, describing it as an unwarranted interference in the independence of and an attempt to intimidate the Commission. In two separate petitions to the African Commission on Human and Peoples Rights and the United Nations High Commissioner for Human Rights, they urged the suspension of consultative relations between the Nigerian National Human Rights Commission and regional and international institutions for the protection of human rights.

Leading international human rights organisations, including International Federation of Human Rights, International Service for Human Rights, Amnesty International, Human Rights Watch, and the World Organisation against Torture (OMCT), all strongly denounced the actions of the Justice Minister. In a Joint Statement on 23 June, the Observatory for the Protection of Human Rights Defenders, a joint programme of the International Federation of Human Rights and the Geneva-based World Organisation against Torture, condemned decision to remove Mr. Bello as “an attempt to silence the Commission and to prevent it from carrying out its human rights mandate” The International Service for Human Rights denounced the Minister’s action saying it “violates the United Nations principles regulating the status and functioning of National Human Rights Institutions, which are spelled out in the Paris Principles.” Human Rights Watch described it as a “politically motivated assault on the independence of the National Human Rights Commission”, while Amnesty International strongly condemned Mr. Bello’s removal as “serious interference with the independence of the NHRC”

Justice Minister’s Belated Explanation
The Minister initially publicly offered no reasons for his actions. Following consultation with his Council members and in the absence of contact or feedback from the Minister, Justice Iguh, as Chairperson of the Council of the National Human Rights Commission, scheduled an emergency meeting of the Council of the Commission on Tuesday, 27 June. Shortly before the beginning of the meeting on the same day, the officials from the office of the Minister delivered a letter to the Chairperson of the Council, inviting them to a meeting with the Justice Minister in his office at noon on Friday, 30 June 2006. By the time of his meeting with the Council of the National Human Rights Commission, the Justice Minister was faced with a crisis of his own making.

Before the meeting began on 30 June, the Minister ordered Mr. Bello who had accompanied members of the Council of the Commission, out of his office building. At the meeting, which took place two weeks after the Minister’s first encounter with Mr. Bello, the Justice Minister for the first time informed the members of the Council of the Commission that he “re-deployed” the Executive Secretary to pave way for an administrative and financial audit and investigation of complaints of financial and administrative irregularities lodged with him by several persons against Mr. Bello. When asked by surprised members of the Council whether he had brought the existence or contents of these allegations to the attention of Mr. Bello, the Minister reportedly admitted that he had not. He also was unable to offer any reasons for the delay in notifying the Council of the Commission of the existence of allegations.

In explaining his actions, the Minister, in a statement published by Thisday Newspaper on Tuesday, 4 July 2006, claimed:

As the parent Ministry, we thought we should allow investigation to take place, and because he is still a serving staff of the Ministry of Justice, that’s why he has been redeployed to the Ministry. A panel is being set up to carry out the investigations. I met with members of the Human Rights Commission (June 30) because I thought I should intimate them of this before telling the world. If he’s cleared of the allegations, he goes back to the job. They are just allegations. He has not been removed, he’s just been redeployed. It has nothing to do with all the insinuations that he was redeployed because of his comments in The Gambia on AIT, sit tight African leaders, Gauntanamo Bay or others.

I, as supervising Minister, am entitled to redeploy a serving staff of the Ministry of Justice anytime I deem fit. It’s also based on part of the reforms and brings to the fore, the reforms we want to make in the Human Rights Commission, in line with the ongoing reforms in the Justice Sector. I’m of the view that a serving staff of the Ministry of Justice should not be in charge of the Human Rights Commission, preferably it should be someone from outside, to give it a true independence the place really deserves. It will continue to be the way it is until the reforms are concluded and the law is amended accordingly. There’s an amendment Bill on the Human Rights Commission before the House of Assembly right now, as part of the reforms, which I envisage. People should hear the other side before they jump to conclusions and start making insinuations. All we’re trying to do is to reposition or reorganise the Human Rights Commission.

Until the time of this report, the Minister had failed to substantiate his allegations against Mr. Bello. He had not communicated the existence of any such allegations or their contents to Mr. Bello or to his legal representatives. Similarly, the Minister had also failed to announce the membership of the panel to inquire into the allegations nor provide details of their place of sitting or methods of work.

Playing Low and Dirty: Ministerial Abuse of Power
24 hours before the meeting with the Council of the Commission, the office of the Justice Minister began to float the name of Mrs. Folashade Ajoni, a staff of the Federal Ministry of Justice representing the Minister on the Council of the NCHR, as replacement for Mr. Bello. In the week-end following the meeting, between 1 and 2 July, the Press Secretary to the Minister, Mrs. Boade Akinola, visited leading media houses in Lagos to plead with editors and heads of news rooms to “go easy” on the Justice Minister and focus instead on the Minister’s belated and unsubstantiated allegations of financial irregularity against Mr. Bello.

On Monday, 3 July, the Minister announced the appointment of Mrs. Ajoni as Acting Executive Secretary of the Commission. This announcement contradicts the Minister’s claim that he had no desire for staff of his Ministry to head the Commission.

On Tuesday, 4 July 2006, the Justice Minister wrote to the Inspector-General of Police to request the deployment of Police personnel to prevent Mr. Bello from gaining access to the premises of the Commission. On the same day, about fourteen Police officers, including ten uniformed and four others in plain clothes were spotted around the premises. They claimed to have instructions from the Justice Minister to arrest Mr. Bello on sight if he showed up on the premises of the Commission. He made no allegation that Mr. Bello had committed or was suspected of a crime. This further substantiates the impression that the Minister chose to bend the law and abuse the institution of government in order to get his way.

On the following day, 5 July, Mrs Ajoni resumed duties at the headquarters of the Commission in Abuja. In a statement issued on the same day, the Nigerian Human Rights Community described her appointment by the Minister to the position of Acting Executive Sectary of the Commission as “unlawful, illegal, and unknown to law”, declaring that they “will not accord any recognition to the office of the Acting Executive Secretary and will campaign to ensure that regional and international institutions for the protection of human rights similarly deny the office recognition.”

The Minister Acted Unlawfully
Nigeria’s National Human Rights Commission is established under the National Human Rights Commission Act, No 25 of 1995 to protect human rights, investigate allegations of violations of human rights by both government and other actors, assist victims of human rights violations and undertake activities to promote human rights policy, education, and awareness such as seminars, conferences, studies etc. The work of the Commission is overseen by a Council which comprises a Chairperson, representatives of the Federal Ministries of Justice, Foreign Affairs, and Internal Affairs, representatives of human rights NGOs, the Nigerian Bar, and the media; three other persons representing a diversity of interests, and the Executive Secretary.
Under S.2(2)(g) of the Act, the Executive Secretary is a member of the Council of the Commission. According to S. 4(2):
A member of the Council may be removed from office by the President, Commander-in-Chief of the Armed Forces if he is satisfied that it is not in the interest of the Public that the member should remain in office.
Concerning the tenure of the Executive Secretary, the same law provides in Section 7(2):
The Executive Secretary shall hold office for a term of five years in the first instance on such terms and conditions as the President, Commander-in-Chief of the Armed Forces may, on the recommendation of the Attorney-General of the Federation, determine, and may be re-appointed for one further term of five years and no more.
Clearly, under the National Human Rights Commission Act, the Justice Minister lacks the power to remove the Executive Secretary of the National Human Rights Commission or appoint a replacement. These are powers that only the President can exercise. Moreover, as a Presidential appointee, Mr. Bello was not and could not be available for re-deployment unless he had been lawfully removed from his statutory office. This has not yet happened. Contrary to the claim by the Minister of Justice, the office of the Executive Secretary of the National Human Rights Commission is a statutory creation, not an appendage of the Ministry of Justice. This is the legal basis for insisting that its independence deserves to be defended.
Violations of African Charter and Paris Principles
Quite apart from being unlawful, the action of the Minister also violated international legal standards obliging Nigeria to protect, respect and uphold the independence of the Commission. In Article 26 of the African Charter on Human and Peoples’ Rights, which is domestic law in Nigeria, the government of Nigeria undertakes to “guarantee the independence of. …appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed in the Charter.” Principle 3(a)(iv) of the Paris Principles, requires the establishment of National Human Rights Commissions for the purpose of “drawing the attention of the government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the government.” Principle 6 of the Paris Principles requires governments to “ensure a stable mandate for the members of the national institution, without which there can be no real independence.”

Serious Diplomatic Consequences for Nigeria
By orchestrating these serious violations of Nigeria’s domestic, regional, and international obligations, the Justice Minister and Federal Attorney-General, Bayo Ojo, SAN, exposes the country to serious diplomatic consequences and loss of international esteem, including:

 Domestically, the NCHR will lose the support and participation of Nigeria’s respected and quite active human rights community and of donors. Already, in response to the actions of the Minister, the Nigerian human rights community has announced suspension of collaboration with both the Federal Ministry of Justice and the NCHR. Also, in protest, at least one international partner of the Ministry and Commission has suspended indefinitely further collaboration with the Commission.

 At the regional level, the African Commission on Human and Peoples’ Rights will suspend the Affiliate Status of Nigeria’s NCHR once it confirms these violations. This suspension will deny Nigeria vital representation at the highest levels of human rights policy making in Africa.

 For similar reasons, Nigeria will also lose its position as Chairperson of the Co-ordinating Committee of African National Human Rights Institutions and will be suspended from further membership of this important regional forum of African national human rights institutions pending full restoration of the independence of the Commission.

 Internationally, Nigeria will be suspended indefinitely from membership of the International Co-ordinating Committee of National Institutions (ICCNI), pending re-certification of its compliance with the Paris Principles.

 In addition, Nigeria will lose it membership of the very influential sub-committee on Credentials and Accreditation of the ICCNI on which it represents Africa. Hosted by the United Nations High Commissioner for Human Rights, the Credentials and Accreditation Sub-Committee currently comprises four countries selected on a representative basis, namely: Canada (Americas), Denmark (Europe), Fiji (Asia-Pacific), and Nigeria. This Committee is responsible for monitoring and certifying compliance with the Paris Principles by newly established national human rights institutions. Such certification is a pre-condition for membership of the ICCNI.

Together, these measures risk returning the country to the international pariah status of its recent past.

Conclusions and Recommendations
The Justice Minister’s removal of the Executive Secretary of the NCHR was a clear case of abuse of power. There is overwhelming evidence to show that it was a premeditated act of reprisal against Mr. Bello for his bold efforts to hold Nigeria’s federal government accountable for its poor human rights record.

The Justice Minister lacked legal authority to remove Mr. Bello or to appoint a replacement in his stead. Such authority resides only with the President of the Republic. In the absence of such authority, the Attorney-General resorted to smears, threats, and intimidation of a public servant. The Minister clearly interfered with the independence of the NCHR in the most egregious way possible. In so doing, he damaged the credibility and effectiveness of the Commission.

In acting the way he has, the Attorney-General usurped Presidential powers. He has also done incalculable damage to the largely successful efforts of the administration of President Olusegun Obasanjo to reconstruct Nigeria’s international esteem and reputation. Above all, the Federal Attorney-General has lowered the esteem and authority of his office. He has become a liability to the federal government and, in the circumstance, his position has clearly become untenable.

While considerable, the damage caused by the Justice Minister’s misconduct is not irreparable. For this purpose, the Nigerian Human Rights Community recommends:

 An urgent and independent public inquiry into the serious allegations of abuse of power against the Minister of Justice and Federal Attorney-General.

 Pending this inquiry, Mr. Bayo Ojo, SAN, should stand down as Attorney-General or, if he fails to do so, be relieved of his position, in the public interest.

 The Federal Government should guarantee that it will respect and uphold the independence of the NCHR. To implement this guarantee, a joint working party of representatives of the government, the NCHR, and the Nigerian Human Rights Community, in partnership with the United Nations High Commissioner for Human Rights, the African Commission on Human and Peoples’ Rights, and the Co-ordinating Committee of African National Human Rights Institutions, should establish firm benchmarks for monitoring compliance with this guarantee.

 Until the Federal government credibly guarantees the independence of the NCHR, Nigerian and international human rights organisations should not accord any recognition to the office of the Acting Executive Secretary of the Commission.

 The Co-ordinating Committee of African National Human Rights Institutions should suspend the membership of the NCHR until Nigeria brings the Commission into compliance with the Paris Principles.

 Similarly, regional and international human rights institutions, including the United Nations High Commissioner for Human Rights and the African Commission on Human and Peoples’ Rights should suspend collaboration with the Commission except technical assistance designed to ensure full restoration of its independence; and

 The Federal government should respect and recognize Mr. Bukhari Bello as of the Executive Secretary of the NCHR and refrain from interfering with the discharge of his responsibilities in that position.

Bukhari Bello: A Distinguished Record of Public Service
Mr. Bukhari Bello transferred his services from the then Sokoto State Ministry of Justice to the Federal Civil Service of Nigeria in May 1989 when he was appointed Legal Adviser to the then National Electoral Commission (NEC). The NEC was a statutory body with legal personality. As principal Legal Adviser to the NEC, Mr. Bello oversaw legal arrangements for the conduct of Nigeria’s elections in June 1993, widely acclaimed as the most credible elections since the country’s independence in 1960. The elections were subsequently annulled by the military regime of then military ruler, General Ibrahim Babangida, while his successor, late General Sani Abacha, imprisoned the winner, Chief M.K.O. Abiola, who died in detention in July 1998.

Following the annulment of those elections, the Federal Government ordered Mr. Bello re-deployed in August 1993 to the Federal Ministry of Justice. On arrival in the Ministry, Mr. Bello was appointed Special Assistant to the Federal Attorney-General and Minister of Justice, a position he held until 2000.

In 1996, the then Federal Attorney-General deputed Mr. Bello as his representative to the inaugural Council of the National Human Rights Commission. In 2001, Nigeria’s civilian President, Olusegun Obasanjo, appointed Mr. Bello Executive Secretary of the National Human Rights Commission for a five-year term. This appointment was renewed in 2005. The position of Secretary of the National Human Rights Commission is a statutory appointment made by the President. The holder of the office is not a staff of any department of government and may only be removed from office in the manner prescribed by the National Human Rights Commission Act. In 2003, President Obasanjo conferred on Mr. Bello, the high National Honour of Member of the Federal Republic (MFR).