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COMMITTEE AGAINST TORTURE REVIEWS REPORT OF NIGER, EXPERTS URGE RESPECT FOR HUMAN RIGHTS IN COUNTER-TERRORISM AND MIGRATION CONTEXTS

27 November 2019

The Committee against Torture this afternoon concluded its consideration of the initial report of Niger on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, during which Experts urged the adoption of a specific law prohibiting torture and greater respect for human rights in the context of the fight against terrorism, and of migration.

Abdelwahab Hani, Committee Member and Country Co-Rapporteur for Niger, expressed serious concern about the reports of incommunicado detention in illegal places of detention. He also raised the question of inhumane treatment of persons detained in the context of counter-terrorism or irregular migration, including deaths in custody.

The criminalization of migration caused a tremendous amount of human suffering, said the Rapporteur. Taking note of the pressure by regional organizations and the European Union, he warned that if the human rights of irregular migrants were neglected, Niger would turn into a new Libya, where the cover of humanitarianism was being used to actually block individuals who left their countries to escape poverty or war.

Other Experts recalled that in 2017, Niger had signed a protocol with the United Nations on the systematic release of children detained due to their involvement with Boko Haram and other terrorist groups. Still, many children – especially those without birth certificates – remained in detention and some were even being prosecuted under the anti-terrorism law.

The delegation of Niger stressed that despite the absence of a specific law against torture, the legal arsenal allowed for the effective repression of any act of torture or ill treatment. The country’s commitment to preventing torture was also evident in the President’s address to the troops in Difa on 9 November, when he urged greatest respect for international human rights and humanitarian law in the fight against Boko Haram.

Maisons d’arrêt were official places of detention, a delegate said, and recognized that people were also being detained in the police school, intelligence services and military headquarters. Those, however, were not custodial facilities and as far as the authorities knew, there was no prolonged detention of individuals there.

An inter-ministerial committee had been created to look into individual cases of children detained on the charges of terrorism. They were transferred to the specialized transit and guidance centre in Niamey which currently held 48 children in conflict with the law. Of those, 35 were former Boko Haram operatives, while two minors were still being detained on charges of criminal conspiracy in connection with terrorism.

Because of its belief in human rights, Niger would never become Libya, stressed the delegation. Niger had made agreements with the United Nations Refugee Agency and the International Organization for Migration, under which migrants were returned to Agadez or to their countries of origin. No migrant was prosecuted because of their migratory status. They were prosecuted because they committed a crime.

In his concluding remarks, Abdou Dan Galadima, Secretary General of the Government of Niger and head of the delegation, reiterated Niger’s commitment to adopt a law against torture, including by fast-tracking it through the National Assembly.

Jens Modvig, Committee Chairperson, said that the Committee’s concluding observations, to be issued at the end of the session, would contain three recommendations marked for urgent implementation. Niger should report to the Committee on the status of implementation within a year.

The delegation of Niger included the Secretary General of the Government Niger and representatives of the Ministry of Justice, Inter-ministerial Committee tasked with drafting treaty bodies reports, and the Permanent Mission of Niger to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of Niger at the end of its sixty-eighth session on 6 December. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.

The Committee will resume in public on Wednesday, 4 December at 3 p.m. to discuss follow-up to concluding observations under article 19, follow-up to individual communications under article 22, and reprisals.

Report

The Committee has before it the initial report of Niger (CAT/C/NER/1).

Presentation of the Report

ABDOU DAN GALADIMA, Secretary General of the Government of Niger, introducing the report, recalled that Niger had acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 5 October 1998 and to the Optional Protocol on 4 November 2014.

The delay in the submission of the report – which covered the period from 1998 to 2017 - was not synonymous with a lack of interest in the Convention; rather, it was due to the lack of a national mechanism in Niger for the preparation of reports to treaty bodies. In 2010, this obstacle had been resolved and Niger had submitted all its initial and periodic reports to human rights treaty bodies, Mr. Dan Galadima said.

Torture, ill treatment and barbarity were still practiced throughout the world. This was especially the case in areas outside of States’ control.

In Niger, the prohibition of torture was a ius cogens norm enshrined in the Constitution. Despite the absence of a specific law against torture, the legal arsenal allowed for effective repression of any act of torture or ill treatment, reassured Mr. Dan Galadima. The President had reiterated the firm prohibition of torture on 9 November 2019 in Difa, a city that had suffered murderous attacks by Boko Haram. He had called on the army to fight the enemy and protect the population in line with international human rights law and international humanitarian law.

Niger was careful to respect its international obligations, including those under the Convention and its Optional Protocol. The progress made since 2017 included accession to a number of international and regional human rights instruments. Domestically, the State had adopted 44 laws and decrees to improve the human rights situation and the conditions in which the population lived.

Mr. Dan Galadima stressed in particular the law 2018-37 on the organization and competence of the judiciary in Niger, which had expanded the judiciary coverage of the country. The reforms in the judiciary sphere included the creation of the specialized judiciary centre for the fight against terrorism and the setting up of appeal courts in each of the eight administrative regions. Twenty-seven new bodies had been created – each with a first instance court - to complete the coverage of the country and to bring the courts closer to the people. Communal courts had been created in all the communes in Niger.

In June 2011, the national agency for legal aid had been created and it had branches in 10 higher courts in the country. More than 11,500 persons had received legal aid during the 2015-2019 period.

Despite the internal resistance, Niger remained determined to abolish the death penalty. The moratorium on executions had been voted on in December 2018. There had been no executions since 21 April 1976, when seven persons had been executed for crimes against the security of the State. All this reaffirmed that the process to abolish the death penalty in Niger was irreversible, said Mr. Dan Galadima.

Torture in all its forms was prohibited. Although the legislation did not contain a definition of torture in line with the Convention, this did not stop Niger from prosecuting acts of torture. Human rights organizations were able to visit places of detention. The police, gendarmerie and Garde Nationale were trained in human rights, which went a long way in preventing torture. Between 2017 and 2019, several members of the law enforcement bodies had been prosecuted for acts of torture.

The proposal for the establishment of a national prevention mechanism against torture had just been approved by the technical committee in charge of validating legal texts. The proposal would soon be submitted to the Cabinet of Ministers for approval.

Mr. Dan Galadima reaffirmed the Government’s commitment to improving the conditions of detention. Since 2016, Niger had built five new prisons and rehabilitated 19 others, and constructed 28 youth wings and medical wards that met international standards. The national gender policy and the national strategy for the prevention of gender-based violence had been put in place in 2017. Actions to prevent child marriage and eradicate trafficking in persons were ongoing.

Since 2015, however, Niger had had to face serious regional security challenges, instability and migratory flows. Despite the continued attacks and the prorogation of the state of emergency in the affected areas, Niger made sure that the non-derogability of torture was upheld.

No country could confront the contemporary challenges on their own, Mr. Dan Galadima said. He concluded with a call for a return to a centrality of multilateralism.

Questions by Committee Experts

ABDELWAHAB HANI, Committee Member and Country Co-Rapporteur for Niger, took positive note of the fact that the prohibition of torture represented a ius cogens norm enshrined in the Constitution. He also noted that Niger’s initial report was almost 20 years late, and acknowledged the serious security challenges that the country was facing.

While the Constitution guaranteed the right of everyone to be protected from torture, the Criminal Code did not specifically prohibit such conduct. The Constitution was also clear that everyone would be punished for torture according to the law, but the law did not define nor prohibit torture. Worryingly, the anti-terrorism and migration legislation even seemed to authorise such practices in some cases.

The Co-Rapporteur urged Niger to ensure that, as a minimum, the law should contain the definition of torture as per the Convention and asked the delegation to update the Committee on the draft amendment to the Criminal Code which sought to incorporate certain articles of the Convention against Torture.

The Convention was very clear on the admissibility of confessions obtained under torture. That was why it was a source of concern that the Code of Criminal Procedure allowed judges to decide on the admission of evidence.

The Co-Rapporteur recalled that General Comment 2 clarified the scope of article 2 of the Convention concerning obligations of States. It clearly stated the importance of putting in place fundamental legal guarantees for persons deprived of liberty as a way to prevent torture.

Were there registries of detained persons? In a country in which many other languages coexisted with French and given the high level of illiteracy, how were the detainees informed of their rights? Mr. Hani expressed concern about the low number of lawyers and their uneven distribution throughout the country and wondered about the access of detainees to a defence attorney.

What were the activities and impact of the legal aid agency? Did non-governmental organizations that could offer legal advice and aid have access to detainees?

The delegation stated that everyone had the right to be seen by a medical doctor, while detention authorities had an obligation to issue a certificate of good health for all people held in remand. While laudable, such measures did not seem to be implemented. How many medical doctors were available in prisons and were they trained in the Istanbul Protocol?

There was an undue delay in people appearing before the courts and prolonged police custody, especially for people detained on terrorism charges. Where were such people held and what were the timeframes for their detention? How could a detained person challenge the legality of his or her detention before a judge?

The Co-Rapporteur asked whether women in detention were separated from men. Turning to children in pre-trial detention, especially those arrested on terrorism charges or detained because they were irregular migrants, the Co-Rapporteur asked if they were separated from adults.

The delegation was asked to explain the conditions of detention in maisons d’arrêt, remand centres, including access of detainees to food and water. The Committee was concerned about reports of extremely high overcrowding in such centres – as high as 300 per cent.

The Co-Rapporteur expressed serious concern about the reports of incommunicado detention and illegal places of detention. The premises of the intelligence services attached to the Office of the Presidency, the police and military schools were allegedly being used as illegal places of detention.

The Committee was very worried about reports of inhumane treatment of persons detained in the context of the counter-terrorism strategy or irregular migration – including death in custody. It seemed that human rights defenders detained in such contexts were especially badly treated. Had those deaths in custody been investigated? Had any perpetrators been prosecuted and sentenced for torture and ill treatment?

The statute of limitation for acts of torture and amnesty for the perpetrator were a real obstacle to impunity for torture and ill treatment.

Mr. Hani commended Niger for the fact that citizens could invoke the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in court. However, it seemed that this could only be done before the Constitutional Court and the Council of State – could the Convention be invoked in criminal and civil courts too?

He asked the delegation to explain the regulation of manifestly unlawful orders and raised concern that, because of the absence of the definition and prohibition of torture in the law, manifestly unlawful orders might not applicable in such cases.

The delegation was asked about the excessive use of force by law enforcement and security forces, especially in relation to the mass arrest of civilians in areas where a state of emergency had been declared. What sanctions and disciplinary measures had been taken against the police officers and the officers of the Garde Nationale who had committed acts of torture and ill treatment in 2016-2017?

The Co-Rapporteur welcomed the establishment of the national human rights institution, its independence and multidisciplinary approach in the promotion and protection of human rights. He also noted with satisfaction the efforts to confer on this institution the functions of the national prevention mechanism, in line with Niger’s obligation under the Optional Protocol to the Convention.

The Committee was frustrated by the persistence of wahaya - domestic and sexual slavery. Recalling that slavery was prohibited, the Rapporteur asked about concrete measures the State was taking to end this practice. What was being done to root it out from customary law?

Mr. Hani hailed Niger for broadening the protection under the principle of non-refoulement. However, in 2018 Niger had extradited several hundred Sudanese to Libya, where they were at risk of torture and ill treatment. What was the judicial procedure for the refoulement of migrants, was there a collective procedure, and what possibility of appeal was available?

The criminalization of migration caused a tremendous amount of human suffering, the Co-Rapporteur said. Recognizing the tremendous amount of pressure by regional organizations and the European Union, he warned that Niger risked turning into a new Libya if it did not pay attention to the human rights of all, including migrants.

Commending Niger for incorporating the principle of universal jurisdiction, Mr. Hani asked whether it had been invoked in any cases. Could the delegation update the Committee on extradition procedures for crimes of torture and ill treatment?

ESSADIA BELMIR, Committee Member and Country Co-Rapporteur for Niger, recalled that Niger had declared a state of emergency in 2007 to protect itself from terrorism. As prescribed by the 2010 Constitution and the August 2018 law on the state of emergency, this measure had been renewed every three months by Presidential decree. The state of emergency had also been extended from Difa to other areas in which armed groups were operating.

The Committee wondered about the alignment of those measures with article 4 of the International Covenant on Civil and Political Rights and was concerned about the reports of abuse of power by security and law enforcement officials. This included allegations of arbitrary arrests and detention and illegal detention of journalists and human rights defenders.

Anti-terrorism legislation contained a rather broad definition of terrorism, which was not in line with international standards. The concern was that such a broad definition could give rise to abuses and the violation of the law. Furthermore, the legislation extended the duration of pre-trial detention beyond the limits laid down by the country’s criminal procedure legislation.

Migrants had to go underground to protect themselves from refoulement to countries where they knew they were at risk of torture and ill treatment. This was done at a great personal risk, including human trafficking, exploitation and abuse. In the city of Agadez, the Special Rapporteur on human rights of migrants had witnessed the appalling conditions and human rights violations of individuals living in migrant ghettos.

The Co-Rapporteur highlighted the concern about the situation of migrant children, who reportedly were not recognized as children in migratory procedures. There were reports of labour and sexual exploitation of many migrant children and the lack of specific protection for unaccompanied migrant children.

Niger should implement the recommendations of the Special Rapporteur to ensure the better management of migration. It was imperative to transform the current security-based approach into a human rights-based approach to managing migration. The training of officials on the human rights of migrants could play an important role in realizing such a shift.

Ms. Belmir also urged Niger to put the prohibition of torture on its statute books. Failing this, the legal machinery would remain unable to deal with preventing and repressing torture and ill treatment, especially by security and law enforcement bodies.

The slowness of judiciary proceedings was a serious challenge. Most people in detention – up to 80 per cent – were in pre-trial detention and not yet convicted. Niger should urgently increase the extremely low number of judicial officers and strengthen access to legal aid.

Other Experts recalled that in 2017, Niger had signed a protocol with the United Nations on the systematic release of children detained due to their involvement with Boko Haram and other terrorist groups. Still, many children – especially those without birth certificates – remained in detention and some were even being prosecuted under anti-terrorism laws. The Committee was gravely concerned about the situation of those children, given the dire conditions of detention, the inadequate application of juvenile justice provisions, and the lack of coordination between justice, social services and child protection authorities. How many children were behind bars and what was being done to address this situation?

An Expert complimented Niger on its upgrade to a Tier 2 country by the United States Department of State and its trafficking in persons report. The higher ranking was explained by the efforts to convict traffickers, investigate cases and train law enforcement officers. However, the prosecution of slavery and slavery-related practices, including the wahaya, was lacking – why was this? In addition to passing the law prohibiting the wahaya, what other steps were being taken to protect women and girls from torture and degrading treatment?

There were many foreign military and security troops in Niger working to curb irregular migration. This included troops from Italy, France, the United States and other countries. How was Niger ensuring that security and military forces within its jurisdictions complied with the Convention and that the human rights of migrants were protected?

What was the impact of the state of emergency on the civilian population and what steps were being taken to protect civilians?

Abortion was prohibited and there were cases of women being prosecuted and imprisoned for the act.

JENS MODVIG, Committee Chairperson, asked whether prison infirmaries were able to treat the most common diseases of detainees. What was a “suspicious death in custody” and who decided if a death was suspicious or not; how many suspicious deaths occurred in a year? Did the pattern of deaths in custody follow the pattern of diseases?

Replies by the Delegation

Responding to questions raised, the delegation of Niger said that despite the absence of a specific prohibition of torture, the legal framework indeed contained some references to torture. Niger had drafted a law on torture, which had been discussed in the Cabinet of Ministers this morning and its adoption by the National Assembly would hopefully happen soon. The bill contained many articles of the Convention; the definition of torture and the liability for torture included all State officials and members of Parliament.

In the draft law, torture carried prison sentences of one to five years and if the tortured person died, the sanction increased to five to 20 years in prison. Furthermore, there was no statute of limitation for torture and orders by superiors could not be invoked to justify acts of torture. The bill would override article 415 of the Code of Criminal Procedure concerning the authority of a judge to admit evidence and would prohibit the admission of evidence or confession obtained under torture.

Niger was a member of the West African Economic and Monetary Union, whose rules superseded domestic provisions concerning fundamental legal guarantees. The rules stipulated that any person deprived of liberty, including under the anti-terrorism law, had the right to see a lawyer within 24 hours.

On the death of Sule Labo who had allegedly died under torture in police custody in Maradi, the delegation said that this person was a gang leader who had died in a police cell. The medical examiner had found no injuries on the body and the cause of death had been attributed to infection. Sule Labo had been in the final stages of AIDS.

There had been three amnesties in Niger. The first had occurred in 1995 following the armed rebellion and had been integrated in the Comprehensive Peace Agreement. The second amnesty had been granted to the perpetrators of the 1999 coup in which President Mainassara had been killed. The third had been granted to the authors of the 2010 coup and those who aided and abated them. Niger was a forgiving nation and over 90 per cent of the people had voted in favour of constitutional amendments that allowed amnesties.

Following its visit to the country in 2014, the Subcommittee on Prevention of Torture had made three key recommendations to Niger: to adopt a plan of action for the creation of a national prevention mechanism, to submit its report to the Committee against Torture, and to improve conditions of detention. Instead of creating a new body, Niger had decided that the national human rights institution would serve as the national prevention mechanism.

Customary law was the main source of law in some areas of the country, especially in family affairs. However, when the customs clashed with fundamental freedoms or with international norms, the judges ruled it out. For many people, there was no conflict between the two laws and people could choose whether their marital regime would be governed by customary law or by civil law.

On extradition, the delegation said that Saad Gaddafi had not been automatically extradited. Upon his arrival to Niger, he had been taken into custody and an agreement had been made that he would not make subversive actions towards Libya or Niger. After the Government had obtained evidence of his conniving with armed groups in Libya, he had been extradited to the internationally recognized Government in Libya. Two Malians accused of war crimes and crimes against humanity had been extradited to the International Criminal Court.

Recently, Niger had requested Algeria to extradite a Nigerian national suspected of terrorism, which had not yet happened. Extradition requests had been received from several countries, including Turkey and Benin. The Sudanese who had been deported to Libya had been engaged in armed activities in Darfur and in subversive activities in Niger. It was for this reason that they had been deported rather than based on their migratory status.

Turning to the situation of migrants, the delegation stressed that Niger would never become Libya. Because of its belief in human rights, Niger had made agreements with the United Nations Refugee Agency and the International Organization for Migration, under which migrants were returned to Agadez or to their countries of origin. No migrant was prosecuted because of their migratory status. They were prosecuted because they committed a crime. Nationals from the Economic Community of West African States could enter the country and obtain the status of regular migrants.

Female genital mutilation was criminalized in 2016 and much progress in rooting out the practice had been made. Niger today had the lowest rates of cutting in the region, the delegate said. Some 200 neighbourhood watch units had been set up. From 2016 to 2019, more than 143 professional cutters – older women mostly - had renounced the profession and at least three had been prosecuted for cutting.

Niger had deployed a great deal of effort to abolish the death penalty. Since the 2011 transition, the issue had been before the transitional Parliament, however, the abolition bill had not received enough votes to pass it into law. In 2013, the authorities had organized activities to raise awareness on the issue of abolition among the members of Parliament. The Government intended to re-submit to Parliament the Second Optional Protocol to the International Covenant on Civil and Political Rights for ratification.

Since 1976, the death penalty had not been implemented and the Government did not plan to implement it. Still, judges continued to hand down the death penalty. Commutation of the death penalty to life sentences usually occurred on 18 December, Niger’s Independence Day.

Abortion was criminalized, except in two instances: when the life of the mother was jeopardized by her pregnancy and in case of severe foetal malformation incompatible with life.

Since 2015 the region of Difa had been targeted by Boko Haram, forcing people to flee. The 58,000 refugees from Mali were housed in three camps and there were 215,000 refugees from Nigeria.

One hundred and twenty-four lawyers were registered with the bar association in Niger; of those, three worked outside the capital. Niger was a large country and clearly this number of lawyers was insufficient. Despite the incentives in place, very few lawyers left the capital in order to work in the interior. To reduce this problem, the courts appointed “defence lawyers” to work in the interior – these were not lawyers but were passionate and knowledgeable about the law. The legal aid agency fulfilled its mandate and had exceeded the 2019 targets by 15 per cent.

In all police stations and in many custodial facilities, there were separate wings for juveniles in conflict with the law, and for women. Niger would continue to work to meet international standards in this area, said the delegation, and to improve conditions of detention in accordance with available resources. Creating a prison world that was humane ate up much of the available budget, mainly because of overcrowding of over 300 per cent in many prisons.

Maisons d’arrêt were official places of detention. People were also detained in the police school, intelligence services and military headquarters, but those were not custodial facilities and as far as the authorities knew, there was no prolonged detention of individuals there.

An inter-ministerial committee had been created to look into individual cases of children detained on the charges of terrorism. They were transferred to the specialized transit and guidance centre in Niamey which currently held 48 children in conflict with the law, of whom 35 were former Boko Haram operatives. The children received support and assistance in the centre before being repatriated and reintegrated in their communities of origin. Two minors were still being detained on charges of criminal conspiracy in connection with terrorism. They were supervised by the anti-terrorism judge of the Minor’s Hub.

Another delegate said that Niger was an extremely large country, four times the size of France. Two-thirds of the country was desert and hard to control. The activities of the terrorist groups – Boko Haram, Al-Qaeda and others – had spilled over into the Sahel, creating unrest in the entire region. Twenty per cent of Niger’s budget was allocated for security purposes. Niger had accepted the presence of foreign troops under military cooperation agreements. They provided the Government with information and assistance. It was important to highlight that Niger guaranteed the respect for human rights. The national human rights institution was able to operate with full independence and its resources had been increased.

The situation in the region had caused the displacement of populations, many of whom crossed international borders. Niger had thousands of internally displaced persons and supported numerous refugees from neighbouring countries.

Follow-up Questions and Answers

ABDELWAHAB HANI, Committee Member and Country Co-Rapporteur for Niger, reiterated concerns about the efforts of the Government of Niger to block the advancement of migrants to their countries of destination. He urged Niger to learn from the Libyan experience of “criminal humanitarianism”, where the cover of humanitarianism was being used to actually block individuals who left their countries to escape poverty or war.

ESSADIA BELMIR, Committee Member and Country Co-Rapporteur for Niger, reassured the delegation that the Committee was cognizant of the security situation in Niger and stressed that even in a state of emergency, every individual must enjoy non-derogable rights, including the right to life, the right to be free from torture, and the right to fair procedure. What was being done to ensure that torture was not being committed in Niger, including in areas in which a state of emergency had been declared?

Responding to those and other questions, the delegation said that a dismissal of a case of torture or ill treatment in a criminal case did not mean that a victim could not seek compensation from the civil court. In such a case, the victim had to prove damages and harm done.

The customary law allowed men to have a maximum of four wives. The practice of wahaya allowed them to “buy” the fifth wife, who effectively became a sexual slave. The practice had been banned by the 2005 law against slavery and slavery-like practices. While the number of cases had dropped significantly, it persisted among certain groups of the population and in some areas of the country. The delegation stressed that Niger was the first country in the region to have enacted a law against slavery and slavery-like practices

Concluding Remarks

ABDOU DAN GALADIMA, Secretary General of the Government of Niger, in his concluding remarks, thanked the Experts for their interest in Niger and reiterated Niger’s commitment to adopt a law against torture, including by fast-tracking it through the National Assembly.

JENS MODVIG, Committee Chairperson, thanked the delegation for the constructive dialogue on the initial report. The Committee’s concluding observations, to be issued at the end of the session, would contain three recommendations marked for urgent implementation.

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