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Nigeria's Engagement with the Human Rights Council's Universal Periodic Review: Potential for Acculturation or Risk of Regression?

Document Cited authorities 2 Cited in Related
Vincent
Pages267-297
Author
DOI10.3366/ajicl.2020.0313
Date01 May 2020
Published date01 May 2020
INTRODUCTION

After gaining independence from British colonial rule in 1960, considerable efforts were made to promote and protect human rights in Nigeria. The post-independence constitutions of Nigeria guaranteed human rights and instituted mechanisms for their enforcement.1 The Nigerian National Human Rights Commission was established in 1995.2 However, from 1966 to 1999, eight military coups destabilised Nigeria and negatively impacted on human rights protection in the country.3 There has since been a return to civilian rule with some relative gains in the promotion and protection of human rights. Nevertheless, extrajudicial killings, impunity by security forces and prolonged pre-trial detention have remained a human rights challenge.4 These have become more challenging by the terrorism activities of Boko Haram and the anti-terrorism efforts of the government in striking a balance with respect for human rights. Many of these human rights issues have featured prominently in the engagement of Nigeria with the Universal Periodic Review (UPR) mechanism of the Human Rights Council.

The UPR is a unique mechanism of the Human Rights Council (HRC) which relies entirely on cooperation and dialogue to implement human rights. Unlike other UN human rights mechanisms, states are the principal actors and reviewers in the UPR mechanism. The review takes place every four and a half years in three main stages which include the preparation of state reports, the review of the state in Geneva and the follow-up process. The four major principles underlying the review include objectivity, universality, cooperation and complementarity5 and with the principal objective of improving human rights situation on the ground.6 The legal bases of the review include the UN Charter, the Universal Declaration of Human Rights, binding human rights treaties, voluntary pledges and commitments made by states and applicable international humanitarian law.7 The review equally welcomes the participation of NGOs, albeit limited, during the plenary session of the HRC when a state report is being adopted.8 The first cycle of the review (hereinafter UPR I) spanned 2008 to 2011 and the second cycle (hereinafter UPR II) was undertaken from 2012 to 2016.

Can the UPR Be an Effective Human Rights Monitoring Mechanism?

Whether the UPR is an effective mechanism for monitoring the human rights compliance of states has been a source of contention among many scholars. Some authors argue that human rights mechanisms that rely on the cooperation of states are weak and cannot meaningfully advance human rights.9 Olivier de Frouville argued that the UPR ‘has failed to live up to expectations’ because it overshadows the hard work of the treaty bodies, is wholly dependent upon the goodwill of states and cannot, as a political entity, make a legal assessment or interpretation of the human rights obligations of states.10 He advocates for a more confrontational mechanism – the establishment of a World Commission of Human Rights.11 This echoes the sentiments of some international relations and international law scholars who advocate for a more coercive compliance paradigm. They contend that compliance with human rights norms is largely a function of powerful states' (or institutions') willingness to enforce them.12 An alternative argument is that human rights institutions can only create impact when created with the power to enforce the norms and punish state violation.13

Another strong critic of the UPR mechanism is Manfred Nowak. Nowak, former UN Special Rapporteur on Torture, argues that the UPR ‘suffers from the disadvantage that states’ performance in the field of human rights is assessed by other states rather than by independent experts.’14 For Nowak, the UPR, by not permitting special rapporteurs and treaty body experts to participate in the review, undermines the work of the treaty bodies and special procedures. The general presumption which underlies the criticisms of de Frouville and Nowak is that monitoring human rights implementation is best tackled by human rights expert bodies rather than states. However, their analyses undermine the potential value of the UPR and do not provide empirical data on whether the UPR is effective or not in improving the human rights situation of states.

Exclusive reliance on ‘strong’ enforcement mechanisms would undermine the potential of cooperative mechanisms. Avoiding human rights rhetoric or ritualism does not necessary require ‘strong’ enforcement mechanism. About 25 years ago, Opsahl advocated for the necessity of a ‘softer approach’ rather than the traditional notion of ‘right-breach-responsibility-process-sanction, leading to punishment of any violator or at least to redress for any victim’.15 Kenneth Roth has argued that coercive mechanisms are not suitable to deal with violations of economic, social and cultural rights.16 There has also been evidence that questions the effectiveness of coercive mechanisms. Empirical analysis from 1981 to 2000 concluded that ‘economic sanctions deteriorate citizens’ physical integrity rights’,17 especially when directed towards dictatorial regimes.18 The UPR mechanism which relies on cooperation and gives the state some degree of control over the process can be sometimes at least as, if not more, effective than coercive mechanisms.

Since 2012, Rhona Smith, Helen Quane and Takele Bulto have analysed the impact of the UPR in different regions.19 Smith's 2012 case study of Pacific Island states demonstrated that these states actively engaged with the interactive dialogue of their reviews during UPR I and were receptive to UPR recommendations. Smith, nevertheless, pointed to the fact that their engagement was limited by their inability to participate in the review of other states due to technical and financial constraints.20 With regards to states within the Association of South East Asian Nations (ASEAN), Quane argued in 2015 that the UPR mechanism has enhanced the relationship between ASEAN states and the global human rights mechanisms.21 According to Quane, the UPR impacts other mechanisms by making particular recommendations which have increased their engagement with the UN treaty bodies and special procedures.22 Quane's case study also highlighted the fact that disagreements on the death penalty and the rights of Lesbian, Gay, Bisexual and Transgender (LGBT) persons have limited the engagement of many states in the region.23 In Bulto's 2015 general analysis on Africa, he found that African states engage more with the UPR mechanism than with other human rights mechanisms because of the almost complete control they have over the outcome of the UPR process.24 But he argues that their engagement lacks genuine commitment and is a manifestation of rights ritualism.25

This article provides the first comprehensive empirical analysis of Nigeria's engagement with the UPR mechanisms. It underscores the value of cooperation in monitoring human rights compliance by examining the effectiveness of Nigeria's engagement with the UPR mechanism. To evaluate the ‘effectiveness’ of Nigeria's engagement with the UPR, I employ an approach which evaluates ‘effectiveness’ in terms of the level of state commitment to the UPR process, participation during the review sessions and the aggregate percentage of implemented UPR recommendations. The benefit of this approach is that it provides important indicators to a state's level of engagement and enables a comprehensive assessment of that engagement by examining state engagement with the key stages of the UPR process.26 Also, this article considers the potential for acculturation and the impact of conflicts and terrorism on Nigeria's engagement with the UPR.

 NIGERIA AS A STATE UNDER REVIEW (SUR)

The UPR Working Group (WG) reviewed Nigeria in February 2009 and October 2013 respectively. As a result of its membership of the HRC, the Nigerian government entered voluntary pledges and commitments which are included as part of the assessment basis for its review. Fifty-two states made recommendations to Nigeria during UPR I, 13 of which were African states. Out of a total of 3227 recommendations, 30 were accepted by the government of Nigeria. It accepted all the recommendations from African states. During UPR II, all states made a total of 219 recommendations to Nigeria of which it accepted 84 per cent. The high acceptance level evident in both UPR cycles indicates an active engagement with the recommendations. Some states like Botswana, China and South Sudan did not accept more than 50 per cent of recommendations made to them during UPR I. South Sudan in particular did not accept more than 85 per cent of the recommendations made to it during UPR I.28 Figures 1 and 2 provide an analysis of Nigeria's engagement as a state under review. It depicts its review by African states compared to other groups of states.29 The category of recommendations and areas where Nigeria was most engaged are further examined in Figures 3 and 4.

Nigeria UPR I percentage of recommendations accepted.

Nigeria UPR II percentage of recommendations accepted.

UPR I acceptance level by category.

UPR II acceptance level by category.

Figures 1 and 2 indicate that Nigeria engaged with recommendations within and outside its regional group. However, it maintained a stronger engagement within its African regional group. As seen in Figure 1, Nigeria accepted all the recommendations from African states during UPR I. This constituted 21 per cent of the total recommendations made to Nigeria during UPR I. Figure 2 shows that during UPR II it rejected only about 1 per cent of recommendations from African states compared to about 9 per cent of the recommendations rejected from WEOG. This finding would indicate that Nigeria is more receptive of intra-African recommendations and more likely to reject recommendations from Western states.

There was a remarkable...

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