Forensic Evidence Gathering After Mass Atrocities: North-East And North-West Nigeria In Perspective | Tellwell Newspaper
Tellwell Newspaper, Abuja – Nigeria:
By Gloria Mabeiam Ballason
No generation of Nigerians have witnessed mass horrors and mindless degradation of lives in an enlightened era like Nigerians living in our days and time. It is a time when a man is murdered before his fleeing wife and the wife cannot wait to take another look at the dying breath of her husband or she will herself have no breath to tell the story. It is a time when a mother has no time to process the murder of her son because her daughter is about to be violated not by one man but tens of men who see her as a spoil and sexual prey.
It is a time when the marauders have issued a perpetual order to butcher the boys, debauch the daughters, murder the mothers and finish-off the fathers. These Mass Atrocities have become normal and yet our normal is abnormal for human existence. Because we do not seem to understand the extent of our human debasement, every now and again, the world alarm bell goes out. It rang again on September 2, 2022 when the Global Terrorism Research Analysis organisation released its rating that reveals Nigeria as the second most insecure place to live in the whole world next only to Iraq. Since 2009, Nigeria has vacillated in the first seven spots for the most terrorized country in the world in the Global Terrorism Index (GTI). But does the Nigerian government reckons with how bad the security situation is? Hardly.
Let us examine the mass atrocities in North-East and North –West Nigeria, the epicentres of Terrorism in Nigeria and the focus of this discourse.
MASS ATROCITIES IN NORTH-EAST AND NORTH-WEST NIGERIA
An Atrocity crime is a violation of international criminal law that falls under the historically four legally defined international crimes of genocide, war crimes, ethnic cleansing and crimes against humanity. They are large-scale, systematic violence against civilian populations and often consist of: murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, sexual violence, persecution against an identifiable group, enforced disappearance of persons, apartheid and other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.
According to the Global Centre for the Responsibility to Protect (Global R2P), more than 35,000 People have been killed in Northern Nigeria since 2009 when Boko Haram launched its insurgency with at least 1.8million Internally Displaced Persons in Adamawa, Yobe and Borno states.Trade, commerce, health services and education amongst other transactions, have been disrupted.
Since 2011, violence has escalated in Central and North-West Nigeria. The states in this region include Kaduna, Kano, Katsina, Kebbi, Sokoto and Zamfara. Jigawa and Kano are also in the north central but have not really been affected. The areas which have also been heavily affected include Southern Kaduna, Taraba, Benue, Plateau, Nassarawa, Niger, Kogi and parts of the Federal Capital Territory. Southern Nigeria and Eastern Nigeria are also not immune to these incidences.
The initial reading of the violence was that it was rooted in resource scarcity but the large scale horrors and the sophistry of the attacks soon revealed a metamorphosing trajectory of terrorism that continues to mask under various guises. For instance, in 2021, the Armed Conflict Location and Event Data Project reported that over 2,600 civilians were killed. Between January and March 2022, at least 360 people were killed in Katsina state while over 60 civilians were reportedly killed in Dikwa Local Government of Borno state.
The United Nations Office for the Coordination of Humanitarian Affairs reports that the security situation has led to a humanitarian emergency for 8.4 million people. 80% of whom are women and children requiring assistance.
EXAMINING THE BOKO HARAM ATTACKS
Attacks by Boko Haram has led to mass murders, sexual violence, brutality, mass pillage and looting of livestock, money and other valuables, abductions and kidnapping of men, women and children. Torture, bombings, armed assault, hostage taking, arson, ethnic cleansing and genocide also occur.
Attacks by terrorist bandits are characterized by maiming, Kidnapping and abduction of women and children, arson, raiding of farmlands and ravaging of farmlands by their livestock, murder, armed assault, hostage taking, freeing and release of detained members and warlords from correctional facilities. There are gruesome murders in the fashion of beheading and decapitation to death. Ransom is often demanded, armed robbery, assault, brigandage, maiming, drug use, bombings and other forms of terrorizing acts are used by the belligerents in different forms and fashion.
EVIDENCE GATHERING FOR PROSECUTION OF MASS ATROCITIES
The evidential threshold for prosecuting crime is proof beyond reasonable doubt which means the evidence must stitch together a solid proof beyond the doubt of a reasonable person that a crime was committed and that it was committed by the perpetrator to the victim. With the nature of mass atrocities crime, how can such evidence be gathered and used for prosecution that can lead to justice? Let us take the Crime of Rape for example and situate it in Kaduna State where this conversation is going out from. The Law requires that the evidence shows:
(a) That the accused had sexual intercourse with the victim
(b) That the act of sexual intercourse was done without consent or that the consent was obtained by force, fraud, threat, impersonation or deceit.
(c) That the accused had the means and intention to have sex with the victim without her consent
(d) That there was penetration. See S 257 of the Penal Law of Kaduna state and the punishment section in Section 258.
Given the nature of Mass Atrocities and the location, situation and magnitude of sexual predating partners and rapists that a victim may encounter, how easy is it to gather the evidence for a prosecution that ends in justice for a woman raped in Sambisa Forest or at a Kidnappers den? Let us take three other crimes for examples:
To prosecute Murder there must be evidence that:
The deceased has died
That the death of the deceased was caused by the accused
That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that grievous bodily harm was its probable consequence. (Section 189 and 190 of the Penal Code Law of Kaduna State.)
To prosecute abduction and kidnapping there must be evidence:
That the victim was seized and taken away by the accused person.
That the victim was taken away against his/her consent.
That the victim was taken away without lawful excuse.
Here, the offence is incomplete until and unless the victim is carried away against his wish.
To prosecute Torture there must be evidence that:
There was intentional infliction of severe pain or suffering.
It was for the purpose of intimidation, to obtain information, as punishment or to intimidate, or based on discrimination or by instigation with the consent of state authorities.
(See Section 246 of the Penal Code Law and Section 232-236 of the Penal Code Law which provides for the Crime of wrongful confinement and its variations.
All the aforementioned crimes which have and are being prosecuted by terrorists are prohibited and covered by provisions in the Constitution, Criminal code, Penal code, Administration of Criminal Justice Act and Violence Against Persons (prohibition) Act. The reality though is that the evidence gathering is too cumbersome to connect action to consequences.
At the international level, the term International Criminal Justice is wide. It generally connotes the application of the principle of accountability whether before an international or national judicial body. The term is used to refer to international crimes that terrorist may be prosecuted for. Whilst International Criminal Law is founded on Article 38 (1) of the Statute of the International court of Justice; the exact legal source and scope of international crime is often determined by the legal instrument of the statute of the organ in which the crime is prosecuted.
This can lead to some difference in approach including how terrorism -related crimes may be directly or indirectly prosecuted as international crimes. It is imperative to note however, that there are no criminal courts or tribunals with dedicated jurisdiction over terrorist crimes. Some of the most heinous and high profile cases may be heard by an international criminal court or tribunal such as the international criminal court.
However, there are sources for prosecuting these crimes and they include:
Rome statute of International Criminal Court 1998.
Convention Against Torture and other cruel, inhuman or degrading treatment or punishment.
International Covenant on Civil and Political Rights.
The African charter on Human and Peoples Rights.
These Laws and instruments have been used to prosecute Mass Atrocities. We must however first determine a critical question: Who are the perpetrators and who are the victims?
DETERMINING AND CLASSIFYING PERPETRATORS AND VICTIMS OF MASS ATROCITIES
There is a broad classification of perpetrators and victims. Members of Boko Haram, Bandit Terrorists and Kidnappers are classified as the Perpetrators/Criminals while those at the receiving end of their actions are classified victims. What do you say of the Chibok Girls who after eight years of being abandoned by the Nigerian state have become the enslaved women they call wives and their amorous/sexual relationships have caused some of them to become sympathetic or even conformists and perpetrators of the crimes associated with Boko Haram?
What do you call the Children born out of these relationships who without a choice were born to terrorists and are growing into the exclusive socialization that they know? How do you classify a soldier who was abandoned at his duty post and was taken hostage by the Criminals and forced to carry out their agenda?
How do you classify abjectly poor villages who are given gifts by the insurgents and their reading of the ‘gratuitous’ dealing of the insurgents with them turn many of their children and young adults to informants for subsequent recruitment into Mass Atrocities? Where do you classify Government when security budgets divert to personal accounts and orders which should be given to security agents to prevent or combat mass atrocities do not come from the Commander in Chief?
It is a complex wave and it is becoming increasingly clear, that our dear country is becoming a massive crime scene. We must therefore make concerted efforts not only to combat Mass Atrocities but ensure yesterday’s survivors do not become today’s victims neither should today’s victims become tomorrow’s combatants It is therefore for good measure and in order to prevent these extremely complex webs that Nations give to themselves Constitution whether written or unwritten and make it Supreme so as to ensure that they are governed by the rule of law and not the ruse of force and impunity.
The first section of the Nigerian Constitution states: Section 1(1) of the 1999 Constitution states: This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
And so that the government does not get overwhelmed pursuing all other things except the primary thing or passing borrowed courses instead of the core course, Section 14 (2) (c) states to the government the primary, fundamental, foremost thing it must do before all else: “The security and welfare of the people shall be the primary purpose of government”. It therefore follows that whatever else government does but fails in this primary duty would amount to placing something on nothing and expecting it to stand. The picture should now be emerging why we are where we are but if it has not, I will be back to it shortly but not before we examine Forensic Evidence Gathering.
FORENSIC EVIDENCE GATHERING AFTER MASS ATROCITIES
In 2018 I had the privilege of participating in the Forensic and Anthropology Foundation in Guatemala. Guatemala has a history: On November 13, 1960, a civil war broke out in Guatemala, a Spanish speaking country located in Central America, South of Mexico. The Civil War ended on December 29, 1996 – 36 years, one month, two weeks and two days after. The population of the Country is 14.9 million. As a consequence of the War, the population was decimated and displaced. The Mayans, the major tribe, and most of the Guatemalan tribes do not believe in their loved ones being buried outside, so they are still searching for their disappeared. They are exhuming graves, conducting Anthropology and DNA tests and searching for relations dead or alive .Thanks to the Forensic and Anthropology Foundation of Guatemala.The Guatemalan Forensic Anthropology Foundation (Spanish: Fundación de Antropología Forense de Guatemala, ( FAFG) is an autonomous, non-profit, technical and scientific non-governmental organisation. Its aim is to help families search for the disappeared and to strengthen the administration of justice and respect for human rights by investigating, documenting, and raising awareness about past instances of human rights violations, particularly unresolved murders, that occurred during Guatemala’s civil war.
Its main tool in pursuing this goal is the application of forensic anthropology techniques in exhumations of clandestine mass graves. Its endeavours in this regard allow the relatives of the disappeared to recuperate the remains of their missing family members and to proceed with burials in accordance with their beliefs, and enable criminal prosecutions to be brought against the perpetrators.
Forensic/DNA evidence gathering options for investigations towards studying terrorist activities have recently attracted a great amount of research interest.The use of the Apriori algorithm on the Global Terrorism Database (GTD) for forensic investigation purposes is being used to study terrorist activities and patterns across the world.The Global Conflict Tracker is also being used to track conflicts and was used to gather the report that has shown that terrorist activities have killed nearly 350,000 people in North-East Nigeria and rendered over 310,000 as refugees in internally displace persons camps in Nigeria.
These forensic evidence gathering options can be enhanced and increased through:
i) adequate training of forensic experts and crime investigators.
ii) introducing Forensic Science as a discipline in higher institutions.
iii) the establishment of well-equipped forensic laboratories in all states across the nation as the existing few lack the basic required equipment, chemical and manpower.
iv) the enactment of Evidence Laws that makes Forensic Science admissible in evidence in court because at the moment in Nigeria, there is no law regulating forensic science application and enforcement in the Evidence Act, Penal Code or Administration of Criminal Justice Act.
TYPES OF FORENSIC EVIDENCE
The following are types of forensic evidence:
Fingerprint analysis
Forensic DNA analysis
Handwriting examples
Blood splatter samples
Forensic pathology
Ballistics
Autopsies
Entomology
Dentistry
Anthropology, which is a study of human Biology and physiological characteristics (bones, size of bones, blunt trauma, amount of force, impact) is also used to move from what is known to the unknown.
PRESERVING FORENSIC EVIDENCE
The five steps recommended for collecting and preserving evidence include:
Obtaining it from the proper source.
Describing the evidence in detailed note.
Identifying it accurately and positively in a legally relevant form.
Packaging it properly for identification, storage or shipment to the laboratory.
Establishing and maintaining the chain of custody.
Specific precautions should be taken in handling weapons used in an attack, clothing , firearm and poisons. Special note should also be taken about items found on victims It is important that all evidence is collected and catalogued and recorded for further reference.
Keeping the record of all sorts of data that is gathered from the crime scene assists an expert to give better opinions and presumption of the situation by analyzing the documentation respectively. Evidence that is not properly recorded and preserved prior to forensic analysis or testing deteriorate or get destroyed or devalued as a source of information.
FILING THE EVIDENTIAL GAPS
There are incidences and crime scenes that can make it difficult to deploy forensics or any sophistication that goes with data collection. Thankfully, evidence gathering is not always a static science. It can be a progressive art. Evidence may be Real, Demonstrative, Documentary Or Testimonial. Section 86 of the Evidence Act 2011 provides for what could be primary and secondary evidence. There is also real evidence (Section 258). E.g a house burnt and the nature of the remains can tell a story. (fuel, carbide, bullet holes etc). So whether evidence is documentary, opinion, hearsay or real, it is important to gather every shred of evidence.
At a more basic and foundational level,we must learn to count so we can account. In the rural and surburban areas, birth certificates from village heads and birth record entries are important. Death Certificates with details such as Age, sex, date of birth and death, cause of death, family/clan of the deceased, mother/father of the deceased, place buried. Tomb stones are good forms of evidence.
CONCLUSION
The extent of atrocities perpetrated in the North-West and North-East and indeed across states in Nigeria must be stopped and addressed. At the moment, no one is immune because until we are all safe, no one is safe. Such is the nature of mass atrocity crimes. There is hence the need to start with what we have and know, to what we don’t have or know in order to find accountability for mass atrocities. The large scale of atrocities in Nigeria calls for the urgent need for Forensic evidence but until we get there, we must explore boundaries for gathering evidence that is unimpeachable in finding justice for victims and communities. While the evidence that is gathered may not always lead to proof beyond every scintilla of doubt, it is sufficient that it is beyond reasonable doubt. I thank you for listening.
Gloria Mabeiam Ballason, Esq; CEO, House of Justice; Executive Director (ED), the Molluma Yakubu Center for Medical Law and Mass Atrocities Accountability; can be reached at:
mcmedicallaw@houseofjusticeng.com; gloriaballason@houseofjusticeng.com
