Professor Anslem Chidi Odinkalu is the senior legal officer for the Africa Programme of the Open Society Justice Initiative. Based in the Abuja office, Odinkalu is a lawyer and advocate from Nigeria and currently also chairs the Governing Council of Nigeria’s National Human Rights Commission. Odinkalu received his Ph.D. in law from the London School of Economics and Political Science.
Prior to joining the staff of the Open Society Justice Initiative, Odinkalu was senior legal officer responsible for Africa and Middle East at the International Centre for the Legal Protection of Human Rights in London, Human Rights Advisor to the United Nations Observer Mission in Sierra Leone and Brandeis International Fellow at the Centre for Ethics, Justice and Public Life of the Brandeis University, Waltham, Massachusetts.
Odinkalu is widely published on diverse subjects of international law, international economic and human rights law, public policy and political economy affecting African countries. He is frequently called upon to advise multilateral and bilateral institutions on Africa-related policy, including the United Nations Economic Commission for Africa, the African Union, the Economic Community of West African States and the World Economic Forum.
The erudite lawyer has extensive networks across Africa which were built up over several years of working for human rights and social justice on the continent. He is associated with several non-governmental and academic institutions within and outside Africa.
Among other affiliations, Odinkalu is a member of the Human Rights Advisory Council of the Carnegie Council on Ethics and International Affairs, of the Boards of the Fund for Global Human Rights and of the International Refugee Rights Initiative.
He is also the founder of the Section on Public Interest and Development Law (SPIDEL) at the Nigerian Bar and member of the Executive Committee of the Nigerian Bar Association.
At his office in the highbrow Maitama District of Abuja, Odinkalu was in his convivial elements while fielding questions from the Time Nigeria editorial crew led by the editor, Abdul Rahman Aliagan.
In this insightful conversation, Odinkalu speaks on the commission’s mandate, extra-judicial killings, the landmark achievement of the commission under his watch as well as other issues of national interest. To Odinkalu, Nigeria needs a leader with passion, honesty and a bit of madness to drive growth and development. Excerpts.
How is the commission living up to expectation in terms of achieving its mandate?
The mandate of the commission is very straight forward. It is the protection and promotion of human rights in Nigeria. And it extends to providing remedies to people who apply to it, present petition to it with complaints of human rights violations; human rights education as well, and advisory services to government in relevant cases. To understand what the commission can do, you need a little bit of history.
The commission was created in 1995. In November, it is going to be 20 years old. It was created in the aftermath of the execution of Ken Saro-Wiwa and the Ogoni activists. The primary thing at that time it was used for was appeasement; appeasement of Nigerians and appeasement of the international community. It was part of the panoply of the military rule which the Abacha administration put in place for that purpose.
The commission was pretty much under the thumb of the regime until 2010 when the current law was enacted and we came into existence late in 2011. At this time, it was transitional, moving away from a situation in which it lacks independence to a situation in which it should win independence and credibility based on being able to call government to account, on being able to tell government when it is wrong, where it needs to improve in respect to protecting the rights and dignity of Nigerians and that is really what the commission is trying to do over the last few years.
What is the commission doing on the issue of extra-judicial killings?
I will be quite brutal. I will start by disappointing you. The commission cannot bring extra-judicial killings to an end by itself. That is the bad news. The only way to bring extra-judicial killings and unlawful policing and third degree policing to an end is if Nigerians wish it to happen, and if the police wish it to happen.
The police is the oldest institution in Nigeria and it is also the biggest employer of labour. The police have been in this country since 1861. It is 150 years old. The commission has been in existence for 20 years. The police have over 370,000 employees, the commission has under 600 employees. So it is a miss-match to think the commission can bring all these to an end. I will be very realistic with you. Although the police have been in existence for this long, it is a little more complex because for over 125 of the 150 years the tradition of the police has lived under the wrong regime.
First, for 100 years, it was under colonial rule and colonial rule was not meant to treat you and I with dignity. Then for pretty much 29 years there after it has been under military rule which again was not meant to protect the rights of you and I, so for over 125 years out of 150 years, the tradition of the police has been formed under dictatorship. It is therefore not going to end in a day. It is not going to end in one generation.
…Actually Nigerians can sometimes feel that third degree policing is the way to go. You and I have a dispute; I go and pay a police officer so that somebody gets hurt or I go and bribe a police officer so that somebody gets beaten up. Now, until we begin to learn that doing things properly helps and that the person who may be hurt when we try to bend the police could be ourselves or somebody else who is close to us, we are not going to make progress.
Having said that, the commission is doing some things, some of it is prophylactic as in trying to train the police away from those methods that are not useful to better the habits of investigations. So we’ve had trainings, we‘ve had collaborations with the Intelligence College of the Police in Enugu state and all of that to make sure that better mechanisms are put in place for that. We are focusing on pre-trial justice to be sure that what the police do before it charges people to court is keeping with what the constitution requires, for accountability, such that being able to seek accountability for police officers who are involved in third degree methods tough administrative processes via the Police Service Commission, or through prosecutorial mechanism of the criminal process, those are being done.
Like I said in the wide scheme of things, it is a pebble in an ocean and we’ve got to have collaborative action between the police, the political leadership, the judiciary, prosecutorial entities, human rights institutions of course and the citizens, without that progress is not going to be assured.
From what you have said it seems there is a missing link because the government has the responsibility to guarantee and safeguard the human rights of every citizen.
I have personally not put forward any theory of a missing link. The view I take is that every society is imperfect and every generation faces the challenge of contributing to perfect the imperfections. Knowing that we do not operate a perfect society but also understanding that by making an effort and investing in the right direction we can diminish the imperfection that exists.
It is easy to cite the declaration of human rights of 1948, at least it is a phenomenal document and it is a defining document in the human rights world. But it is also the fact that most of the countries that exist in the world today never participated in negotiating the declaration of the fundamental human right. As a matter of fact citizens of most of our countries were not even considered citizens or full fledged human beings at the time the declaration was put in place. We were under colonial rule. We were second-class, third class human beings compared to the white folks. That is a fact! That’s all part of the process of correcting imperfections because independence was another landmark and with independence we then acceded to all of these instruments and continue to make progress.
Returning to democratic elective government is another landmark and we will continue to make those improvements. Every improvement requires efforts, requires leadership, requires service and some other things, as we continue to improve on governance, on governmental legitimacy, on the way we organise ourselves we will invariably record progress in human rights.
Professor Anslem Chidi Odinkalu
But it is not the other way round; you do not wish human rights into being. Everyone has a right to life, life expectancy in Nigeria is 47 and falling; yet we all have the right to life. In Rwanda 20 years ago, it was 40 years, this year it is getting to 61 years life expectancy. We all can do different things in our respective ways to improve what happens in our country and that is the way to make sure that we perfect imperfections. I am not taking about a missing link but as a developing country we owe ourselves a responsibility to continue to seek improve and get things better.
Is there any landmark achievement in the recommendation made by the commission to the government for prosecution?
Every day, the commission deals with cases of human rights violation, lots of them and the objective really is to ensure that people who suffer human rights violations do not go to court in a way that cost them more money, more inconvenience, more time, more expenditure and more trauma and what the commission tries to do is to make sure that victims who comes to it are minimize in all of these things. How do we that? We have a multi-door resolution mechanism that includes mediation conciliation, arbitration, inquiries, contentious dispute resolutions, everyone of which outcome would be backed by enforcement and the commission for instance, the biggest category of cases that we have are related to domestic violence and violations of the human rights of women in intimate relations. In those cases the commission’s brokered settlement worth hundreds of millions of naira for the victims, children who are born to men who beat up their mothers, abandon their mothers, who don’t send the children to school and do all kind of things. So what the commission does is to require the men to be responsible, accept their responsibility and not violate the rights of the child or the rights of the woman or the right to the private and family life of the party involved, that is one.
We have made some interventions in the area of the ongoing insurgency, some of the difficulties that are being encountered there. Some of the things we have done regrettably I am not at liberty to say because of the nature of the situation but they have been very far reaching things that the commission to.
The commission has been investigating demolition and evictions in the past two years and we have been able to at least prevent lots of demolitions. Some of the demolitions that were started we got to stop. It took the intervention of the commission to stand down the demolition of Mpape.
And of course in the elections, the commission rallied everything it could to make sure that we prevented the onset of the country into mass atrocity via election related violence. And I like to think that over the past three and half years, the commission made some fairly significant inroads into the public imagination, into trying to carve a niche for itself but it’s early days yet but there is a great deal that could be done.
Your question talked about prosecution. Specifically the ultimate decision of prosecution lies with the Attorney General, it is not that of the commission and all we’ve got to do is make the case for prosecution. For instance if you take a case of election violence and you recommended 114 people for prosecution to the Attorney General, it is up to the Attorney General to decide whether or not he wants to prosecute. I am happy with the work the commission has done in that respect. It is up to the Attorney general to decide what it wants to do.
Don’t you think the commission should be empowered to prosecute and not only recommend to the government as the case is currently?
I would like to optimise the existing competence of the commission before changing the law. What does Nigerians think about legislative amendment? We count all amendment as a success. I don’t believe in that. I do think that we’ve got to make the law work to optimal to its potentials. At the moment the National Human Rights Commission’s Act as amended is working less than 25 percent of its capacity so there is huge vast room for improvement. The most dangerous thing you can give people who have never had independence is independence. For the first fifteen, sixteen years of its life, the commission lacked independence, it is either at the thumb of government at different levels and they did different things with it. Trying to persuade people who have never known independence that having independence in the public sector can pay takes time. Until that happens I think it will be dangerous to ask the commission to take on all these other responsibilities. It just not going to do anything well.
Some Nigerians in Diaspora face a lots of human rights abuses, how is the commission working to protect their rights?
The primary responsibility to protect Nigerians everywhere is that of the government and in particular consular protection which is really what it is when you have Nigerians in Diaspora facing all of these. This is one of the biggest responsibilities of the state everywhere. That is why we are citizens. When you look at your passport it requires anybody who comes in contact with you outside to extend to you courtesy of protection at the request of the Federal Republic of Nigeria signed by the President. That is why we have presidents and that is why we set up government.
The foreign ministry does have primary responsibility for that. What the NHRC does is to liaise with the foreign ministry that on every foreign mission that Nigeria has got actually does have a consular section. The consular section provides protection for Nigerians for that purpose. When we get this kind of complaints we liaise with the foreign ministry to ensure that consular protection is extended and is working properly. You can’t always be sure given the state of our foreign missions that that’s always the case, so we continue to keep contact with them.
The commission does not have its own extra-territorial competence. Our competence is limited to Nigerian borders, so what we do we do with the foreign ministry. That said, to be fair, as I said quite a good numbers of our foreign missions could be improved in terms of the quality of service and capabilities that they have and render to Nigerians in Diaspora.
There is a generic attitude towards black people in many countries that are not black and towards Nigerians particularly, even amongst black people and some of that attitude is prejudicial, and I think to some extent one needs to recognize that.
Thirdly, sometimes we also don’t help ourselves. A significant number of our citizens travel in circumstances that make them prey to predatory behaviour of officialdom whether here or beyond or of regular populations elsewhere. Some of them don’t have regular travel documents whether the documents are procured by unlawful means or whatever the documents are irrelevant. In some cases although they travel in regular circumstances the documents have expired, others find themselves in formal economies in highly formalized context which means that they cannot even get minimal benefits of the countries and they can’t even disclose themselves to the Nigerian mission there because when they do they could easily get deported because it means they are outing themselves into a formal system. Some others find themselves in situations that they can’t even access Nigeria because they came in with documents suggesting that they came from other countries.
All of these complicate the jobs of Nigerian missions overseas and the job of trying to protect Nigerians.
Human rights violation is usually on the rise during electioneering campaigns, INEC is preparing for elections in some states, what is the commission doing
to ensure that human rights are respected?
The primary responsibility of conducting elections belongs to INEC. The most the NHRC can do is to provide complimentary advocacy support to INEC in respect of accountability for the things that people can do. Yes it’s true. The governorship election is first for Kogi state and then Bayelsa state will take place soon, I believe dates have already being designated for both. But you can see that with what happened in the last elections it’s clear that if we rally our assets around proper conduct of election, it’s possible. The worst case was 2007 but since then we’ve continued to record improvement and I hope that we have different government in power now and a hopeful disposition in the political space. We can continue to improve. Kayode Fayemi in Ekiti state is the first politician to lose an election in this dispensation and congratulate the person declared winner and accept the outcome. In the aftermath of that President Jonathan did the same thing in the presidential election and you had a few other candidates do something similar in the last elections which say something. In elections we often celebrate the winner but the person who determines whether or not there is violence is the loser. Losers have a huge role to play in elections and I do think that we also need to begin to celebrate those persons declared losers who have stepped up and recognized that Nigeria is bigger than any one person’s ambition, it is about supplementing your ambition to the larger public interest and recognizing that the people who get killed are not the big men, they are all in bullet proof vehicles with security gadgets and all of that. It is the poor people who get trampled on the foot in these things.
But as I said, we’ve made progress. In 2011 post election violence we lost over 500 people. We want to organize elections in Nigeria in which nobody is killed, in which nobody carries guns and shoot people, in which no woman is raped, in which nobody is forcibly displaced. That is going to happen down the road but as long as we keep making improvement my view is that that is desirable and we have to continue to hope that we can continue those improvements to a point where all these violations come to zero. But that requires an INEC that continues to be independent and continues to show integrity and continue to be led by people who recognize that independent institution are necessary for democratic society.
You declared you asset publicly in 2012 when you assumed responsibility as Chairman of NHRC at a time most public officers rarely do, why did you choose that path?
First of all, I wasn’t the first person to do it. In 2007, President Yar’Adua published his assets and don’t forget that President Jonathan who appointed me also declared… secondly Governor Fayemi and the late Funmi Olayinka in Ekiti also did publish their assets, so I wasn’t doing anything new, that’s one. Number two, I spend a little much of my professional life time advocating for open and transparent government. I co-drafted with Tunde Fagbohumi SAN in 1993 what was today known as the FOI Act, then we were young lawyers in our 20s. We didn’t have a snowball chance in hell at that time thinking that what we were drafting at that time was going to be law in Nigeria and yet that’s where we are. I think I have a special responsibility giving my personal involvement in the argument for the FOI Act to make sure that I did minimum compliance.
The third thing is that I personally believe that there is virtue in publishing your assets. Public officers in Nigeria come under undue expectation and undue demands. People think you are richer than you are; people think government gives you more than you are worth. I am quite poor. I believe it was in my self interest to let people know that I don’t have more than I have. So if anybody comes to me with the demand that I cannot fulfil or I cannot afford I let them know that this is what I am worth, which one do you want? If you want my books take them. So it was an act of self-preservation, quite honestly, that’s how I saw it.
A lot of people told me, “your parents are going to be killed, they will be kidnapped.” Kidnap them for what, E11, 000? Or a semi-detached house in Lekki? It’s all silly. We’ve got to get our priorities right in Nigeria, the fact that you can pay your bills, that does not make you comfortable or rich. I do believe that public service is a vocation that everybody should be involved in and if you do not get your public service right, you don’t get your government right, everything you do is in vain.
I firmly believe in public service ethos and believing in public service ethos means publishing your assets. Not living beyond your means, sticking with values and defending them even if there is a gun to your head. That really is where I was coming from. But like I said I wasn’t doing anything no other person had done. President Yar’Adua did set terrific example, God bless his soul and I hope that under this dispensation that example that he set can be carried forward.
Your advice for the government
I don’t advise government. If they come to me with a request for advice I will do that. But people are elected; they are elected on a platform, so they already have enough advice. There is the manifesto, you campaign, you sell yourself to the people and in the course of all of that you get a lot of things. I don’t advise government in power. It can seem arrogant, it can seem gratuitous, I don’t know anything better than they know. They have the courage to put themselves forward and Nigerians voted for them at different levels whether legislative or executive and I wish everybody in power well. At the end of four years Nigerians will have their say and take a decision on whether or not they‘ve fulfilled their responsibilities.
The one thing I know is that public office is a huge responsibility. If you don’t want to accept that responsibility, keep out. At the elective level, it is not a beauty parade; it is not a mutual aberration club. You’ve got to do things that are not exactly very popular but as long as they are necessary, because this country needs leadership that is single minded and at every level that we find ourselves we’ve got to be single minded.
Sometimes, as I discovered in the National Human Rights Commission, if you are a dominant minority you are a minority of one because people are used to doing things the old way–begging, pleading. It is not going to work. You’ve got to have a mission, some passion, honesty and a bit of madness to be able to lead this country at any level and you pray for public support and a bit of luck. But if you don’t have those, you are wasting your time. As I said mission, passion, and a bit of madness, that’s my prayer for the people who are in power at any level and may God bless them.
