A critical appraisal of the national institutional mechanisms for the prevention of torture in Nigeria

2.1 Functional independence of the NCAT

A key component of OPCAT’s provision for the establishment of NPMs is to assure that they are functionally independent.10 As explained by Nowak, functional independence must be based upon legislation that makes the NPMs stand out from the other branches of government, in order to maintain control over their institutions.11 In general, the relevant legislation should be an act of parliament that creates NPMs.12 As stated in the preliminary guidelines and the first annual report of the NPM, it is necessary for the state to establish the NPMs through legislation or within its constitution.13 The NPM needs legislative backing to function properly and remain stable.14 It also needs to be autonomous as an institution − a factor crucial to its success and stability.15

Both the 2009 and 2022 NCAT were established through terms of reference in order to fulfil the mandate of OPCAT, but no legislative text was attached to its establishment.16 NCAT was established under the authority of the Federal Ministry of Justice, but the instrument of establishment17 does not have legislative status because it is not an act of parliament or a part of the 1999 Constitution of Nigeria.18 Amnesty International in 2014 noted that NCAT does not possess the legal independence necessary to fulfil any of its functions and mandates.19

As NCAT has no law establishing it, its involvement with the Federal Ministry of Justice suggests that it is an institution controlled by whoever heads the ministry.20 The Attorney General of the Federal Ministry of Justice is appointed by the President, who is confirmed by the Senate. In light of the fact that there is no legislative text establishing the existence of the NCAT, the Attorney General may arguably be able to prevent it from performing its duties, compare to the NHRC Act 2010 (as amended) which prescribed how members can be appointed and how they cease office, which the term of reference did not cover. This grants the AG broader powers than the NHRC.

OPCAT’s torture prevention objective depends on an independent national and international body capable of visiting places where people are deprived of their liberties as a means of accomplishing this goal, countries that have ratified the OPCAT must establish national bodies to visit places where people are being deprived of their liberty.21 The ostensible purpose of NCAT is to visit places of detention,22 but since NCAT is not established by a legal text, it cannot function as required by article 18 of OPCAT.23

Moreover, article 18(3) obligates states to provide ‘necessary resources for the functioning’ of the NPMs.24 According to Murray, and as noted above, the NPMs need ‘the necessary resources’ to function.25 The functional independence of NPM is characterised by an adequately staffed and funded statutory establishment based on an act of parliament or the constitution.26 The letter of reference did not specify how the NCAT is funded. Functional independence requires that an NPM have adequate staffing and provisions outlined in the statute that establishes the NPM regarding its funding.

2.2 Independence of personnel

According to article 18(2) of OPCAT, NPMs must have capable staff members who possess professional expertise,27 in other words, experts with appropriate knowledge in relevant areas (as per the APT).28 Through the Attorney General, the Nigerian Federal government inaugurated a newly appointed NCAT on 11 September 2022 with a broader mandate of preventing torture and liaising with NHRC in discharging its mandate, especially in the area of visitation to Correctional service facilities, to enable it to have first-hand information on the condition of inmate.29 The newly appointed committee has a comprehensive mandate to engage and liaise with the Committee Against Torture and the regional human rights mechanisms. Its responsibilities include conducting follow-up actions, collecting data and information, and consulting with the NHRC as well as civil society organisations.30 Among the newly appointed members are experts from a variety of fields, including human rights, police, academia, law, and non-governmental organisations (NGOs). They include the solicitor-general or the Permanent Secretary of the Ministry of Justice who serves as the chairperson, the Executive Secretary of the National Human Rights Commission who alternates as the chairperson; the Director of Citizens’ Rights within the Ministry of Justice; the Director of Public Prosecutions of the Federation; The Director-General of the Legal Aid Council of Nigeria or any of the Director representatives; the Inspector-General of Police or any of his representatives not below the rank of Commissioner of Police; the Commandant-General of the Nigeria Security and Civil Defence Corps or any of his representatives but not below the rank of a commandant; the Director-General of the Department of State Service or any of his representatives not below the rank of a Director; and the Chief of Army Staff or any of his representatives not below the rank of colonel. In addition, the Chairman of the Economic and Financial Crimes Commission or any of his representatives not below the rank of a Director, and the President of the Nigerian Bar Association or any of his representatives act as members. Christy Mbonu Ezim, the Director-General of the Nigeria Institute of Advanced Legal Studies or any of staff of the Institute not below the rank of a director; the President of the International Federation of Woman Lawyer (FIDA) or any of her representatives; Avocats San Frontières, the Chairman of the Human Rights Agenda Network; Access to Justice; the Director of Nigerian Law School, Chibueze P Okoli also serve as members and the Director of Monitoring Department of the National Human Rights Commission serves as the Secretary.

Providing the necessary resources and selecting the appropriate members are specific responsibilities of each state’s government.31 As required by article 18(4), the government must take into account the Paris Principles when establishing NPMs.32 The Paris Principles provide more guidance on how the members of a human rights institution should be appointed, instructing that representatives from a wide range of backgrounds should be appointed,33 including NGOs, members of parliament, lawyers, and government officials − but the latter should only serve as advisers.34

In accordance with the Paris Principles, the appointment of members must be outlined and stipulated in an official act or legal document,35 which must also embody pluralism.36 However, the appointments cited above cannot be said to be made through an official act or legal document.

As outlined in the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) to the Czech Republic in 2002, an NPM should be distinct from the police service37 an independent body that is not administratively or organisationally subordinate to any government ministry.38 In summary, this suggests that the government should not interfere with the duties of the NPM, but should provide adequate resources and ensure that the NPM is governed according to the Act of Parliament establishing it.39

It can be asked whether all NPMs can be detached from the government. According to Murray, NPMs must maintain a close relationship with the government so that its recommendations and findings are implemented.40 One benefit of an NPM is that it cannot be completely detached from the government as would be in the case of NGOs.41 Murray recommends that NPMs be established by statutes or legal documents that take on a status that extends beyond those of NGOs.42 This would bring them closer to the government while providing them with some influence.43 While being an independent body does not mean the NPM must be ‘friends’ with the government,44 it does mean that the NPM must be able to distance itself from the government while also engaging in constructive dialogue with the government and monitoring detention centres.45 This would enable the NPM to create a relationship and a partnership with the government that would produce lasting trust.46 Thus, it is argued that the inclusion of the Chief of Army Staff, Inspector-General of Police, Director of Public Prosecutions, and Controller General of Corrections on the NCAT committee will provide a balance between NCAT’s capacity as an NPM and the ability to maintain influence on government through these officials, which is not possible for an NGO. Nevertheless, when these government-appointed individuals are unable to distance themselves from the government’s influence, the NCAT committee, as a whole, and its independence will be at risk.47

In addition, the Paris Principles stipulate that for an expert to be independent,48 a legal document detailing their terms of service and terms of renewal must be provided.49 However, it is not stated in the inaugural document of NCAT whether members can renew their positions or what the duration of the term of office will be.50 Moreover, the document that created NCAT members is neither in a constitutional document, nor in a statute.51

2.3 Financial independence

In accordance with OPCAT article 18(3), state parties are required to provide ‘necessary resources’ for the proper functioning of NPMs.52 OPCAT did not specify what ‘necessary resources’ entail, however, the NPMs guidelines indicate that adequate funding is required for the NPMs to perform their functions.53 Having adequate funding allows NPMs to be financially autonomous, allowing them to hire their own staff and direct their own activities.54 Therefore, financial indepen-dence is a fundamental requirement for the NPM to function effectively, and without it, the NPM cannot make independent decisions or operate efficiently.55

According to the APT manual guide, the NPM must be able to develop its own budget that will enable it to function independently of the government.56 This will enable it to make its own decisions.57 Consequently, the founding documents establishing the NPMs must specify the sources of funding and how they should be spent.58 In spite of this, there are no legislative documents establishing the NCAT. The former chairman of the NCAT, Sanni Ameh (Senior Advocate of Nigeria), in a technical consultation on implementing the Anti-Torture Act 2017 held in Abuja on an international day supporting victims of torture, in 2022, alleged that the NCAT lacked adequate financial resources to investigate and send periodic reports to the United Nations.59

The 2021 US Department of State’s Country Reports on human rights alleged that the NCAT also lacked operational independence and legal backing, which had hindered the NCAT from working effectively.60 This implied that NCAT, despite having broad mandates, lacked legal, operational and financial independence to perform any of its tasks. Arguably, this has resulted in a low number of visitations to prisons and none to any police cells.

2.4 Roles and effectiveness of NCAT

The question of the effectiveness of any human rights institution is closely related to the roles of the institution.61 In accordance with OPCAT, the role of an NPM is diverse. NPMs are responsible for conducting regular visits to detention centres62 and making recommendations to the relevant authorities in order to improve the conditions of deprived individuals.63 In addition, they must submit proposals for and comments on any draft legislation.64 Further, it serves as a point of contact for the SPT65 and prepares reports for the SPT on the state of affairs and advises the government when necessary.66

The mandates of NCAT envisage visitation to any place of detention as defined by OPCAT.67 This includes prisons, immigration detention centres, police cells, and places where authorities hold people.68 NCAT, in 2014, with the then chairman and other members, visited Minna Old Prison, Minna New Medium Security Prison, Kontagora Medium Security Prison, Bida Prison, New Bussa Prison, Lapai Prison and Kagara Prison.69 While the efforts of NCAT are laudable, places of detention do not stop at prisons; they include police station cells where the use of torture is most perpetrated in Nigeria.70

The use of torture is said by Human Rights Watch to be a norm in interrogation rooms used by officers of the Nigeria Police Force.71 NCAT visited some police cells and interviewed detainees about their living conditions.72 According to the detainees, they were treated well.73 In spite of this, the NCAT committee members observed that the surroundings were not conducive to the detainees’ well-being.74

Moreover, only Niger state is mentioned in the report out of the 36 states in the Federation.75 It is commendable that the efforts have been made, but there is still a lot more that needs to be done in order to prevent torture in Nigeria. For NCAT to fulfil its mandate and be effective as required by OPCAT, it must be able to visit other detention centres across the country as prescribed in article 4(2) of OPCAT.76

Article 19(c) obligates each NPM the power to submit a proposal about a draft or existing law.77 The NCAT is tasked with the responsibility to continuously review interrogation rules, methods, instructions and practice.78 This implies that the NCAT must ensure that the interrogation rules comply with international law.79 The purpose of reviewing all laws that deal with the practice and treatment of a person arrested is to ensure that torture is always prevented, demonstrating that the government has zero tolerance for the use of torture.80

The use of torture is prohibited, and the NCAT is tasked to report quarterly by briefing the Attorney General of the Federation on cases of torture and proposing administrative and judicial ways forward for eradicating torture in Nigeria.81 This includes proposing laws prohibiting torture (Anti-Torture Act) and developing anti-torture policies for the Federation.82 The NCAT with other civil society organisations and Bristol University, Nigeria Human Rights Commission, the United Nations Subcommittee on Prevention of Torture, Her Majesty’s Inspectorate of Prisons, and Redress helped develop the Anti-Torture Act of Nigeria 2017.83 The proposed Anti-Torture Bill in ‘New Part V’ described the establishment of the National Preventive Mechanism in Nigeria as well as the composition, appointment, duties, and funding of the NCAT.84 Upon the enactment of the Anti-Torture Act 2017, the NCAT section was removed.85

NCAT is designed to ensure that the police and other law enforcement officers, medical personnel, and public officials have adequate knowledge and information on the prohibition of torture in Nigeria.86 This includes custody officials in different prisons, interrogation officers in different law enforcement agencies in Nigeria and people in charge of treating any person arrested or detained in a prison or any other detention centre.87

Nevertheless, Murray contends that another component that may contribute to an NPM’s effectiveness is its visibility.88 NCAT can receive, and in some circumstances, consider communications from those tortured and those with the knowledge of what will happen or when it happened. This communication can come from civil society organisations, individuals and various government institutions.89 In spite of this, the NCAT does not have a presence in the entire country as its only secretariat is located at the headquarters of the NHRC. Also, the NCAT does not have a website where the public may report cases of torture.90

Furthermore, Murray asserts that, for NPMs to be effective, there must be a political will on the part of the government.91 The government must support the work of the NPMs. A state is required to provide NPMs with access to information,92 the place of deprived liberties,93 access to private interviews with detainees without witnesses,94 and the right to choose the location of the visit,95 as specified in article 20 of OPCAT. The NCAT reports show it has visited various detention centres and has access to detainee information during interview processes.96

From September 8th to 19th, 2024, SPT visited Nigeria to assess the treatment of individuals in detention facilities. During its visit, the SPT noted that conditions in detention centres, including police cells, have been abysmal even after the OPCAT’s ratification and the NCAT’s establishment.97

In conclusion, the NCAT, meant to serve as an NPM, lacks an independent and functional preventive mechanism. It indicates that the 2009 and 2022 NCATs have not been independent, as they were not created through legal documents defining their functions, terms of appointment, staff recruitment procedures, operational offices, visitation rights to detention facilities, and funding mechanisms. Nevertheless, it is imperative to know whether NCAT communicates and stays in contact with the SPT as specified in articles 20(f) and 11(b).

2.5 Cooperation between NCAT and SPT

Articles 11(b) and 12(c) of OPCAT set out the relationship between the two institutions. In article 11(b), the SPTs must be able to ‘advise and assist state parties,’ and in doing so, the SPTs must ‘maintain direct contact’, which could be confidential.98 NCAT, through its then chairman, Samson Sane Ameh (SAN), submitted a report to the SPT in 2014 showing what the NCAT had done and what detention centres it had inspected.99 According to the report, the NCAT has been mandated to receive communications from both individuals and civil society organisations.100 It also visits places of detention, ensures that there is sufficient information regarding the prohibition of torture, and reviews laws and legislation.101 The report indicates that Niger state is the only state among the 36 in which centres have been visited102 and convicted inmates, unconvinced inmates, and inmates serving life sentences interviewed.103

The SPT first visited Nigeria in 2014 in accordance with its function to visit countries facing claims of torture.104 The meeting in Abuja involving government officials, NCAT members and the NHRC, focused on how the SPT could help implement OPCAT in Nigeria.105 In 2022, before the new inaugural NCAT, the chairman alleged that the committee could not meet, properly investigate, and send periodic reports to the United Nations due to a lack of funding. It implies that the NCAT lacks operational and functional independence, which does not comply with the OPCAT requirement.106

The NCAT, with other members of the Federal Ministry of Justice, entered into a dialogue with the UN Committee against Torture but Nigeria as a State, failed to submit its initial report in 2021.107 During the dialogue, the UN Committee against Torture experts raised the fact that whilst ‘the Constitution created a right not to be subjected to torture, and the Anti-Torture Law 2017 specifically criminalised acts of torture perpetrated by public officials’,108 there were no specific provisions included in the Anti-Torture Act establishing that the crime of torture was not subject to a statute of limitations and that amnesties and pardons were prohibited for acts of torture.109 Nigerian authorities were also asked whether they ensured that video recorders were used during the interrogation of suspects to show that the suspects were not tortured.110 Nigeria had ratified OPCAT and established that NCAT could visit detention centres. However, the UN Committee against Torture questioned whether NCAT was effectively performing its role as an NPM.111

The Nigerian delegation responded by informing the UN Committee on Torture that the Federal Government was restructuring NCAT to make it more independent and responsive.112 Most responses of the delegates focused more on prison decongestion in Nigeria rather than on statutory limitations, functions and roles of the NCAT and its effectiveness.113 It was further claimed that the Anti-Torture Act 2017 applied all over the Federation.114 The UN Committee on Torture and the Rapporteur replied that:

...it was good to pass laws, but it was better to act on them. The legal framework of Nigeria was not called into question: rather, the questions raised had been more about the implementations of those laws.115

State reporting under an international human rights treaty is important to ensure the accountability of each member country’s government.116 This enables the UN Committee to point the government’s attention to areas that need improvement.117

In conclusion, although Nigeria established two NCATs through terms of reference that outline their mandates, these two NCATs were not created by an act of parliament. While they have visited some detention centres, their visitation efforts are limited due to a lack of financial and functional independence. Therefore, it is evident that the government lacks the political will to implement the mandates of the NCAT so that it can perform as prescribed by OPCAT.

3.1 The roles and the effectiveness of the NHRC as an NPM in Nigeria

Section 2(1) of the 2024 Order establishes a specialised department within the NHRC that possesses the authority and mandate of an NPM. This extends the NHRC’s powers to include those of an NPM, as established by an act of Parliament rather than through a letter of reference. The Order 2024 is a significant departure from the 2009 and 2022 NCAT, which were established by a letter of reference.

According to section 3 of the 2024 Order, the NHRC is responsible for regularly inspecting and examining the treatment of individuals deprived of their liberty in places of detention, as outlined in article 4 of the OPCAT. Prior to this, section 6(1)(d) of the NHRC Act 2010, as amended, mandated the NHRC to visit detention facilities. As a result, the NHRC has established an annual prison audit to address human rights issues within the Nigeria Correctional Services.126 It is unclear whether this includes visits to police cells in each police station in Nigeria. However, according to section 3 of the 2024 Order, the specialised department will need to fulfil its mandate of visitation as specified in article 4 of the OPCAT. This mandate includes police cells and other holding facilities where individuals are not free to leave at will under the authority of the law.127

Moreover, section 5(b) of the NHRC Act 2010 directs that the NHRC must be able to monitor and investigate any alleged human rights violation cases in Nigeria and is also obligated to recommend appropriate actions for prosecution to the President.128 This suggests that the NHRC already has access to detention centres and holds monitoring and investigation powers. Furthermore, section 3(b) of the 2024 Order grants the NHRC’s specialised department the ability to obtain information regarding the treatment of individuals deprived of their liberty, as well as the conditions within the detention centres.

Section 6 of the NHRC Act 2010 includes further details of the mandate of the NHRC by stipulating that it should have the power to investigate and inquire,129 introduce civil actions,130 appoint interpreters,131 decide on compensation or damages to be awarded to victims of human rights abuse,132 summon and interrogate,133 issue warrants and compel any person or authority to appear before it,134 enter any property to obtain evidence of a violation of human rights,135 and visit places of detentions or cells.136 Though the NHRC has broad mandates, the specialised department, as outlined in section 3(c) of the 2024 Order, allows the NHRC to conduct private interviews with individuals deprived of their liberties, without the presence of witnesses or state authority. When a translator is required, one must be provided, in accordance with article 20(d) of the OPCAT. The purpose of conducting these interviews in private is to enable the detainee to speak freely and openly without fear of reprisals.

The NHRC must also cooperate, liaise, and participate with other local and international organisations.137 The NHRC must also collect data, disseminate information,138 publish information,139 promote public discussion of human rights,140 receive and investigate complaints,141 examine existing legislation or any proposed Bills,142 undertake research or coordinate any education programme to advance the promotion of human rights in Nigeria,143 and act as a conciliator when appropriate,144 referring human rights violation to the Attorney General,145 and, when appropriate, can seek leave of the court to hear matters on human rights violations.146 Additionally, in section 3(d)(ii) of the 2024 Order, the specialised department is tasked with recommending improvements to the conditions of individuals deprived of their liberty.

Section 5(c) extends the mandate of the NHRC to assist the victims of human rights violations in seeking redress and remedies. The NHRC in 2020 and 2021 acted as part of the independent investigation panel on human rights violations by the defunct Special Anti-Robbery and other units of the NPF.147 The panel hears matters of police brutality and awards compensation to victims. In Decision 2020/IIP-SARS/ABJ/15, the panel awarded the sum of five million naira to the petitioner, who was a victim of police brutality.148

In sections 5(d) and (e), the NHRC is mandated to conduct research on human rights, and serves as a policy adviser to the Federal Government, states and local governments, especially when formulating laws for human rights protection and promotion in Nigeria. It further states that the NHRC may publish reports and then submit them to the President, National Assembly, judiciary, and state and local government regarding issues of human rights protection and promotion in Nigeria.

NHRC was assigned the task of preparing Nigeria’s National Plan of Action for the Promotion and Protection of Human Rights.149 The Action Plan was conceived as a result of a Declaration of the 1993 World Human Rights Conference in Vienna,150 by which each state government was tasked with developing an action plan that showed various steps to be taken in order to improve the protection and promotion of human rights.151 The Action Plan was initiated in 2000 in consultation with NGOs and the National Assembly.152 The NHRC presented the final draft document to the government in 2004 for approval.153

The Action Plan is divided into five categories.154 These are civil and political rights; the right to development; rights of person with disabilities; women’s, children’s and youth’s rights; peace and a protected environment, and economic, social and cultural rights.155 The Plan outlines the government’s responsibilities, the strategies it must employ to address human rights issues, and the agencies responsible for implementing and monitoring the programme.156

Section 5(f) of the NHRC has the mandate to create public awareness by organising local and international seminars and conferences on human rights issues in Nigeria. This awareness includes meeting with civil society organisations, schools, correctional centres, and social media. In 2021, as part of the awareness mandate, the NHRC issued a press release in 2019 to affirm that freedom from torture was a non-derogable right in Nigeria.157 In July 2021, the NHRC with the NCAT trained 190 police officers under the Anti-Torture Act of 2017 and other legislation that prohibits the use of torture in Nigeria.158

In conclusion, the mandates of the NHRC include the ability to visit places where liberties are deprived, conduct private interviews, and access information related to individuals who are deprived of their liberties. However, one might question why other factors, such as research and the right to contact the Subcommittee on Prevention of Torture, are not included in the 2024 Order. Nevertheless, a careful reading of the NHRC’s broad mandates suggests that it indeed has the authority to conduct research and collaborate with other bodies. Therefore, the question remains whether the NHRC can operate as outlined in articles 18 to 21 of OPCAT.

3.2 NHRC‘s functional independence

Article 18(1) of OPCAT requires the state to guarantee the NPM’s functional independence.159 However, the meaning of functional independence was not defined in article 18. As outlined in the Practical Guide of the Office of the High Commissioner, functional independence implies a legislative mandate, operational independence, and financial independence.160 Legislative mandates include the establishment of an NPM by an act of parliament or in the state constitution.161 The statutory document would probably include such information as visiting rights, access to information, communications with the SPT, independent experts, work stations, terms of office, and an election or appointment system for NPM members.162

During the military regime of General Sani Abacha, the NHRC was established under Decree 22 of 1995.163 This period was characterised by human rights violations, unlawful detentions and the use of force by various security agencies.164 It was not the intention of the military regime to create a human rights institution that would address the needs of the people.165 Instead, it was a political uproar that led to the establishment of the National Human Rights Commission.166 The NHRC did not have legitimacy and credibility under the military regime, even though it was established by a decree making it notionally independent.167

The Amended Act 2010 gives the NHRC functional independence. This is because it specifies that it is established as a corporation with perpetual succession and a common seal, and which can sue and be sued.168 Section 1 buttresses Newark’s assertion that the NPMs must be independent bodies free from government interference or control.169 Additionally, the 2024 Order in section 2(2)(a) and (b) states that the specialised department shall have operational independence to perform its duties. This operational independence also entails the appropriate allocation of resources necessary for it to carry out its functions, projects, and programs.

Article 18(3) of OPCAT and the Paris Principle conclude that a state member must provide all the necessary resources for an NPM to function efficiently.170 These resources include a number of office locations, personnel, financial resources, and most importantly, accessibility to the nation’s citizens. The NHRC established one office per state to reach people at the grassroots.171 According to the NHRC, it would have preferred to have had offices in all local government jurisdictions; however, due to resource limitations, state offices had to suffice.172

3.3 NHRC‘s independence of personnel

The NHRC consists of 16 members as a council173 made up of a retired judge of the Supreme Court, a representative from the Federal Ministry of Justice, Foreign and Internal Affairs, human rights organisations, media practitioners, legal practitioners and three others with a variety of interests and a secretary.174

Upon the Attorney General of the Federation’s recommendation and confirmation from the Senate, the President of the Republic of Nigeria appoints the members of the Council175 who serve for a term of four years,176 which may be renewed.177 Except for the chairman and secretary-general, each member of the council works part-time and the council meets once a month for three days.178 NHRC Council members may be removed by consultation with the National Assembly under section 4(1) of the 2010 Amended Act if the President determines that it is not in the public interest for members to continue in their positions.179 Specifically, the 2010 amended act stipulated that a member of the council may be removed by the President on confirmation of a simple majority of the Senate.180 Members may only be removed by the President if they are incompetent, bankrupt, convicted of a felony, or otherwise behave improperly.181

In terms of section 7 of the NHRC amended Act 2010, the President appoints the executive secretary to the Commission with approval from the Senate.182 The executive secretary acts as the chief executive officer and the accountant general of the commission - a legal practitioner with over 20 years of post-qualification experience in human rights cases?183 The executive secretary is appointed for five years and can be re-appointed for a second term based on the Attorney General’s recommendations.184 He or she is in charge of the day-to-day running of the Commission.185

Prior to the NHRC amended Act 2010, the United Nations Special Representative of the Secretary-General, a human rights defender, visited Nigeria and raised the issue of the independence of the NHRC.186 Although it is based on a legal document, it cannot be said to be independent.187 This was apparent in various events in 2006. Bukhara Bello, the then executive secretary as a member of the NHRC Council, was removed from office by the then Minister of Justice on the allegation of criticising the national security agencies for the constant harassment and intimidation of journalists in the country.188 In 2009, the executive secretary Behind Ajani was removed from office by letter from the then Attorney General of the Federation.189

Section 8 gives the NHRC the power to appoint anybody it deems fits and to transfer members of staff from the public service of the Federation with the required skills to help and assist the NHRC.190 The NHRC may determine an employee’s remuneration, and has the power to pay such employees.191 The NHRC has the power to regulate the conditions of staff promotion, salaries, dismissals, appointments, pensions, and gratuities. The pension must be in accordance with the Pensions Act.192

Section 18 of the NHRC 2010 restricts the arrest or institution of a civil claim against the executive secretary or any of the staff while discharging their duties.193 However, for a civil claim to be instituted on other grounds against the members of the NHRC, it must be commenced within three months after the act, and in the case of damage or injury, it must be within six months.194 This is in accordance with the Public Offices Protection Act, which seeks to protect public officers in the course of their official duties.195

3.4 NHRC‘s financial independence

The NHRC maintains a fund for its day-to-day running allocated from the Consolidated Revenue Fund of the Federation.196 The funds emanate from the Federal Government, which pays and credits the NHRC.197 The House of Representatives committee on Human Rights oversees the financial management of the NHRC.198

Chief Tony Ojukwu, executive secretary of the National Human Rights Commission, addressed the chairman and members of the House of Representatives Human Rights Committee to actualise the human rights fund Bill.199 The Bill established the NHRC human rights fund in the annual budget of the Federal Government.200 According to Chief Tony Ojukwu, the Bill’s signing enabled the NHRC to better fulfil its mandates and increase its reputation as an independent body.201 In addition, it addressed the issue of inadequate funding, which had hindered the NHRC since its inception in 1995.202

The NHRC also has the liberty to receive gifts, lands, and funds from individuals or philanthropists; however, the gift must not be inconsistent with or prevent the NHRC from its mandate or delivering its functions.203 The NHRC’s independence is further strengthened by being able to borrow from any sources in order to meet its mandates., It can invest any surplus, subject to the requirement of the Trustee Investments Act or any other securities Act in Nigeria.204

Section 15 establishes the Human Rights Fund, which enables the NHRC to research any human rights issues and facilitate meetings with other non-governmental organisations, civil society, or other relevant stakeholders.205 The federal state and local governments and national and multinational companies are able to contribute to this fund on a tax-deductible basis.206

The NHRC is obliged to submit an annual estimate of its expenditure and income to the Federal Executive Council before 30 September of every year for an audit conducted by an auditor from the list issued by the Auditor-General of the Federation.207 Once the account has been audited, the NHRC is obliged to submit a report showing the activities of the NHRC during the previous year to the National Assembly and the President.208

3.5 Cooperation with the SPT

The NPMs must have adequate cooperation with the SPT In April 2014, the SPT visited Nigeria to discuss the establishment of an independent NPM.209 The discussion assured the SPTs that the Nigerian Government would establish an NPM. During the visit, the NHRC was also met by the SPT, which advised the NHRC on the steps needed for Nigeria to comply with its requirements under OPCAT.210 The NHRC has since then published no communication with the SPTs and it would seem that the NHRC did not directly communicate with the SPT. However, with the newly established specialised department in Order 2024, it can be argued that it will communicate more effectively with the SPT.

In the 72nd section of the United Nations Committee against Torture, the NHRC submitted an individual report on implementing the UNCAT and OPCAT in Nigeria.211 In the report, the NHRC was held to have demonstrated adequate cooperation with the country’s civil society organisations and other relevant stakeholders.212 From 2006 to 2008, the NHRC partnered the Network of Police Reform in Nigeria (NOPRIN) to carry out hearings on extrajudicial killings by the police. From 2016 to 2017, the NHRC collaborated with the Nigeria Bar Association and civil society organisations in the public hearings on police brutality by the Special Anti-Robbery Squad.213

The NHRC cooperates with different civil society organisations, but it does not enjoy that cooperation with the SPT. If the NHRC were to approach the SPT in terms of article 20(f) of OPCAT for information and a meeting, it is argued that SPT would provide them with what they need to perform its mandate.

The cooperation with civil society organisations has probably not included visitations to police cells but has rather focused on awareness creation. Although the Prisoner’s Rehabilitation and Welfare Action (PRAWA)214 constantly visits prisons, there is a lack of adequate visits to police cells by the NHRC.

In conclusion, the NHRC is arguably the best model for the Nigerian NPM, as it already has an established structure and has been investigating human rights. The NHRC was established by an Act of Parliament that outlines its funding, staff appointments, operations, and mandate. Furthermore, the creation of a specialised department via Order 2024 for the NPM indicates an expansion of the NHRC’s mandate to include the prevention of torture and dialogue, which are the main focuses of the OPCAT. It represents a significant shift for the NHRC, as its focus has primarily been on addressing complaints that require investigation rather than prevention of torture.

4.1 Possible challenges and recommendations

The primary purpose of OPCAT is to prevent torture and other forms of ill-treatment. State parties are obligated to establish an effective NPM that can help prevent torture. However, the concept of torture prevention requires a multidimensional approach, which extends beyond merely visiting detention centres, and brings into play the political, social, legal, and judicial contexts in Nigeria.

The inaugural NCAT in 2009 and the subsequent one in 2022 did not meet the qualifications of an NPM as required by OPCAT. However, with the designation of the NHRC as an NPM through Order 2024, the Nigerian government has incorporated these mandates into an Act of Parliament. This designation ensures that the specialised department can visit places of detention. Nevertheless, challenges may arise in implementing this framework, particularly in respect of political will. One of the major issues faced by the previous two NCATs was, indeed, the lack of political commitment from the government.

An independent NPM requires unrestricted access to locations where individuals may be deprived of their liberties. To effectively carry out its mandate, the NPM must have the ability to choose freely when and where to make visits, including conducting inspections at night without prior announcement. This means that the specialised department should be able to visit various facilities such as correctional services, police cells, immigration holding facilities, Economic and Financial Crimes Commission holding cells, civil defence centres, and military detention facilities without any prior notice.

This unannounced access aims to ensure that the NPM can assess the conditions faced by individuals deprived of their liberties. According to the Nigeria Correctional Service website, there are 253 custodial centres in Nigeria.232 A critical question arises: Can the specialised department visit all these facilities without prior notice? For such access to be possible, there must be political will, which includes the Federal Government, through the Ministry of Interior, granting the specialised department unlimited access to all relevant facilities.

To effectively implement the mandate for the specialised department on visitations, it is essential to gather staff with diverse expertise. This team should not only consist of lawyers but also include professional doctors, nurses, social workers, investigators, child specialists, psychologists, and editorial staff. The SPT has emphasised this need, stating that prevention requires a comprehensive examination of rights and conditions from the moment of deprivation of liberty until the point of release.233

One of the major factors that limited the 2009 NCAT in carrying out its mandate was a lack of funding. Section 2(2)(b) of Order 2024 states that the NHRC shall allocate appropriate resources to the specialised department according to applicable guidelines, enabling it to conduct its activities. However, the question remains: What are the applicable guidelines? It is suggested that the allocation of resources may need to adhere either to the NHRC Act of 2010 or through another framework. The NHRC maintains a fund for its day-to-day running allocated from the Consolidated Revenue Fund of the Federation.234 The funds emanate from the Federal Government, which pays and credits the NHRC.235 For the specialised department to perform effectively, it is crucial that the allocation of resources is not curtailed and is in accordance with an Act of Parliament. This approach will allow the department to budget appropriately and fulfil its mandates.