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Between 1983 and 1999 Nigeria Was Ruled by Military Regimes Adjudicating Human Rights in Transitional Contexts: A Nigerian Case-Study, 1999-2009 Basil Emeka Ugochukwu A Dissertation submitted to the Faculty of Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Graduate Program in Law, Osgoode Hall Law School York University, Toronto, Ontario March 2014 © Basil Emeka Ugochukwu, 2014 Abstract While transitional justice and democracy literature bristles with the expectation that human rights conditions would improve with the progression from the “darkness” of a dictatorship to the “light” of democratic rule, Nigeria’s transition to civil rule in 1999 would seem to provide a sobering contra-reality. Democracy does not seem to have produced a better human rights environment in the post-transition Nigerian context. This dissertation answers the question why the restoration of civil rule in Nigeria has not translated to results in human rights practices that come close to matching the expectations of its citizens and the predictions of transitional justice literature? It investigates, however, only the extent to which human rights violations correlates with the lack of effective judicial protection of those rights between 1999 and 2009. The methodology is mostly interdisciplinary. The discussion is organized around doctrinal legal reasoning and case-law analysis. First analyzed were cases decided prior to 1999 to show the slippery provenance and inadequacy of the current rights-based adjudication standards. Cases decided since 1999 were then evaluated to measure the claim that the judiciary is failing in its duty as guardians of human rights post-transition. To that extent, the dissertation has not limited itself to a single theoretical model. It was found that some of the biggest problems afflicting human rights adjudication in Nigeria are historically defined. A major challenge is the apparent lack of a clear standard for reviewing laws and actions against the constitutional requirement that they be reasonably justifiable in a democratic society. This creates a culture where human ii rights cases are approached on an ad hoc case-by-case basis such that contradictory decisions are possible from cases with similar facts. Dealing with this challenge is not helped by the country’s legal history and the doctrines of the British legal system that a colonial relationship fostered after independence. The current approach is therefore still orientated towards British administrative law principles which did not demand the standard of intense scrutiny required for the effective protection of human rights norms. The dissertation therefore recommends a reformed system of legal education with strong comparative approaches to change this orientation. iii Dedication To the Memory of my father SYLVANUS UWAUIKE UGOCHUKWU Who had very little education himself, yet recognized its capacity to liberate And To the Memory of PA JOB OKORIE NWAJIUBA For an hour of blessings and a classic suit jacket. iv ACKNOWLEDGEMENTS This dissertation benefited from the contributions of several individuals and institutions. My initial gratitude goes to my Supervisor, Professor Obiora Chinedu Okafor who brought a fecund, insightful and generous intellectual enthusiasm to his role. He questioned, stimulated, directed, and sharpened my thoughts around the themes covered in this work in ways I never could have imagined. And he did so always with a ready smile and a good heart even at times (and those times were many!) when I struggled to be motivated. I also would like to thank the other members of my Committee – Professor Bruce Ryder who was there from the beginning and Professor Faisal Bhabha who replaced Professor Craig Scott after the latter won election into the Canadian Parliament. Professor Scott’s early inputs to the research are gratefully acknowledged. My gratitude extends to Mrs. Yemisi Dina, my Osgoode Hall Law School reference Librarian who ensured that the resources I needed to do my work were readily available. I started the doctoral program at a time of significant physical re-structuring at the Law School. The library had been moved to a different location and most of the book collections were in deep, deep storage. Regardless, Mrs. Dina worked ever so hard to provide all the materials I needed. As well, in the course of my program, I had the good fortune of studying under some of Osgoode’s most outstanding scholars. Many thanks to Professors Allan Hutchinson, Shelley Gavigan and Peer Zumbersen for their mentorship and helpful encouragement along the way. v I shared significant portions of this dissertation (while work on it progressed) at a variety of academic forums. I am grateful to the Osgoode administration for sponsoring me to two sessions of the AGORA Doctoral Workshops of the Association of Transnational Law Schools (ATLAS). I had my first experience in the summer of 2010 at the New York University Law School and received very helpful feedback from colleagues and friends, including Tawanda Mutasah, Sujith Xavier, Karen Loevy, Nerit Ferencz, Guy Sinclair, Jose Ramon Canedo, Magda Karagiannakis, Naiara Arriola, Jaclyn Neo, Paula Angulo and Nourit Zimerman. I also attended the 2012 forum at the Bar Ilan University Law School in Tel Aviv. Lisa Kerr, Jonathan Kolieb, Sirus Kashefi, Nicholas Leger-Riopel, Yaniv Rosnai, Orly Stern and Professor Itay Bar-Siman Tov were also very generous with their comments and suggestions. I am grateful as well to peers at Yale Law School for inviting me to participate in their 2012 Doctoral Scholarship Conference and to Radidja Nemar, Yoon Jin Shin, Mohsin Alam, Ryan Thoreson, and Joanna Noronha for warmly receiving and commenting on my presentation. I made many friends at Osgoode whose encouragement and support I needed from time to time to scale the pain threshold. I owe them a great debt of gratitude for being ever so kind and holding me close to their hearts. You know yourselves. However, I must mention past and current fellows at the Osgoode Critical Research Laboratory in Law and Society and fellow doctoral students with whom I shared many stimulating academic engagements especially in the Emerging Scholars and Graduate Work-in-Progress Workshops. This is for you Sujith Xavier, Igor Gontcharov, Colleen Matthews, Sheila Jennings, Ruba Ali Al-Hassani, Vanisha Sukdeo, Marsha Cardogan, Natasha MacLeod, vi Shanthi Senthe, David Hughes, Todne Bryan, Jennifer Leitch, Brent Cook, Irma Spahiu, Elizabeth Kirly, Estair van Wagner, Charis Kamphuis and Patricia Hania. Thanks for your friendship and all the wonderful times together Ifeanyi & Chizo Okorie, Mike Habicher and Michelle Kisluk, Iloh & Nkeiru Nzekwe-Akubuo, Professor Ikechi Mgbeoji, Stella Igwenazor and Martin & Nkem Ezeudu. Sir Jonah Nwajiuba, please accept a heartfelt gratitude for starting me off on a strong footing and Professor Chinedum Nwajiuba for giving me belief. I am indebted to my wife, Nkechi for the sacrifices she had to make and to my kids – Justice, Chimdiya and Chizaram – for making home sweet and rough in equal measure. I thank my mother Cecilia, brothers Joseph, Chikaodi, and Onyekachi and sisters Grace and Chinyere for their prayers. I cannot possibly forget the Canadian people whose taxes meant that I could concentrate on reaching for my dreams. vii Table of Contents Abstract ................................................................................................................ ii Dedication ........................................................................................................... iv Acknowledgements ........................................................................................... v Chapter One Constructing the Democratic Transition and the Human Rights Adjudication Problematique ......................................................................... 1 1.1 Introduction ..................................................................................................................... 1 1.2 Human Rights: Tracking from the Past to the Present ................................................... 7 1.3. On a Jet-Plane: Courts in Transition ............................................................................. 13 1.4. Compulsory or Elective Triangularity? Democracy, Law, and Human Rights ............. 17 1.5. Paradoxes: Failing on the Promises Of Democracy and Human Rights ...................... 24 1.6. The Heart of the Matter: Courts and Human Rights .................................................... 30 1.7. Tower of Babel: The Birth of an Academic Obsession ................................................. 35 1.8. Stalemate: Judicial Review in Action ............................................................................ 38 1.9. The Importance of the Study ...................................................................................... 433 1.9.1. Methodology ................................................................................................................ 47 1.9.2. Scope of Study and Outline .......................................................................................... 49 Chapter Two “Hello, what are you looking for?” Theorizing Human Rights Adjudication in Transitions ..................................................................... 52 2.1. Introduction ................................................................................................................... 52 2.2. First things First: Adjudication as Norm Creation .......................................................
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