Human Rights Committee examines Niger's efforts to implement civil and political rights

Human Rights Committee

7 March 2019

The Human Rights Committee today concluded its consideration of the second periodic report of Niger on measures taken to implement the obligations under the International Covenant on Civil and Political Rights.

Marou Amadou, Minister of Justice of Niger, introduced the report, which covered the period from 1993 to 2004, and during which many advances in the implementation of the Covenant had occurred.  Facing a situation of insecurity on almost all its borders since 2015, Niger had introduced exceptional measures, such as a state of emergency all the while guaranteeing the respect for non-derogable rights enshrined in the international instruments, and had passed the law at the end of 2018 to incite those terrorist fighters who had not committed grave crimes to lay down their arms.  Niger participated in the G5 Sahel Joint Force, which enabled the countries of the sub-region to pool their forces in the fight against terrorism.  The process of abolishing the death penalty had just been re-launched for the third time, said Mr. Amadou, however, since the punishment had not been applied since 1976, Niger was a de facto abolitionist country.  The National Council for Political Dialogue was reviewing the electoral code to address the shortcomings identified during the 2015 elections, and efforts were being made ​​to combating gender-based violence and harmful traditional practices, for example through the 2015 Illimin initiative which aimed to reduce the rate of child marriage and delay childbearing.  Despite the advances, many challenges remained for the effective enjoyment of all civil and political rights, in particular the security challenge born out of the country’s proximity to Mali, Libya, and Nigeria, concluded the Minister.

Committee Experts recognized that the numerous challenges seriously obstructed the protection and enjoyment of human rights in Niger, such as the challenge of development, democratization, terrorism, and migrations.  Customary law, which most people seemed to prefer, often contained discriminatory provisions, therefore Niger should improve the Civil Code to address the disparities.  The Experts deplored the impunity the security forces seemed to enjoy for human rights violations committed during the bloody repression of the Tuareg rebellion in the early 1990s, and the denial of the right of victims to compensation.  While amnesty could indeed be seen as a way out of conflict, the issue of reparations for victims was crucial, they stressed.  They expressed concern about insufficient security measures taken to protect the population victimized by Boko Haram in the Lake Chad region, and the fact that a state of emergency in Diffa, Tahoua and Tillabéri had effectively put those areas under a siege, with no end in sight.  The Experts were further concerned about a blurred definition of terrorism in the Penal Code, the continued presence of the death penalty on the books, and systemic corruption that seemed to involve all levels of society, from Ministers to the low-ranking police to judiciary officials.  Slavery and slavery-like practices were discussed at length, with an estimated figure of 800,000 slaves causing a deep concern.  In this context, Experts raised the question of the practice of wahaya, of the fifth wife, worst forms of child labour including forced begging, and the participation of former slaves and their descendants in political and economic life.

In his concluding observations, Mr. Amadou said that, as a Minister in the Government of Niger, his role was to give the answers from the point of view of his administration, and added that the Committee was certainly well aware of the exaggerations of some journalists and some non-governmental organizations.

Ahmed Amin Fathalla, Committee Chairperson, in his concluding remarks, hoped that by the next review, Niger would have passed a number of reforms including on the quotas for women, the funds for future generations, and the amendments of the civil and criminal codes.  Although Parliament had not been able to adopt a number of texts that were contrary to custom, it needed to shoulder the responsibility to promulgate the required legislation and fulfil the responsibilities under the Covenant.

The delegation of Niger consisted of the representatives of the Ministry of Justice, the Inter-Ministerial Committee for the redaction of reports to treaty bodies and to the Universal Periodic Review, Office of the Prime Minister, a Member of Parliament, and the representatives of the Permanent Mission of Niger to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of Niger at the end of its one hundred and twenty-fifth session on 29 March.  Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage .

The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/ .

The Committee will next meet in public at 3p.m. today, 7 March, to consider the second periodic report of Angola (CCPR/C/AGO/2 ).

Report

The Committee is considering the second periodic report of Niger (CCPR/C/NER/2 ).

Presentation of the Report

MAROU AMADOU, Minister of Justice of Niger, introducing the report said that it covered the period 1993-2014 during which many advances had occurred in the implementation of the International Covenant on Civil and Political Rights.  The drafting of the report was a result of a participatory and inclusive process that involved, among others, the National Human Rights Commission and civil society organizations.  The law in Niger, he continued, required the transparent management of natural resources which took into account the protection of the environment and the cultural heritage, and the preservation of the interests of present and future generations.  Niger was a member of the Extractive Industries Transparency Initiative, which required the publication of any signed mining convention; Niger’s participation in the Initiative had been suspended for a short period of time, the Minister said, noting that several weeks ago, Niger had reinstated its participation, having accepted the 23 proposed measures.  According to the mining code, 85 per cent of the natural resource extraction revenues went back to the national budget, and the rest to the local communities concerned.

Since 2015, the Minister recalled, Niger was facing a situation of insecurity on almost all its borders, which forced the country to introduce exceptional measures, including a state of emergency, but which in any way do not infringe upon the non-derogable rights enshrined in the international instruments.  At the end of 2018, Niger had passed the law, to “incite terrorist combatants to lay down the arms” while creating a compensation fund for victims.  The combatants were not prosecuted provided they had not committed war crimes, crimes against humanity, or genocide.  At the same time, Niger was participating in the G5 Sahel regional force, which enabled the countries of the sub-region to pool their forces in the fight against terrorism.  The process of abolishing the death penalty had just been re-launched for the third time, said Mr. Amadou, adding that the death penalty had not been applied since 1976, which made Niger a de facto abolitionist country.  In addition, all death sentences had been commuted to life imprisonment.

Fundamental freedoms were a reality in Niger, he continued, adding that there were more than 450 human rights associations and 113 political parties active in the country.  The National Council for Political Dialogue was currently reviewing the electoral code to address the shortcomings identified during the March 2015 elections.  To strengthen the participation of women in political life, the Head of State had asked the Government to think about the upward revision of the quota for both elective and appointed positions.  The National Agency for Combating Trafficking in Persons and the Smuggling of Migrants regularly conducted training and awareness-raising actions, which made it possible to record progress in the fight against this crime, the Minister noted.  Efforts had also been made in the area of ​​combating gender-based violence and harmful traditional practices, such as the 2015 Illimin initiative which aimed to reduce the rate of child marriage and delay childbearing.

The National Agency for Legal and Judicial Assistance, established in 2011, opened local offices in the ten high courts, and community service has been established to promote the reintegration of offenders.  To improve prison conditions, 19 correctional institutions, 28 minors’ quarters and infirmaries were built or rehabilitated in order to comply with international standards.  The Minister acknowledged that despite these advances, many challenges remained for the effective enjoyment of all civil and political rights in Niger.  He mentioned in particular the security challenge born of the country’s proximity to Mali, Libya, and Nigeria, and the related which was at the origin of the important population movement involving migrants, refugees, returnees, and internally displaced persons.

Questions by the Committee Experts

Opening the discussion, Committee Experts recognized the numerous challenges Niger was facing which seriously obstructed the protection and enjoyment of human rights, and specifically mentioned the challenge of sustainable development, the challenge of democratization, the challenge of terrorism, which greatly complicated the respect for human rights, and finally, the challenge of migrations.  The Experts recognized that Niger was among the few countries in the region which had signed the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention).

They asked the delegation to inform on the application of the Covenant in the country, particularly at the level of the courts, and whether derogation of rights under the Covenant was specifically prohibited. 

Most people seemed to prefer customary law, which often contained discriminatory provisions, Experts remarked, asking whether Niger considered improving the Civil Code or introducing a Family Code in order to address the disparities between the customary law, and domestic and international laws?  Would it raise the legal age of marriage to 18 for both girls and boys and how would it ensure that the spouses could freely choose whether to marry under civil law regime or the customary regime?

The National Commission for Human Rights could operate on behalf of victims of slavery, Experts noted, asking for an explanation what it meant in practice and whether the current budgetary allocations to the Commission were sufficient to enable it to fulfil its mandate.  They remarked that of the nine members of the Commission, only one was women.

Corruption was systemic and involved all levels of society, from Ministers to low level police and judiciary officials, Experts said, expressing concern about its devastating impact on the country’s development.  Was it true that $200 million had disappeared from the public treasury in 2014?

The compliance with the legislation on environmental protection, especially in case of uranium mines, seemed to be weak.  What measures did Niger take to strengthen the environmental legislation to adequately protect the interest of future generations, to improve the implementation of transparent management of mine resources since, and to rehabilitate mining areas?  Could the delegation explain the reasons for withdrawal from the Extractive Industries Transparency Initiative?

Committee Experts deplored the impunity the security forces seemed to enjoy for human rights violations and the thousands of people being killed during the bloody repression of the Tuareg rebellion in the early 1990s, and the denial of the right of victims to compensation.  While amnesty could indeed be seen as a way out of conflict, the issue of reparations for victims was crucial, they stressed.

Niger, the Experts continued, did not appear to have taken sufficient security measures to protect the population victimized by the Boko Haram movement in the Lake Chad region.  The Experts raised concern that the state of emergency declared in Diffa, Tahoua and Tillabéri had put those areas effectively under the siege, which did not seem to be coming to an end soon.  The delegation was asked to outline the efforts to guarantee the enjoyment of all rights under the covenant, with Experts reminding of the obligation related to non-derogable rights.

A blurred definition of terrorism in the Penal Code was a point of concern, for it allowed a disruption of public services to be labelled as a terrorist act, which could be understood as an infringement of the right to protest.  Would Niger revisit the Penal Code and the Code of Criminal Procedure in order to bring them into conformity with the provisions of the Covenant, they wondered, asking the delegation to provide data on the number of prohibited demonstrations and the reasons for those decisions.  What steps was the State party taking to ensure that its officials did not use torture in terrorism-related investigations and processes, and what training did law enforcement officers receive on fundamental principles of the maintenance of public order, especially concerning proportionality?

Turning to press freedoms, the Committee wondered whether the closure of the media was within the competence of the executive branch or it was the prerogative of the High Council for Communication, and in this context cited the case of journalists arrested at the end of a televised debate, and the case of another journalist who had been detained for a year before being finally expelled from the country and his nationality withdrawn.  Niger’s ranking on the World Press Freedom Index by the Reporters Without Borders was steadily declining, they commented.

Commenting on the claim in the State party’s report that all human rights violations could be verified, the Experts asked the delegation to inform on the cases brought to the attention of the authorities over the past five years, including on resulting investigations and prosecutions.

Niger continued to maintain the death penalty, Experts remarked, asking why Niger was optimistic that Parliamentary discussion on the abolishment of death penalty would be successful this time?

Women wore the brunt of harassment and violence, as well as slavery, Experts noted with alarm, inquiring about the main areas of action contained of the National Strategy on violence against women, including in matters of marital rape, and about capacity-building efforts on violence against women for lawyers, judges, and prosecutors.  Were shelters for victims available?

Niger had stated in its report that domestic legislation provided sufficient protection from discrimination, Experts noted, asking the delegation to explain such a position, and to inform on the intentions to adopt a comprehensive anti-discrimination law that would prohibit all forms of discrimination.

The practice of wahaya, of the fifth wife, which represented a form of slavery and sexual exploitation, seemed widespread – what was being done to protect women and girls from this practice and compensate the victims?

The delegation was asked to inform on access to health care for pregnant women throughout the country, measures to increase access to contraception and family planning services and products, and whether Niger intended to legalize abortion in cases of rape, incest, fetal malformation, or risk to the life of the mother.  In 2017 and 2018, two women had been prosecuted and sentenced for abortion, Experts remarked, asking about estimates on clandestine abortion and whether women were being prosecuted.

Replies by the Delegation

Responding to the questions raised on the primacy of customary law, the delegation explained that its application was limited to those areas where its provisions did not run counter to civil law and international treaties.  While the prevalence of custom was a reality, it was not a question of law, and it was incorrect to say that customary law prevailed over the civil laws.  There was rather a duality of norms, and it was important not to confuse custom and religion. 

Niger intended to amend its Civil Code, hopefully later in the year, and raise the legal age of marriage for girls from 15 to 18.

The Government proposed the re-opening of Parliamentary debate on the abolition of the death penalty, after two first unsuccessful attempts.  All death sentences were commuted to life by Presidential decision.  Therefore, Niger considered it unnecessary to maintain in the arsenal of the law a sanction that was never and would never be applied.

The delegation insisted on the critical need to account for socio-cultural factors and resistance to change.  The most revolutionary reforms the Government proposed were frequently rejected by Parliament, therefore the preferred approach was to change mentalities and attitudes through education and awareness raising.  Passing the laws alone was not enough to solve a problem, stressed the delegation.  The religion played a strong role in the society, which meant that the population was not ready to accept the abolition of the death penalty for example, or the reform of the civil code.  The delegation felt that forcing issues in a fragile context was not an appropriate approach. 

As a result of the overhaul, the judicial system now conformed to the Covenant, which the judges were familiar with and took it into account in their decisions.  For example, the court had recently ruled that the lack of women's access to land was unconstitutional and violated the Covenant.

Almost 80 per cent of the people in rural areas were illiterate, said the delegation, stressing that this was why the Government aimed for all the children aged six and above to go to school.  However, free and universal primary education required substantial funds, and international aid was urgently needed to tackle the problem, especially given the fact that the Government was obliged to redirect some of the resources towards security and the fight against Boko Haram, since without security, teachers fled school and judges abandoned the courts.

Niger had A status when it came to Paris Principles in terms of gender balance within the National Commission for Human Rights.  Its members were chosen based on their competence.  The Commission respected the Paris principles and had its headquarters, staff and vehicles, and regional satellite offices.  That was a clear improvement, but additional resources were still being needed.  The law on the national human rights institution had been amended, giving it greater powers, including the power to undertake independent monitoring of places of detention.

When it came to corruption within the high political positions, the delegation noted that the accusations were often done for the purpose of sensationalism.  In Africa, Niger was an exemplary country in the fight against corruption, as Transparency International often noted.  The Head of State for example had been criticized for having bought a new presidential plane, but why would he accept taking a security risk by continuing to use an old aircraft from the 1970s, the delegation remarked.

Turning to questions asked about the exploitation of natural resources, the delegation said that according to the law, 85 per cent of the income went to the Government and 15 per cent to the local community, but this rule was not always respected, the delegation acknowledged.  The fund for future generations would be created in the near future.  Four per cent of the national budget came from uranium exploitation, with two companies working in the field.  Niger and Africa generally faced the problem of fair compensation for the exploitation of its mineral resources.  The African Commission on Human and Peoples' Rights had also passed a resolution calling for fairer compensation.

As per the mining law, companies had the obligation to restore the site to its initial state, however, this obligation was not always complied with.  The communication needed to be improved and civil society organization and international partners were included in the process of conflict resolutions on the local level.

The amnesty law must respect the Covenant and all criminal acts must be tried.  In Niger, amnesty was necessary to restore peace and it had brought a lot of benefits for the country, said the delegate, acknowledging the frustration of victims who did not possibility of bringing criminal proceedings against those who have harmed them, however, amnesty did not prohibit them from seeking redress.  As for the pardon offered to Boko Haram, the delegation stressed that some of its combatants were ignorant and indoctrinated individuals who were actually victims themselves; the pardon aimed to allow those who had no blood on their hands to return to civilian life and so disrupt the insurgent organization by drying up the pool from which it drew its ranks.

The delegation insisted that not everything that civil society organizations said to the Committee was true and went on to deny the information that that the authorities failed to provide protection to populations in the Lake Chad region from Boko Haram.  The local population had been encouraged to move to safe areas and there was no question of forced displacement, the delegation assured.  There were more than 300,000 refugees and as many internally displaced people in the country, and Niger should be commended for the assistance and protection provided to them, especially as the rich countries did not do the same. 

Non-governmental organizations and as a range of international organizations supported the Government in assisting the refugees, but the effective response was constrained by lack of resources.  Fighting poverty and addressing the needs of refugees at the same time would strain many wealthy countries too, remarked a delegate.

The state of emergency had been imposed in Diffa, Tahoua and Tillaberi areas and included a curfew on traffic circulation from 6 p.m. to 6 a.m. because the terrorists used motorbikes to attack the military.  All rights under the Covenant were respected, as everywhere else in the country.  The definition of terrorism in the law was in line with international standards and there were no intentions to amend it.

Most of the cases of wahaya, of the fifth wife, were connected to community leaders, who had been warned that continuing the practice would carry sanctions, including imprisonment. 

Niger never thought that it needed a specific anti-discrimination law and is needed, the matter would be brought to Parliament’s attention.  There were prosecutions and sentences for discrimination, the delegate continued, and the courts, the National Commission for Human Rights, and numerous non-governmental organizations were dealing with the matter of discrimination.

The delegation agreed that 15 per cent women representation was insufficient and said that some initial proposals had been made to increase the quotas to 20 per cent for elected posts and 30 per cent for appointments.  The Social Code could not be adopted due to aforementioned sociocultural environment in Niger.

Abortion remained criminalized except when pregnancy endangered the life and health of the mother or in case of fetal malformation incompatible with life.  Popular opinion held that fetus was a living being, with heart beats, and therefore termination was considered to be criminal.

With regard to freedom of expression and demonstration, the delegation stressed that everyone who violated the Criminal Code was prosecuted, including political opposition and human rights defenders.  The enjoyment of freedoms implied that everyone expressed themselves in a manner respectful of law and order.  However, if public order was disturbed, the culprits were subject to criminal sanctions, as was currently the case for some "yellow vests" in France, for example.  The delegation stressed that people in nagger enjoyed a “beautiful democracy under construction”.  And it was not enough to simply identify oneself clearly as an opposition or a human rights defenders in order to be excused from respecting law and order, the delegation stressed.  All press offenses had been decriminalized, which meant that a journalist could not be prosecuted in the performance of his duties under freedom of expression, and since 2011, in fact, no one had been prosecuted for expressing their opinion.

Gender-based violence affected all categories of the population.  The national strategy aimed to cut the prevalence rates in half, primarily by raising awareness.  Its cost had been set at 4.2 billion CFA francs, which would involve a contribution from Niger's partners.

Women and people in the rural areas were among the groups worst affected by poverty.  The Government had put in place a range of programmes to improve the situation, as it aimed to strengthen its food production capacity and end hunger by 2030.  The plan of action to this end focuses on integrated and sustainable management of natural resources.

Niger allocated six per cent of the national budget to the health sector, and this clearly was not enough.  Still, substantial efforts were being taken to improve the conditions in health sector and the quality of services, especially mother and child health services and reproductive health.

Questions by the Committee Experts

In the next round of questions, the Experts asked about the status of the draft bill on torture and whether it was in line with the Convention against Torture, and the measures in place to ensure that evidence obtained under torture was not being used in the prosecution.

The delegation was requested to comment on reports of threats, physical abuse, and imprisonment of journalists, and to explain whether certain media outlets had been closed due to hate speech or incitement to violence.  The Experts wondered whether the closure, which had been done by the executive and not the Higher Council for Communication, which had the competence, represented in fact an abuse of power?

According to international observers, the last elections were generally acceptable, the Experts said, however, a new electoral code adopted by the National Council for Political Dialogue at the beginning of the year, had been rejected by the opposition parties, which described the process as a "farce".  Was Niger considering adopting a general law on access to information for the population and taking measures to guarantee the right of people to participate in the management of natural resources and decision-making processes for investment projects with social and environmental impact, particularly in terms of pollution?

The Committee placed great importance on the implementation of legislation against discrimination, Experts said, asking about the state of implementation of the law aimed at decreasing discrimination against people living with HIV/AIDS and whether the qualification of same sex activities as “abnormal” in the Criminal Code would be removed.  Could the delegation comment on discrimination of former slaves and their descendants, particularly in terms of their access to political life and employment in administrative positions.

Expert cited several examples of deaths of migrants attempting to travel to Europe, including 44 migrants found dead in the desert in May 2017, and questioned the attitude of the Defense and Security Forces officers who robed migrants at checkpoints, prompting them to take backroads that could result in loss of life.  Considering that the authorities claimed to have adopted a zero tolerance policy to the corruption of members of the Defense and Security Forces, in particularly at border crossings, what action had been taken to address this issue, including by prosecuting the offenders and granting reparations to victims?

The Special Rapporteur on contemporary forms of slavery had estimated in 2015 that one of the most common forms of child labour in Niger was forced begging, among the worst forms of labour exploitation of children, however, no one had yet been found guilty of committing this offense.  What was being done to protect the children against worst forms of child labour and slavery?  What steps had been taken to prohibit corporal punishment in all settings, including at home and public and Koranic schools, and how many prosecutions had been brought against perpetrators of violence against children?

Slavery was criminalized and victims had been compensated to the tune of 100 million Swiss francs, Experts remarked, stressing that an estimated 800,000 slaves in Niger caused deep concern.  Wahaya continued to be practiced and there had been only two prosecutions for slavery.  What measures were in place to effectively end slavery and to improve access to education and labour market for former slaves and their descendants? How was slavery defined and differentiated from forced labour and trafficking in persons? 

Committee Experts then referred to irregularities in police custody, including lack of information on the reason of detention, mistreatment while awaiting trial, and prolonged pre-trial detention.  It seemed that 6, 022 people – or 60 per cent of detainees - were currently awaiting trial, which was a clear sign of dysfunctionality of judicial system. 
The Experts raised the question of the independence of the judiciary, considering that magistrates of the seat and the public prosecutor were appointed by the Head of the State.

The Constitution provided for the protection of ethnic minorities, remarked the Experts, asking about additional measures taken to improve the rights of pastoral and nomadic population.

Replies by the Delegation

Responding to comments and questions related to torture, the delegation denied that it was commonly practiced in the country.  A human rights education manual for the police, the National Guard, and the military covered both International Covenants and all international treaties.  There were cases of prosecution against police officers and military personnel for torture and many resulted in prison sentences.  A bill on torture had been presented to Parliament and there was a very good chance it would be adopted in 2019.  One measure that prevented the use of torture to obtain evidence was the right to a lawyer for all individuals as soon as they entered a place of detention.

All crimes against journalists and the media were investigated.  There had been no prosecution for slander and fake news since 2010, which had resulted in the lack of professionalism of newspapers, so the authorities had to react in some instances.  As for the closure of the medial outlet, should the judiciary find a wrongdoing in the actions of the Government, those would be re-opened.  Demonstrations were permitted and regularly organized and permitted.  They used to take place from 4 p.m. until midnight, but poorly lit streets in the country made them unsafe.  Those who continued to demonstrate at night were arrested and fined. 

On the independence of the judiciary, the delegation stressed that democracy in Niger was in a process of construction and that necessary reforms were being taken to improve the judicial system.  Prosecutors were not an extended hand of the President but the Ministry of Justice, they said, adding that there was a special hotline for judicial corruption and abuse.

The 2015 elections had been held in a proper and democratic fashion, said the delegation, explaining that the 2016 electoral code had been prepared with the cooperation of all relevant parties, including opposition parties.  It was true that there were certain points that did not reach mutual agreement, but it was for objective reasons.

Environmental impact assessments were carried out for every individual extractive project, with the involvement of the affected population.  Compensations were being provided for the damages.  Mines occupied a very small space in the immense territory of the desert and mining projects did not endanger or put at risk pastoralist and nomadic populations and their activities.  The mining law prohibited the use of dangerous materials.

The number of slaves in Niger was not precisely known, the delegation said, explaining that the number of 800,000 the Committee quoted was at least a decade old and was substantially different at the moment.  A decree on the victim compensation had been drafted and would be adopted, however, the delegate warned, it would take substantial effort to implement it.

Concluding Remarks

MAROU AMADOU, Minister of Justice of Niger, in his concluding observations said that Niger understood that the Committee received information through various channels, including civil society organizations, and said that some of the statements made in the dialogue were false while others were correct.  As a Minister in the Government of Niger, his role was to give the answers from the point of view of his administration, stressed Mr. Amadou, reaffirming his conviction that the Committee was certainly well aware of the exaggerations of some journalists and some non-governmental organizations.  Finally, it was important to remember that putting democracies and dictatorships in Africa at the same level would be wrong.

AHMED AMIN FATHALLA, Committee Chairperson, in his concluding remarks, welcomed a very constructive exchange of views and expressed hope that by the next review, Niger would have passed a number of reforms including on the quotas for women, the funds for future generations, and the amendments of the civil and criminal codes.  The Chair remarked that Parliament indeed represented the people and had not been able to adopt a number of texts that were contrary to custom and implement some of the obligations under the Covenant, however it needed to shoulder the responsibility to promulgate the legislation required to live up to the responsibilities under the Covenant, to which the country had become a party to on its own volition. 

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