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Strategies for adopting National Policy on IDPs and domesticating the African Union Convention for the Protection and Assistance of IDPs in Africa

By Prof. Muhammed Tawfiq Ladan (Ph.D)

Department of Public Law, Faculty of Law, Ahmadu Bello University, Zaria, Kaduna State, Nigeria. Email: [email protected], [email protected] and [email protected]. BLOG SITE: – http://mtladan.blogspot.com/

Being a paper presented at the National Summit On IDPs in Nigeria organised by the Civil Society Legislative Advocacy Centre (CISLAC), Abuja

Internal displacement in Nigeria is a recurring and large-scale phenomenon and has affected most of the country’s 36 states. Africa’s largest populated country has seen many waves of displacement, both small and large scale, caused essentially by conflict, generalized violence, natural disasters and human rights violations.

As at the end of 2014, of the global 38 million forcefully displaced by armed conflicts and generalized violence, Nigeria accounted for at least one million. Between July and October 2012, National Emergency Management Agency (NEMA) estimated in a published report that a total of 7.7 million people were affected by the flood disaster across the federation. Out of the affected population, 2.1 million people were internally displaced (IDPs); 363 persons died and 18,282 people were treated for injuries they sustained during the flooding. As at January 2014, about 165,000 people were displaced by both floods and conflicts in IDP camps in Nigeria.

Having recognized that in Nigeria and elsewhere in the world, IDPs are amongst the most vulnerable populations, the Federal Government of Nigeria signed and approved the ratification of the African Union (Kampala Convention) for the Protection and Assistance of IDPs in Africa. Nigeria formally ratified the convention on 17 April 2012.

It is against this background that this paper seeks to achieve the following objectives: –

To underscore the importance of adopting the revised Draft National Policy on IDPs, 2012 and domesticating the AU Kampala Convention on IDPs in Africa;

To highlight strategies to be considered for adopting the policy and domesticating the Convention as well as their implementation framework in Nigeria;

To further underscore the need for monitoring and evaluation of implementation of both the policy and the legislative instrument domesticating the Kampala Convention in Nigeria;

To conclude with the way forward for Nigeria

Recent trends in Internal Displacement in Nigeria: – 2011-2015

First, increasing violence, which often stems from competition for access to political power and access to resources, as well as failure to address past socio-economic and political imbalances, injustices and inequities across the federation, continues to cause internal displacement in Nigeria.

Second, the role of armed militant/insurgent/criminal groups as new agents in forcing people to flee from their habitual places of residence is also a significant trend, especially in areas where government security forces had little reach or capacity to combat such groups or deploy actual counter-insurgency operations. One of the latest largest waves of internal displacement took place in late December 2011, following a series of attacks by Boko Haram insurgents/armed groups and subsequent clashes with the army, which caused the displacement of about 90,000 people. Since January 2012, thousands of IDPs have reportedly moved and families split up in order for women and children to flee to safer areas outside the troubled north-eastern States of Adamawa, Borno and Yobe.

In February 2015, the displacement tracking matrix of the International Organization for Migration (IOM) identified nearly 1.2 million IDPs living in the North-eastern States of Nigeria. In addition, NEMA registered over 47, 000 IDPs in central part of Nigeria.

Another trend of displacement is the fact of protracted and neglected situations: Many of Nigeria’s IDPs are believed to have been displaced for years due to conflicts, generalized violence and/or natural disaster and continue not to enjoy a number of rights, such as the right to an adequate standard of living. IDPs who return home soon after the event that made them flee their home are sometimes faced with the destruction of property, crops, infrastructure and acute ethnic and/or religious tensions, particularly in central and northern Nigeria. These adverse conditions prolong their situation of hardship, render them unable to access durable solutions following their displacement, and regain the full enjoyment of their rights.

More than two million urban Nigerians, particularly slum-dwellers and other marginalized people have been forcibly evicted from their homes since 2000. Most notable in Lagos, Abuja and Port Harcourt. These government-sanctioned evictions are usually carried out in the name of security and urban renewal programmes. In 2012, tens of thousands of people were forcefully evicted in Abonnema and Makoko slums in Rivers and Lagos States respectively. Further demolitions took place in 2013, mostly because of development programmes.

Finally, progress made in recent years to protect and assist IDPs in Nigeria is encouraging. For example, NEMA in collaboration with relevant stakeholders have reasonably been attending to the needs of the IDPs in terms of camp coordination and camp management with reasonable safety and security measures, provision of food and nutrition, access to basic health, reproductive health, education, water and sanitation services, emergency shelter and non-food items. After the relief phase of displacement, NEMA in collaboration with relevant stakeholders organized programmes for rehabilitation of survivors, reintegration of displaced persons, reconstruction of infrastructure and environmental remediation.

The country ratified the Kampala convention on 17 April 2012 and rewrote the draft policy on IDPs in July 2012 to incorporate the provisions of the Convention. One year on, however, the Federal Government is yet to adopt the policy, and/or enact a domestic law to implement the Convention. The absence of such frameworks as a means of clearly defining roles and responsibilities has, and will continue to, hamper humanitarian and development efforts to mitigate the effects of internal displacement. They are also essential to a holistic approach in supporting IDPs’ search for durable solutions, and in preparing for and preventing future displacement.

Understanding the Framework for National Responsibility to Prevent Internal Displacement, Protect and Assist IDPs through a national policy and implementing legislation for the domestication of the Kampala Convention in Nigeria

National responsibility is fundamental to ensuring an effective approach to internal displacement. The fact that IDPs remain within the borders of their country means that it is their own State that bears primary responsibility for protecting and assisting them and for safeguarding them against forced displacement in the first place. This principle is affirmed in international standards, namely the Guiding Principles on Internal Displacement (1998), the African Union (Kampala) Convention on IDPs (2009), and regularly restated, both by the international community and by individual States. Although there exists broad consensus on the normative principle of national responsibility, realizing it often proves challenging in practice.

For example, governments may lack adequate capacity to address internal displacement, especially if large numbers of people are involved, if they constitute a large percentage of the country’s population, or if the displacement persists for several years.

The State’s exercise of its national responsibility for IDPs, therefore, must be the basis for an effective response to internal displacement. It is not a matter of navigating around the principle of national responsibility but of being guided by that principle and consciously gearing all efforts to achieve an effective response.

The primary role of the State is clear, both recognized in international law and regularly reaffirmed in international statements. Most notable is UN Resolution 46/182 (1991), “Strengthening the Coordination of Humanitarian Assistance,” which remains the normative basis for international humanitarian action:

The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle based on an appeal by the affected country.

Each State has the responsibility primarily to take care of victims of natural disasters and other emergencies occurring on its territory. Hence, the affected State has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory.

Humanitarian organizations are acutely aware of this foundational principle, particularly as it affects their ability to enjoy safe and unimpeded humanitarian access to the populations that they seek to protect and assist. In practice, however, as a recent report observes, “international relief efforts have often been criticized for ignoring, side-lining or actively undermining local capacities,” thereby leading to “tense and even dysfunctional relations between States and international agencies.”

Part of the problem is that humanitarian actors almost automatically regard the core concept of national responsibility for addressing internal displacement often as a constraint. Certainly, there is no shortage of examples around the world today in which state practices pose real barriers-whether political, legal, administrative or operational-to ensuring that IDPs have access to the protection and assistance that they require. However, even in those cases, effective-and perhaps creative-ways need to be found to promote, support and reinforce the exercise of national responsibility for addressing internal displacement, because ultimately that is the only sustainable solution.

Important to note is that the Framework is being applied to and used in all types of internal displacement. The country examples cited above all relate to conflict induced displacement. However, the Framework also is being promoted and used to advocate and guide national responses to internal displacement caused by natural disasters. For example, in the United States of America, lawyers’ groups have drawn upon the Framework to advocate for the protection of persons displaced by Hurricane Katrina. More generally, UN OCHA refers UN Resident Coordinators and Humanitarian Coordinators to the Framework as among the sources of guidance in situations of natural disaster. In addition, the World Bank is among those promoting reference to the Framework in examining responses to displacement in the context of development.

The wide dissemination and use that the Framework (as in table 1 below) has enjoyed by governments and other actors supporting the promotion of IDP rights protection since its publication in 2005 is testament to the interest in and need for guidance on IDP protection and assistance.

Table 1: – A Framework for Action: – Clarifying National Responsibility for Addressing Internal Displacement

S/N

FUNDAMENTAL CHARACTERISTICS OF A NATIONAL RESPONSE

All Causes: Including people uprooted by conflict, communal strife and serious violations of human rights as well as those uprooted because of natural and human-made disasters, development projects and other causes.

All Groups: National authorities have a responsibility to ensure that the special protection and assistance concerns of particular groups within IDP populations, including women, heads of households, unaccompanied minors, persons with disabilities, the elderly, and ethnic minorities, are addressed.

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All Needs: A national response requires an integrated approach that addresses protection as well as assistance concerns. This is true even in situations of natural disaster when, although material relief may be the most visible need, serious protection issues nonetheless can arise.

All Phases: National responsibility extends across all phases of displacement. It includes preventing arbitrary displacement, ensuring the security and well-being of people once they are displaced, and crating the conditions for durable solutions to their plight, namely through voluntary and safe return or resettlement and reintegration.

All Authorities: A national response requires the collective contributions of all relevant branches of government. Authorities at the level, who are likely to be more directly in contact with displaced populations, need to ensure that national responsibility is effectively discharged in practice, not just in policy. The military and police have specific responsibilities for ensuring IDPs’ physical safety. Non-State actors, including insurgent groups, also have responsibilities under international humanitarian law and must be held accountable.

All affected areas: Especially in situations of internal armed conflict, government may not have effective control over all parts of the country. Around the world, millions of IDPs are found in areas under the control of non-State actors and out of reach of government assistance and protection. The effective exercise of national responsibility requires undertaking or at least facilitating efforts to access, assist and protect these IDPs. Opening humanitarian space in these areas provides an opportunity also to remind non-State actors of their responsibilities: under international humanitarian law and the Guiding Principles, they too have responsibilities to provide protection and assistance to the internally displaced persons. Governments may therefore find it valuable to enlist the support of NGOs, religious groups, donors or the UN and other international/regional organisations to help open humanitarian space to ensure the protection and assistance of IDPs in area under the control of non-State actors and, ultimately, also to resolve the conflicts in which these IDPs are caught.

Source: – Responsibility to Respond to Internal Displacement in the ECOWAS Region: Case Studies of Cote d’Ivoire, Liberia And Nigeria An Economic Community Of West African States (ECOWAS) / United Nations High Commissioner for Refugees (UNHCR) Study On Internal Displacement in the ECOWAS Region, Funded by the Embassy of Finland (Nigeria), October 2013 – December, 2014

Table 2: – Benchmarks and Indicators for National Response on Internal Displacement

S/N

BENCHMARKS

INDICATORS (MEASURES)

THE AU Kampala Convention

Prevent Displacement / minimize its adverse effects

Early warning system / mechanisms

Disaster risk reduction and preparedness mechanisms / procedures

Respect for International Human Rights Law (IHRL) / International Humanitarian Law (IHL) / Kampala Convention / UN Guiding Principles on Internal Displacement

By virtue of Articles 3(1)(a-b), States Parties shall refrain from, prohibit and prevent arbitrary displacement of populations; and shall prevent political, social, cultural and economic exclusion and marginalization, that are likely to cause displacement of populations or persons by virtue of their social identity, religion or political opinion.

Further, under Article 4(1) to (2), States Parties are required to prevent and avoid conditions that might lead to the arbitrary displacement of persons by respecting and ensuring respect for their obligations under international law, including international human rights and humanitarian law.

Raise National Awareness of the Problem

Policy statements or declarations

Sensitization campaign through mass media

Under Article 3(2)(c), States Parties shall adopt other measures as appropriate, including strategies and policies on internal displacement at national and local levels, taking into account the needs of host communities.

Collect data on Number / Conditions of IDPs

Magnitude, characteristics and needs of IDPs

Mix of qualitative and quantitative techniques

Under Article 5(5) States Parties are obligated to assess or facilitate the assessment o the needs and vulnerabilities of IDPs and of host communities in cooperation with international organisations and agencies.

Support Training on Rights of IDPs

Efficient management of IDP affairs

Consistent application of IDP law/policy or related laws/policy.

States Parties general obligations under Article 3(1)(d) include, respecting and ensuring respect and protection of the human rights of IDPs, including humane treatment, non-discrimination, equality and equal protection of law.

Ensure a Legal Framework for upholding IDPs’ Rights

Compatibility of existing law(s) with IDPs’ rights internationally guaranteed.

Comprehensive coverage of all phases of displacement

Article 3(2)(a) provides for States Parties’ obligations to incorporate their obligations under this Convention into domestic law by enacting or amending relevant legislation on the protection of, and assistance to, IDPs, in conformity with their obligations under international law.

Develop a National Policy on Internal Displacement

Inclusivity and transparency in the process of drafting an IDP policy

Comprehensiveness of content coverage of all causes, aspects, measures, rights and responsibilities.

Article 3(2)(c) requires States Parties to adopt appropriate policy measures and other strategies on internal displacement at national and local levels, taking into account the needs of host communities.

Designate an Institutional Focal Point on IDPs

Sustain attention to internal displacement issues.

Development and regular dissemination of updated reliable data on the volume, trend, location, general characteristics and needs of IDPs.

Coordination of national response to all aspects / phases of internal displacement.

Article 3(2)(b) places an obligation on States Parties to designate an authority or body, where needed, responsible for coordinating activities aimed at protecting and assisting IDPs and assign responsibilities to appropriate organs for protection and assistance, and for cooperating with relevant international actors and Civil Society Organisations, where no such authority or body exists.

Support National Human Rights Institutions to Integrate Internal Displacement into their Work

Independence and capacity to promote and protect the rights of IDPs.

Periodic reporting, investigation, and monitoring of IDPs’ rights abuses, legal assistance for access to justice / legal remedies

Ensure the Participation of IDPs in Decision Making

Existence of processes, mechanisms or channels through which IDPs participate in decision-making affecting their lives.

Article 9(2)k places an obligation on State Parties to consult IDPs and allow them to participate in decisions relating to their protection and assistance including public participation under 9(2)L in democratic governance.

Support Durable Solutions

Sustainable reintegration at the place of origin;

Sustainable local integration in IDPs host communities;

Sustainable integration in another part of the country;

Remedies for displacement related human rights violations, including access to justice, reparations and information about the causes of violations

Under Articles 2(c), 3(2)(e) and 11, the Kampala Convention commits states to seeking lasting solutions to the problem of displacement and explicitly recognizes IDPs’ right to voluntarily chose to return home, integrate locally in areas of displacement or relocate to another part of the country. States are responsible for promoting and creating satisfactory conditions for each of these options on a sustainable basis and in circumstances of safety and dignity. States must endeavour to incorporate relevant principles contained in the Kampala Convention into peace negotiations and agreements for the purpose of finding sustainable solutions to the problem of internal displacement

Allocate Adequate Resources to the Problem

Specific national budget line/allocation for internal displacement issues;

Quantum and regularity of releases to the relevant national authorities;

Monitoring and evaluation of funds utilization.

Under Articles 3(2)(d), 5(1) and (6), States Parties are obliged to: – provide, to the extent possible, the necessary funds for protection and assistance without prejudice to receiving international support; States Parties shall bear the primary duty and responsibility for providing protection of and humanitarian assistance to internally displaced persons within their territory or jurisdiction without discrimination of any kind; States Parties shall provide sufficient protection and assistance to internally displaced persons, and where available resources are inadequate to enable them to do so, they shall cooperate in seeking the assistance of international organizations and humanitarian agencies, civil society organizations and other relevant actors. Such organizations may offer their services to all those in need.

Cooperate with the International Community when National Capacity is Insufficient

Facilitation by national authorities of humanitarian assistance from international actors;

Nature and scope of request for technical, material, human and financial assistance from international actors.

Under Article 5(6), States Parties shall provide sufficient protection and assistance to internally displaced persons, and where available resources are inadequate to enable them to do so, they shall cooperate in seeking the assistance of international organizations and humanitarian agencies, civil society organizations and other relevant actors. Such organizations may offer their services to all those in need.

Article 8(d) and (f) requires the African Union to support the efforts of the State Parties including cooperation directly with African States and international organizations/humanitarian agencies, civil society organizations as well as the special rapporteur of the African Human Rights Commission on the rights of IDPs etc.

Source: – Responsibility to Respond to Internal Displacement in the ECOWAS Region: Case Studies of Cote d’Ivoire, Liberia And Nigeria An Economic Community of West African States (ECOWAS) / United Nations High Commissioner for Refugees (UNHCR) Study On Internal Displacement in the ECOWAS Region, Funded by the Embassy of Finland (Nigeria), October 2013 – December, 2014.

Strategies for adopting the Draft National Policy on IDPs, 2012: – the Road to Domestic implementation of the AU Kampala Convention in Nigeria

Contextual background

First, the initial draft policy dated September 6th 2011, was put together between 2006 and 2010 by the Presidential Committee on IDPs in Nigeria and the Sub-technical Working Group on the Policy.

Second the draft policy came under scrutiny at the 2- day multi- stakeholders’ Conference organized by the Civil Society Legislative Advocacy Centre (CISLAC), Abuja in partnership with the Internal Displacement Monitoring Centre (IDMC/NRC), Geneva, held at the Bolton White Hotel, Abuja between November 21- 22, 2011.

Having the examined the plights of IDPs in Nigeria in the light of international, regional and domestic legal frameworks, the conference, observed, among others, undue delay in the adoption of the draft policy on IDPs by Government; the largely uncoordinated national response for durable solutions to the plight of IDPs; the non- ratifications to the African Union (Kampala) Convention on IDPs by Nigeria; and recommended, among others, the need for the federal government to adopt a comprehensive policy, legal and institutional frameworks for the management of internal displacements in Nigeria in the light of global and regional best practices.

Third, between 30th May and June 8, 2012, two national consultations took place in Abuja and Keffi, Nasarawa state: – The National CSO Consultation and the National MDAs consultation on the draft policy respectively were both organized by Action Aid Nigeria in collaboration with CISLAC and IDMC, with support from the European Union.

In both fora, there was a consensus that the draft policy needs a surgical operation in order to meet up with Nigeria’s treaty and constitutional obligations. Among the measures put in place was a technical experts working group (TWG) drawn from the National Human Rights Commission, Action Aid Nigeria, National Emergency Management Agency (NEMA), National Commission for Refugees (NCFR), Nigerian Red Cross Society (NRCS), CISLAC, Institute for Peace and Conflict Resolution, UNHCR and OCHA, to further examine and identify existing gaps in the draft policy.

Fourth, the submissions of the TWG between June 10 and 20, 2012 were released to the lead facilitators of the national consultations for harmonization and further review. By July 5, 2012, the revised draft policy on IDPs in Nigeria worked on by both the TWG and the two national consultants were sent out for both internal and external comments by experts, in preparation for the 9th- 10th July, 2012 Multi- sectoral stakeholder consultation on the national policy on IDPs.

The revised draft policy was further reviewed and validated between July 9-11, 2012 by the multi-stakeholder consultative Forum. On July 12, 2012, a clean revised draft policy on IDPs was submitted to the NCFR by the Forum for adoption by the Federal Government. Hence the July 2012 Revised Policy was the product of a transparent, consultative process, structured into 6 chapters and contextualised in the best interests of IDPs, host communities and national security, consistent with Nigeria Treaty and constitutional obligations.

However, two years later after the ratification of the Convention and validation, the draft policy is yet to be adopted by government.

Strategies for adopting and implementing the policy

The following strategic action steps need to be considered: –

1st step: – Establish a multi-sector Forum to advocate with government for adoption and implementation of the policy. This Forum is to develop its own workplan inclusive are the following: –

Identify and address the reasons for the delay;

Make a sustained case for adoption by providing information to relevant ministry officials (especially Justice, interior, defence, information and Women Affairs) about the problems related to internal displacement and the obstacles IDPs face in enjoying their rights;

Highlight the ways in which the policy would help to address these problems;

Pay advocacy visits to the Vice-President of Nigeria, Senate President and the Speaker of the House of Representatives to encourage them to lend their support for timely and prioritize adoption of the national policy by President Buhari administration.

2nd step: – Document how the adoption of the Policy would help to prevent displacement, address the root causes of displacement, protect the rights of displaced people, and enable them to achieve durable solutions.

3rd step: – Raise Public awareness of the policy in order to create broad support among different sectors of society for the timely adoption of the policy, thereby increasing the pressure on the government to adopt without delay.

4th step: – Develop implementation action plan with benchmarks and verifiable indicators that are time-bound and based on shared responsibilities consistent with the policy’s guiding principles and objectives.

Strategies for developing a national implementing legislation domesticating the Kampala Convention in Nigeria.

The following strategic actions are worth considering in pursuit of the above: –

Establish a technical expert working group to develop a workplan for developing a domestic implementing legislation of the Kampala Convention in Nigeria. inclusive of the workplan are the following points: –

Provide rationale behind/Justification for domestication and implementation;

Propose desk review of relevant national legislations in order to identify gaps, remove legal obstacles for IDPs and identify legislations needing amendment;

Invest in a consultative process

The development of a national instrument on internal displacement is a process worth investing in for the following reasons: –

It is an opportunity for the government to demonstrate its approach to fulfilling its primary role in addressing internal displacement and to further build its capacity.

It brings together all relevant actors involved in addressing internal displacement in the affected country. It triggers relevant discussions among all participants in the process and provides advocacy opportunities.

It helps to resolve misunderstandings and to reach agreement on key notions, definitions and concepts.

It helps to identify a common way forward in addressing and solving displacement situations. It gives IDPs and other communities affected by displacement an active role and the chance to contribute, helping to counteract hopelessness and frustration.

It is an excellent opportunity to involve donors.

It is an important learning exercise for everyone involved.

The consultative process to develop a national instrument is as important as the outcome, because it will shape its content and prospects for its successful implementation.

Define the nature and scope of the envisaged national implementing legislation: – The first decision to reach is whether the stakeholders involved would prefer to adopt the AU Model law for the implementation of the Kampala Convention as a stand- alone displacement- specific instrument, or to address outstanding issues related to IDPs via the amendment of existing sectoral legislations/regulations. A combination of the two approaches is possible and often necessary in order to avoid contradictions between different legal instruments.

Table 3: – Approaches to domestic implementing legislation

Displacement-specific instrument

Sectoral regulation

Form

A single integrated instrument that covers all matters related to internal displacement and cuts across all relevant areas that require regulation.

Inclusion of displacement-specific regulations into relevant sectoral instruments such as laws, decrees, strategies and action plans on issues including social welfare, education, health, birth registration and documentation, housing, land and property regulations and others, in order to ensure that IDPs are afforded the same protection as the general population.

Advantages

Allows the particular circumstances of a country’s displacement situation to be addressed in a comprehensive and consistent manner

Reduces the risk of unaddressed protection gaps

More flexible in terms of format and scope

Easier to monitor implementation

Will in most cases be legally binding because they are amendments to existing laws and regulations with legal force

Will automatically involve all relevant ministries as they are primarily responsible for the amendment of regulations under their remit

Disadvantages

The cross-cutting nature of such an instrument means many ministries and governmental bodies need to be involved, which may cause delay or difficulties in fostering national ownership of the new instrument.

There may be more political resistance to the creation of a such an instrument

May leave certain gaps unaddressed.

May carry the risk of uncoordinated activities or lack of cooperation between relevant ministries and other government entities.

May create challenges for ministries involved in sectoral regulation because of a lack of knowledge and awareness of the particularities of internal displacement

The second decision to reach is the drafting style and the consultative process to review, validate and submit to the appropriate national authority for considerations either as an executive bill or private bill.

Need for Monitoring and Evaluation Framework of implementation of the Policy and the Domestication Bill

Monitoring and evaluating implementation serves two primary purposes:

Measuring progress: It is important to measure the