A landmark civil damages and human rights lawsuit has been
filed in the United States District Court for the District of Columbia against
sixteen Nigerian officials for their direct or indirect complicity and in the
extrajudicial killings or torture of Igbos who were protesting marginalization
based on their ethnicity, political viewpoint or religion. The Igbos organized
themselves as the Indigenous Peoples of Biafra (IPOB), which is as nonviolent
as, if not as symbolic as – for instance – the ‘agitation’ for Republic of
Texas, or of California in USA; and even Scotland that its own Premier is the
one leading the charge for a referendum of autonomy from Britain. In all these
cases, the agitators are not being shot at, tortured or killed by the army and
police.
I determined from my inquiries that service of the summons
and complaint, as well as the initial orders has been accomplished by certified
international courier on all defendants. They are currently in default for failure
to file a response within 21 days of service as stipulated in pertinent United
States federal rules of civil procedure. The
lead defendant is Nigeria’s
army chief, General Tukur Buratai.
The claims of the plaintiffs are grounded under two muscular
United States’
statutes – the Alien Tort Claims Act (ATCA or ATS – the Alien Tort Statute);
and the Torture Victims Protection Act (TVPA). Both laws have extraterritorial
reach, meaning that they allow US federal courts to assert long-arm
jurisdiction that extends beyond the borders of United
States.
Alien Tort Claims Act (ATCA) provides that ‘the district
courts shall have original jurisdiction of any civil action by an alien for a
tort (or civil wrong) committed in violation of the law of nations or a treaty
of the United States’.
Since 1980, courts have interpreted this statute to allow foreign citizens to
seek remedies in US courts for human rights violations for conduct committed
outside the United States.
Torture Victim Protection Act of 1991 is a statute that
permits civil suits in the United States
against foreign individuals who – acting in an official capacity for any
foreign nation – committed torture and/or extrajudicial killing.
Both laws, especially the TVPA endow individuals or their
legal representatives to sue foreign individuals, including officials, to
collect damages for extrajudicial killings or torture committed “under color of
foreign law.”
In the instant case, the plaintiffs already won first round
as the United States District Court has granted them leave to file anonymously
as “John Does” after making a ruling that they have a well-founded fear of
retribution/persecution by the government of Nigeria
or its agents or officials if their identities were disclosed. Violence against
Igbos by individuals in the military/police and directed and encouraged by
their superiors is notorious and well-known to the international community.
The defendants would be foolhardy to believe this lawsuit
will be difficult to win in the United States
or stultify and drag on as might have been expected if filed in Nigeria.
Judicial independence and the rule of law, as well as speedy trials are the
hallmarks of United States
jurisprudence. There are legions of US
judicial precedents pointing to the high likelihood of a summary judgment for
the plaintiffs.
Defendants will have no defense of official immunity because
they are being sued in their individual capacities and as officials who
purportedly ‘acted under color of law’. They are not sovereigns or diplomats.
Further, extrajudicial killings or torture are crimes against humanity. Upon
the prompting of the aggrieved, US courts will task any foreign government
officials that perpetrate atrocities of the kind visited on the Igbos of
Nigeria. It’s not a secret that Nigerian officials had, in the past, engaged in
misconducts that resulted in monetary judgments against them – in the millions
of dollars – in the United States.
This case appears bound for the same predictable result, unless handled
differently from the inexplicable bravado and laches that doomed Nigeria
in the previous suits preferred against its officials in the United
States.
The factual case against the defendants is convincing. All
Nigerians know of the widespread beatings and slaughter of Igbos by elements of
Nigerian security forces for merely and peacefully exercising their fundamental
human right to protest marginalization and urge a new political dispensation.
Indeed, beyond Nigeria,
Amnesty International and other credible foreign sources have confirmed those
killings and torture; and to be sure – their reports will be deemed probative
and admissible under standards of evidence long established in US federal
courts in cases of this nature. Plus, plaintiffs are all on standby in the United
States to air their tearful testimonies in
open court. It even makes it worse that the Nigerian army is reported to be
denying and covering up an atrocity that was so open and notorious.
It doesn’t make it any better that the Nigerian government –
so far – appears to have condoned the wanton killings by failing to publicly
discipline the officers that pulled the trigger or the commanders that gave the
order. It’s even worse that President Buhari, upon his return from vacation,
reportedly ordered his troops to renew their crackdown on Igbo protesters. That
VP Osibanjo gave no such orders when Buhari was away is noticeably
demonstrative of the widespread notion that Buhari – a Fulani core Muslim – has
profiled the Christian Igbos for persecution because of their ethnicity, their
love of freedom, and the perception that they did not vote for him in the 2015
election that saw him to power.
At present, the savage mentality that is directed against
Igbos in Nigeria of this era is widespread and underscored by the notorious
threat to expel or destroy millions of Igbos and seize their properties in the
Muslim northern states of Nigeria if they refused to surrender their right to
reside and work peacefully in that part of the country. And the federal, state,
and local governments appear as spectators to the looming genocide – a
spectacle that is not lost on a wary international community; and which might
as yet make Nigeria
a ‘state actor’ in the ultimate fallouts. Such fallouts will surely raise the
specter of an International Criminal Court intervention that may engulf the
present crop of Nigerian leadership at the very top.
The Nigerian defendants are mistaken if they believe they
can defend from the safe confines of Nigeria.
If the case goes to trial, they will be required – under penalty of default or
even contempt – to appear in a United States court to testify under oath and
dangerously probing cross-examination that will dwell on the details of the
Igbo killings and the complicity of other unnamed Nigerian officials, which
shall include whether they received their orders from the presidential levels
of security leadership to use lethal force on unarmed protesters. This evidence
could be used in a sequel criminal prosecution before the International
Criminal Court or a special court of the likes employed in the prosecution and
conviction of Chad’s
former dictator, Hissene Habre in Senegal.
The State governors – of Abia and Anambra – where these killings largely
occurred will also be ensnared by virtue of being the ‘chief security officers’
of their States. Those two governors are also listed as defendants.
If the defendants refuse to appear, default judgments will
be entered against them, in addition to the prospects of undefended huge damage
awards that will run in the millions of dollars. The ultimate loser –
diplomatically and financially – will be the Nigerian and State governments
that presumably control the officials who acted under color of state law when
the Igbo killings occurred. In the end, it may snowball to the government of Nigeria
being listed as a state sponsor of terrorism in the same manner as was done
with Sudan,
etc. In the interim and despite the continuing menace of Boko Haram, the United
Nations Security Council (or the US
– under the Leahy Act) could vote an arms embargo on Nigeria
to prevent the diversion of military weapons that could be geared to
perpetrating more official violence against the Igbo people.
Christian lobby groups in the United
States were largely responsible for making Sudan
a pariah state, which culminated in the creation of South Sudan
through a referendum organized and supervised by the United Nations. Like Nigeria,
Sudan also
fancied itself indissoluble just because its Constitution said so. That same
political dynamic will be at work against Nigeria
if the TVPA/ATCA litigation is not resolved amicably before Nigeria’s
dirty linen is exposed at trial in an open United
States courtroom for the entire world to
see.
Better yet, there’s a third way – a time honored window of
opportunity the defendants can exploit to end the case early and avoid the
severe rigors of a foreign trial. US trial lawyers and the courts within which
they operate are known to have a proclivity for encouraging any alternative
dispute resolution path that brings closure through a pre-trial fair settlement
of suits. Though this suit has progressed to a point of some disadvantage to
the defendants, it’s not too late for them to begin now to seek out plaintiffs’
lawyers and start talking to them.
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