Category Archives: Law

Report on the Impact of Nigerian LGBT Law

Human Rights Watch just published a report that Nigeria’s Same Sex Marriage (Prohibition) Act, 2013 (SSMPA) “encourages widespread extortion and violence.” I blogged about the similarities between Nigeria’s legislation and that of Uganda several years ago, after reading about anti-LGBT violence in East Africa.  Then, anti-gay legislation was in its nascence in Nigeria, but is now codified. It encourages Nigerians to report suspicions of same-sex relationships, which can lead to jail time for those convicted. Nigeria is just one of many African countries that make the continent one of the most difficult for members of the LGBT community. Assuming that gay marriage laws are an indication of attitudes toward the gay community in general, this legislative map shows which world countries are most challenging:



Human Rights Watch just published the following:

Nigeria’s Same Sex Marriage (Prohibition) Act, 2013 (SSMPA) has made a bad situation much worse for Nigeria’s beleaguered lesbian, gay, bisexual, and transgender (LGBT) community, Human Rights Watch said in a report released today. The law has led to an increase in extortion and violence against LGBT people and imposed restrictions on nongovernmental organizations providing essential services to LGBT people in Nigeria.

A gay man in Bariga, a neighborhood in Lagos, Nigeria, who said he hides his identity from his friends and family.
A gay man in Bariga, a neighborhood in Lagos, Nigeria, who said he hides his identity from his friends and family. © 2016 Glenna Gordon/The New York Times/Redux Pictures

The 81-page report, “‘Tell Me Where I Can Be Safe’: The Impact of Nigeria’s Same Sex Marriage (Prohibition) Act,” shows how the law, which took effect in January 2014, is used by some police officers and members of the public to legitimize abuses against LGBT people, including widespread extortion, mob violence, arbitrary arrest, torture in detention, and physical and sexual violence. The law has created opportunities for people to engage in homophobic violence without fear of legal consequences, contributing significantly to a climate of impunity for crimes against LGBT people.

“The Same Sex Marriage (Prohibition) Act effectively authorizes abuses against LGBT people,” said Wendy Isaack, LGBT rights researcher at Human Rights Watch. “While Human Rights Watch found no evidence that anyone has been prosecuted under the SSMPA, its impact has been far-reaching and severe.”

The report is based on in-depth interviews conducted between October 2015 and April 2016 with 73 LGBT people and 15 representatives of Nigeria-based nongovernmental organizations in Abuja, Lagos, and Ibadan. Human Rights Watch research indicates that since January 2014, there have been rising incidents of mob violence, with groups coming together to attack people based on their real or perceived sexual orientation or gender identity.

Former President Goodluck Jonathan passed the law, even though same-sex activity between consenting adults was already illegal and activists had not been advocating legalization of same-sex marriage. The law provides for prison terms of 14 years for anyone who enters a same-sex marriage or civil union and is so vague that “civil union” could include any form of intimate co-habitation.

The law also punishes establishing, supporting, and participating in gay organizations and public displays of affection with 10 years in prison.

The passage of the law was strongly opposed by domestic, regional, and international human rights groups, including the African Commission on Human and Peoples’ Rights. On February 5, 2014, Commissioner Reine Alapini-Gansou, the African Commission’s special rapporteur on human rights defenders in Africa, voiced concern about “physical violence, aggression, arbitrary detention and harassment carried out against human rights defenders dealing with sexual minority rights issues” in the wake of the law.

“Basically, because of this law the police treat LGBT people in any way that they please,” said an Abuja-based leader of a nongovernmental group. “They torture, force people to confess and when they hear about a gathering of men, they just head over to make arrests.”

Punitive legal environments, stigma, and discrimination based on sexual orientation and gender identity, together with high levels of physical, psychological, or sexual violence against gay men and other men who have sex with men, impedes sustainable national responses to HIV, Human Rights Watch found. When officials or national authorities, including law enforcement officials, condone and commit violence, it leads to a climate of fear that fuels human rights violations. The fear also deters gay men and other men who have sex with men from seeking and adhering to HIV prevention, treatment, care, and support services.

The law contravenes basic tenets of the Nigerian Constitution and violates several human rights treaties that Nigeria has ratified. In April 2014, the African Commission adopted its groundbreaking resolution 275, calling on governments to prevent and punish all forms of violence targeting people on the basis of their real or imputed sexual orientation or gender identity. In November 2015, the African Commission urged the Nigerian government to review the law, to prohibit violence on the basis of sexual orientation and gender identity, and to ensure access to HIV prevention, treatment, and care services for LGBT individuals.

Nigerian authorities should act swiftly to protect LGBT people from violence, whether by state or non-state actors. Law enforcement officials should act without delay to stop all forms of abuse and violence against LGBT people, and ensure that LGBT victims of violence can file criminal complaints against their attackers.

The government of Nigeria should repeal the specific provisions of the Same Sex Marriage (Prohibition) Act that criminalize forming and supporting LGBT organizations and ensure that key populations, including gay men, men who have sex with men, and transgender people have access to HIV services, care, and treatment.

“LGBT people in Nigeria are not advocating for same-sex marriage, but they want the violence to stop and for human rights defenders and organizations that provide services to LGBT people to be able to operate without fear,” Isaack said. “Nigeria should respond to the African Commission’s recommendation to review the law, rather than remaining silent about the human rights abuses LGBT people are facing.”

Washington Is Unhappy That Burundi Is ‘Very Happy’ to Be Leaving the ICC — Foreign Policy

The Burundian government wants to leave the International Criminal Court. They’re well on their way.

via Washington Is Unhappy That Burundi Is ‘Very Happy’ to Be Leaving the ICC — Foreign Policy. Also see my post on if certain African leaders are anticipating their own bad behavior by leaving the ICC.

Guterres as the next UN Secretary General

Leaders at the UN have announced their collective support of Portugal’s former Prime Minister, Antonio Guterres, as the new Secretary General starting next year. He will replace South Korea’s Ban Ki Moon for the first of two possible five-year terms. In a secret ballot, 13 Security Council members voted in support of him, two neutrally, and none voted against him. Although he is not the female SG many had hoped for, as there as has never been a woman to hold the position, it is still good news.

So, why does this new SG matter so much to Africa?

Guterres was the 10th High Commissioner for Refugees, and most of his UN experience has been working towards humanitarian efforts for those who are displaced.  He has been a vocal supporter of greater Western intervention on behalf of refugees, particularly those from Syria.

Although the world’s attention has been focused on those displaced from the Middle East, the refugee crisis has worsened in Africa too. The UNHCR reported that about 16 million people in Africa were either displaced or forced to flee to other countries. This figure increased by 1.5 million from 2014. Most of these people, about 10.7 million of them, were internally displaced persons (IDPs). The remaining 5.2 million were people that fled their home countries. The vast majority of these refugees, roughly 4.4 million, sought refuge in neighboring countries.

Like the previous years, the ongoing civil war in Somalia remained a huge factor in the high number of refugees. The simmering conflicts in South Sudan and Sudan were also responsible for putting many people on the run. Burundi descended into chaos after President Pierre Nkurunziza announced he was running for a third term, an election he went on to win. In Nigeria, the Boko Haram crisis drove a higher number of refugees to neighboring countries.

Infographic: Top 10 countries with refugee exodus (in thousands) Sperrfrist!!

There are few who are better poised to understand the displacement challenges of Africans than Guterres. Appointing the former head of the UNHCR as SG is a sound decision, and good news for those concerned for refugees and IDPs from Africa. Let’s still focus on a female SG for the next round, though, as this gender imbalance continues to be pressing.

Are certain African leaders anticipating their own bad behavior?

The African Union is still considering a mass withdraw from the International Criminal Court (ICC), which would be disastrous for human rights.  The ICC can prosecute individuals for international crimes such as genocide, war crimes and crimes against humanity, particularly in circumstances in which the country of the crime is unable or unwilling to do so.

Several years ago, I had the opportunity to sit in on testimony against Jean-Pierre Bemba Gombo at the ICC in the Hague, Netherlands. He is the Congolese former Vice President and ALC leader who ordered mass rapes and killings in the Central African Republic from 2002-2003. His trial was historic because it was the first time that an individual was charged with sexual violence as a stand alone crime. Previously, charges of mass rape have been embedded under the umbrella of other wartime violence in general. It was an important step forward for women’s rights.

This sort of progress would not have occurred outside the framework of the ICC. The AU currently demands that sitting heads of state be immune from ICC charges, but such actors are exactly those who are least likely to face justice in their home countries.  The ICC is most relevant precisely for them.  Are such leaders making a bid to withdraw simply in anticipation of their own potential bad behavior in the future?

Dissertation on Niger Delta women and the oil movement published

My dissertation is available online. If you are unable to access it because you are outside the academic network, please feel free to contact me for a copy. I am an avid supporter of open, author-permitted access to publications.


Since the discovery of oil in the Niger Delta in 1958, there has been an ongoing low-level conflict among foreign oil companies, the federal government, and rural community members in southern Nigeria. Armed insurgents and small cadres of male protesters have resisted oil activities, demanding environmental cleanup, employment, and local compensation for extractive operations. In 2002, however, large groups of women began engaging in peaceful protests against oil companies and the state, making the same demands as men. Current work describes these women as coming together autonomously to assert their rights in the face of corporation exploitation.  This project challenges such accounts and investigates how common perceptions of law and politics inform women’s role in the oil reform movement.

Employing constructivist grounded theory, this dissertation argues that women’s protests were largely a product of local elite male politicking among oil companies and federal and state governments. The first finding is that local chiefs, acting as brokers engaging in “positional arbitrage,” urge women to protest because it reinforces their own traditional rule.  In this sense, women have not implemented new tactics in the movement but instead are the new tactics. Secondly, Niger Delta women see law as innately good but identify individuals as the corrupting force that thwarts law’s potential for positive change. Women also perceive a binary between local and state law, thus allowing chiefs to act as gatekeepers between women and the state. As a qualitative case study, the project uses in-depth interviews, direct observations, and archival documentation to analyze a series of all-female demonstrations that occurred around oil extraction sites in Rivers State from 2002-2012. Ultimately, these findings welcome a more critical look at social movements by identifying ways in which apparent episodes of resistance may actually be reconfigurations of existing power arrangements.




grounded theory

For a link to my final dissertation, please see:

Paradise lost? Photography and oil in Nigeria


Source: Paradise lost? Photography and oil in Nigeria

Exploring the Creation of Nigerian Law

One of the central debates in the study of African politics surrounds the extent to which Africans have created their own legal systems. Is Nigerian law really even Nigerian?  Has it ever been? This is an important question because one of my lines of analysis for my dissertation will be about how the law shapes the forms of both formal and non-formal resistance in the Niger Delta.  If the law is merely an oppressive colonial construct, it would seem a poor avenue for resolving domestic and local level oil disputes. However, if it is the product of indigenous forces then it has a more legitimate claim to be a conflict resolution mechanism.

The first line of thought is that Nigerian law is not truly owned by the very people it purports to regulate and protect, and it is in fact, a Western project of domination. Comaroff and Comaroff describe Africans as “fetishizing” the domestic law they inherited from colonial powers as well as contemporary international law (Comaroff & Comaroff 2006).  By embracing both of these Western legal systems, Africans are actually reinforcing the disorder that law is intended to stop. Lawlessness in the postcolony is a product of artificially constructed legal regimes that are remnants of colonial rule.  These regimes fail to account for indigenous forms of capital accumulation and conflict resolution mechanisms, creating socioeconomic inequality that begets violence and disorder (29). In terms of modern globalization, judicialization of politics works in favor of corporate capitalism, which has used law to create a deregulated environment conducive to business. Human rights abuses surrounding oil indicate how Africa is entangled in a parallel, pariah economy of international scale that is undergirded by the use of Western forms of law (7).

Mamdani argues that democracy did not follow decolonization because in making their own governments, Africans recreated and reinforced despotic and ethnicized patterns in the bifurcated state. He calls this mode of rule “decentralized despotism.” Essentially, British “indirect rule” allowed for tribal chiefs to become their own little despots (as opposed to the French mode of direct rule which allowed French administrators to be centralized despots). This decentralized authoritarianism undergirds contemporary Nigeria’s struggles with lack of accountability and ethnic tensions (Mamdani 1996).

It has been argued that Nigerian law will never have the ability to function well because of its roots as a European means of exploitation of labor and resources, and because it entrenched previous inactive tribal conflicts that continue today. Its original purpose was never to resolve conflicts but to create them, never to limit power but to enable it (Mamdani 1996, 110). And in fact, “state law enforcement tended to rob custom of its diversity, homogenize it, and equate it with the boundaries of the tribe.” (184). With this European appropriate of African law, ethnicity became of categorical importance in land claims. The first constitution was bestowed on, and not created by, Nigerians in 1914 with the amalgamation of the British protectorates, a land consolidation enterprise (An-Na’im 2003, 212). Martin Chanock finds that Nigerian law was aimed primarily at helping Europeans secure their land rights well before that though, and largely through fomenting ethnic warfare (Chanock in Mann & Roberts 1991, 61).

Conversely, a different perspective emphasizes the role Africans have had in shaping the very European law that was bestowed upon them.  This perspective sees Africans and Europeans as engaged in an ongoing mutual construction of a fluid collection of rules and norms. Even Mamdani admits that ethnicity does not just function in a top-down manner as a means of rule, but also that it is and always has been an organizing principle in resistance. This notion is undergirded by sociolegal research that emphasizes understudied forms of resistance in Africa.

An analysis of Kenyan marriage disputes that tend to favor women’s victory in court demonstrates how those women have utilized law in a manner most beneficial to them, and at that same time have had a hand in shaping it. More specifically, these discursive courts offer sites for the complex reworking of gender relations, which creates possibilities for significant changes in social relations (Hirsch 1998). Thus, these courts have becomes sites of protest for women (Sally Falk Moore in Lazarus-Black & Hirsch 1994). Merry sees too that courts can serve as a mode of resistance to social practices such as domestic violence, but such resistance must be framed in the terms of the law itself, allowing protest only within the hegemonic categories of the law (Merry in Lazarus-Black & Hirsch 1994).

A study of the bandits of the Chad Basin shows how West African bandits have generated an “ethics of illegality” etched out by unregulated commerce that exists not as a form of resistance to the state, but in tandem with it.  In fact, “unregulated economic activity and road banditry are necessary entailments of the state in so far as they circumscribe new forms of economic rents and political constituencies. However, the state is also a necessary entailment to these activities insofar as they are dependent upon relations forged with customs officials, governors, mayors, and the police or gendarmerie” (Roitmann in Comaroff and Comaroff 2006, 250). This study speaks to the reciprocity of African law and society.

Exploring the Creation of the Nigerian State

Where does Nigeria fit into a discussion of how states are made? It is weak by nearly all measurements, and Foreign Policy magazine even labeled it a “failed state” based on its poverty and governance in 2010. To answer the Nigeria question, we might look to the institutional approach of state theory. It asserts that institutions—the way societies are organized—are the fundamental cause of countries’ underdevelopment. This traditional institutional explanation, built mainly on case studies in European countries, offers a helpful but incomplete framework for analyzing current conditions in Nigeria. It is deficient due to Nigeria’s unique human geography, colonial history, and resource endowment.

To remedy this weakness in institutional models, Jeffrey Herbst makes two key arguments about African state formation. First, he identifies population density as the causal factor behind institution building and a source of institutional comparative statics, not institutions themselves. His story is that Europe was scarce in land and high in population, whereas Africa had abundant land and fell short in population. This meant that Africans did not have to wage wars of land seizure or land defense that led to state-making and institution building, alá Charles Tilly. Furthermore, colonization in the name of resource plunder replaced the phase when institution building should have taken place. Colonization was followed by the Cold War in which the Western and Soviet powers were vying for allies in African countries, and this Western or Soviet financial support also replaced what would have been a period of institution building.

In Robert Bates’ state-centric mixed method analysis, he argues that the collapse of the state causes war and then violent political disorder, and not vice versa. The author focuses on what he identifies as the three keys to state failure in Africa aside from the destructive force of colonialism.  The first is ethnic tensions, which are the result of state failure and not of ancient hatreds, and the second is natural resources, which he finds to be a correlate but not a cause of war (as opposed to Collier and Hoeffler, or Fearon and Laitin).  The third cause for failure is a lack of strong democracy, and he maintains that competitive parties are required but not sufficient for order. Lastly, he concludes that public revenues matter more than private income, which is essentially an issue of poverty levels (Bates 2008). Bates and Barzel both think that strongly democratic states have greater productivity because individuals enjoy residual claims, thus giving individuals an incentive to be efficient (Barzel 2002).  Conversely, without rule of law the government keeps residual resources for itself, giving individuals no incentive to be efficient. Propositions by the two can aptly be applied to a reading of Nigeria.

Nigeria’s current economic, political and social conditions are best explained by research on oil politics specifically. For one, the stimied capacity of the state to raise revenues and its growing reliance on powerful interest groups conspire to limit the range of policy choices open to the government, paralyzing the process of institutional development. Thus, most extractive states like Nigeria develop similar institutional frameworks that encourage political leaders to pursue politically painless policy solutions. The end result is an institutionally weak state reliant on oil rents and beholden to rent seekers (Karl 1997).

Some argue that oil revenues interfere with state evolution—the competition for the survival of the fittest country. Most of Europe’s states did not survive because most of them were weak and unorganized; those that still exist today were simply better than the others.  Conversely, all of Africa’s modern states have survived, even bad ones.  Foreign influences and oil revenues has allowed weak states that should have died out continue on (Herbst 2000). Soares de Oliveira claims that oil may very well be the single factor allowing weak African nations to survive despite failing to meet Weberian criteria for stateness. He calls these “successful failed states” because they have immense amounts of money and can at times use ample force, yet are barely functional (with functionality defined by their institutionalization, legitimacy, and degree of rentierism). Their failure is a continuation of politics by other means (Soares de Oliveira 2007, 56).

Such a portrayal of African oil-rich countries accords with that of Scott, who conceives of the state as being an inherently extractive entity (Scott 2009). He adds to the discussion by describing how countries will use resources, e.g. oil revenues, to invent development schemes that inevitably fail because they ignore the complexity of practices, processes, and relations present in those environments, the value of everyday local knowledge. They continue to push forward these improvement plans because of their ongoing attempts at being more modern, which means greater “stateness” that justifies their own governance (Scott 1998). Oil actually exaggerates the phenomenon that Scott describes by providing almost limited resources. Nigeria has engaged in these modernizing development projects and virtually of them have been a failure.

Deltan Women’s Trust in Courts

The previous post about the recent settlement from Shell favoring the Bodo community, in which the company agreed to pay over $83 million dollars to avoid litigation, made me wonder about the potential for increased use of courts as a mean of collective action for Niger Deltan women. Although the Shell settlement arose from cases filed in British courts, I considered whether women would start viewing Nigerian courts as a place to seek justice as well.

However, my research several years ago indicated that, at least then, women did not view Nigerian courts as viable conduits through which they could help remedy environmental damage. Some rural women told me that courts are unfair because you can “pay the lawyer to speak well for you,” and another colorfully said, “What is bad about Nigerian court is that a child can be born today and you can put the case in court, and the child will graduate from university and the case will still be in court.” Across Nigeria, Afrobarometer’s public opinion survey asked rural women, “How much do you trust courts of law?”:

2002-2003 2005-2006 2008-2009 2011-2012 Average*
Not at all 33% 27% 19% 20% 25%
Just a little 41% 35% 36% 36% 37%
Somewhat 17% 26% 30% 31% 26%
A lot 3% 9% 11% 12% 9%
Don’t know 6% 3% 3% 1% 3%

(*The weighted average takes into account the number of respondents in each survey, which varied from 2002-2012. There were a total of 4671 respondents for all 4 surveys during this decade. My chart shows that trust in courts increased a bit during this period but was still very low (raw data taken from Afrobarometer 2012).)

A prominent women’s rights activist told me: Community groups do not have the resources to pay the fees of a legal practitioner.  Also, they don’t have faith in the legal system because of corruption. It is assumed that the oil company can buy up the lawyer and spend money to disturb the legal system, so communities will not actually have access to justice.  There is no faith in the system.  That is why community groups do not even make the effort to go to court.

Indeed, Nigerian courts and legal institutions have long been acknowledged as among the most corrupt. The Mo Ibrahim Index regularly ranks Nigeria “very low” on its measurements of rule of law, placing it 43rd out of 52 African countries in 2012.  Indeed, half of my respondents said that corruption impedes their chances of succeeding in courts. Considering corruption and the unequal playing field for grassroots activists, it is unsurprising that women have chosen to protest over engaging with formal law.

Nigerian Supreme Court.

Nigerian Supreme Court.

Shell, villagers agree to $83.5 million for huge oil spilll | The Japan Times

Shell, villagers agree to $83.5 million for huge oil spilll | The Japan Times.

Over 15,600 Ogoni farmers and fishermen whose lives were devastated by two large Shell oil spills in 2008 are celebrating the $83.5 million settlement they will receive from Shell as compensation. The settlement, split among individuals and the community as a whole, avoids Shell having to defend a potentially embarrassing London high court case which was due to start shortly. It is thought to be the largest payout to any African community following environmental damage and the first time that compensation for an oil spill has been paid directly to affected individuals rather than to local chiefs.

In the past, compensation from companies has been paid to chiefs, with the understanding that he would use it for community projects.  However, there is little to no oversight after the compensation is paid out, leaving room for chiefs to skim off the top.  In fact, chiefs have had an incentive to actually encourage collective action against oil companies, since resistance measures could cause companies to pay out financial compensation that chiefs would then control. Conversely, during protests the chief will go to a private negotiation with company officials to “settle peace,” as Nigerians call it.  The company may pay the chief what they term “community compensation” to settle the matter, with both parties understanding that the chief is being paid to send the protesters home.  Whether collective action succeeds as it did in this most recent case, or whether is fails when chiefs put an end to it, the chiefs benefit. Hopefully, pay outs directly to community members like Shell is now doing will help ensure compensation goes where it should, into the pockets of local citizens.

Ikebere protesters