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The Nigerian Government Response and Potential Policy Alternatives

State and local governments throughout Nigeria discriminate against non-indigenes in ways that contravene both the Nigerian Constitution and international human rights law.  The federal government, however, has done nothing to curb these practices or to reform federal government policies that are themselves discriminatory. 

Article 42(1) of the Nigerian Constitution states that no Nigerian, solely on grounds of their “community, ethnic group, place of origin, sex, religion or political opinion” shall be “subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject.”  This language echoes similar guarantees enshrined in the International Covenant on Civil and Political Rights and the African Charter on Human and People’s Rights.195

Policies that deny Nigerians equal access to employment and educational opportunities solely because they belong to a community whose origins are said to lie in some other part of Nigeria stand in open violation of these guarantees.  International human rights law prohibits discrimination on many grounds, including race, ethnicity and religion.196  Governments nonetheless may and can even be required to take affirmative action (sometimes known as “positive discrimination”) on behalf of certain segments of the population to correct conditions that have prevented or impaired their enjoyment of human rights.197  This would include preferences for government jobs and university admissions.  Such policies must be based on “reasonable and objective criteria.” And the preferential treatment must be directed to diminish or end discrimination against the group and only for so long as is needed.198

On the surface, some of Nigeria’s indigeneity policies appear similar to affirmative action programs for indigenous or minority populations elsewhere.  Some proponents have justified the policies on these grounds.  But such similarities are misleading at best.  Nigeria’s indigeneity policies are neither reasonable nor objective as they are based on criteria unrelated to any discrimination, and do not necessarily seek to reverse any discrimination suffered.  They are not intended to reverse discrimination against similarly situated groups in a particular state or locality, but simply to favor “indigene” groups over all the others.  That is, groups labeled as non-indigenes may have faced equal or worse discrimination as the favored indigene group.  Nor are the measures designed to end once the discrimination has been overcome, but are to be in place permanently.  

Just as fundamentally, those discriminatory practices are a perverse distortion of the ideals most central to Nigeria’s unique vision of federalism.  The Nigerian Constitution emphasizes inclusiveness and autonomy as a way of ensuring that the benefits of national citizenship are shared equally across Nigeria’s complex spectrum of ethnic, cultural and religious diversity.  As one Nigerian scholar explained to Human Rights Watch, the Nigerian Constitution emphasizes interregional equity and inclusiveness to ensure that “even the weak can gain access to government.”  “Instead,” he went on, “those provisions have become the basis for discrimination instead of affirmative action.”199  Formal policies discriminating against non-indigenes have also fueled more informal modes of discrimination that also fly in the face of Nigeria’s most fundamental human rights guarantees.

All of the state government officials interviewed by Human Rights Watch claimed that it would be politically impossible for their states to take the lead in ending discrimination against non-indigenes.  While claiming that they were sympathetic to the plight of their non-indigene constituents, they each argued that the problem could only be solved through federal government intervention that would affect all states equally.  A spokesperson for the governor of Kano state articulated that sentiment this way:

The best solution would be for the federal government to come up with a law that would compel all states in Nigeria to accept the so-called non-indigene or settler… But for you now to say, “You, Kano, you should start it up [on your own]” is difficult because our own people are being discriminated against elsewhere.200

Other state government officials made almost identical arguments, claiming that their administrations could not be expected to stop discriminating against non-indigenes so long as indigenes of their own state faced similar discrimination in other parts of Nigeria.

The fact that discriminatory practices which violate the fundamental rights of millions of Nigerians might be politically popular in some quarters in no way justifies state governments’ willingness to perpetuate them.  The reality, however, is that state governments are unlikely to act unless they are legally compelled to do so, and in any case the problem is a nationwide phenomenon that cannot realistically be combated one state at a time.  For these reasons, and because of its implications for the basic rights of all Nigerians, the indigeneity issue is a problem that requires federal government leadership.  Until now, however, such leadership has been entirely lacking.

Politicians at the highest levels of the federal government have been vocal in denouncing discrimination against non-indigenes and the violent conflicts it has helped engender.  President Obasanjo himself has publicly complained that “[m]any citizens are threatened and denied their God-given and constitutionally-guaranteed right to live and earn their living anywhere in our nation…[because of such] monstrosities as ‘non-indigenes,’ ‘stranger,’ ‘native,’ or ‘settler.’”201  Such rhetoric has never translated into real action, however.  Like those that came before it, President Obasanjo’s administration has neither taken concrete steps to combat discrimination against non-indigenes nor lent meaningful support to the attempts of others to do so.

Not only has the federal government failed to exercise leadership in ending discrimination against non-indigenes, but some federal policies actually serve to legitimize and entrench that discrimination.  Federal universities and other institutions, for example, make use of the concept of indigeneity in implementing admissions or hiring quotas.202  This adds to the material disadvantage suffered by Nigerians who cannot obtain a certificate of indigeneity, and reinforces the notion that a person cannot become a full citizen of a place of which he or she is not an indigene.

Possible Policy Responses to the Indigeneity Issue

Some of the discriminatory practices affecting non-indigenes would be permissible if they sought to make a distinction based on the notion of residency, and applied only to non-residents rather than non-indigenes of Nigeria’s various states and localities.   Many federal systems of government throughout the world allow their federating units some limited power to favor their own residents.  In the United States, for example, state universities generally offer preferential terms of admission and lower fees to residents of their states.  Such policies are seen as justifiable because non-residents do not pay taxes or otherwise contribute to the provision of those services to the same degree as residents.203 

Nigeria has departed from these norms by sanctioning policies that tie the enjoyment of full state and local rights—the right to enjoy equal treatment with other citizens of a person’s state or locality—to a person’s status as an indigene rather than to some kind of residency requirement.  Since indigeneity is essentially an immutable and hereditary characteristic, Nigerians are forced to remain within the geographical boundaries of their “home” state if they wish to avoid being discriminated against by state and local governments.  What is worse, some Nigerians cannot escape discrimination in any part of the country at all.  At least on paper, both of these problems could be solved by requiring state and local governments to extend full rights to all residents of their jurisdictions, and this is precisely what most Nigerians advocating an end to indigeneity-related discrimination have proposed in one form or another.   

In 2004, a group of Nigerian senators including Deputy Senate President Ibrahim Mantu sponsored a bill that would have expressly prohibited—and criminalized—discrimination against non-indigenes who had lived and paid taxes in their state of residence for at least five years.204  The proposed legislation made an exception that would allow favorable treatment related solely to what it refers to as “the traditional rights of the host community, especially the right to traditional heritage and practices.”205  That language is somewhat opaque but could be read as an attempt at legitimizing some ethnically based restrictions on chieftaincy titles and related issues. 

That Residency Rights bill has never emerged from committee and seems unlikely to do so, but its provisions illustrate how straightforward, from a legal standpoint, federal government intervention on the indigeneity issue could be.  Such legislation would express the federal government’s renewed commitment to the existing constitutional rights it has failed to defend, and would back them up with enforceable sanctions.  It would put real pressure on state and local governments to reverse their discriminatory policies against non-indigenes, and would deprive states of the argument that they cannot act on the problem on their own so long as other states continue to discriminate.

Some advocates of reform of indigeneity-related policies have argued that legislation alone is inadequate to the task of rooting out indigeneity-related discrimination and have called for constitutional reform that specifically addresses the issue.  Most notably, the Citizens’ Forum for Constitutional Reform has called for new sections on residency rights to be added to the text of the constitution.206

Many advocates of constitutional reform acknowledge that such reform should not technically be necessary as the constitution in its current form already provides for the protections they seek to introduce.  They argue, however, that discrimination against non-indigenes has become so entrenched in Nigeria that it cannot simply be litigated or even legislated out of existence.  Only the arduous and high-profile process of pushing through a constitutional amendment, it is argued, could generate the necessary degree of public awareness and discussion that would translate legal reform into meaningful changes on the ground.207  As one prominent member of the Citizens’ Forum explained to Human Rights Watch:

It is not just about the constitutional amendment but also about reform of politics and public awareness.  If the indigeneity idea is the basis of the problem, a new idea can form the basis of the solution.  The process of constitutional reform itself would be educational.208

Whatever form it might take, any federal government intervention to protect non-indigenes from the discrimination they now suffer would have to deal with a number of complicated issues.  Perhaps the thorniest of these would be finding a way to ensure that smaller ethnic minorities in particular would retain some means of preserving their cultural traditions and insulating their institutions of traditional leadership, especially chieftaincies, from outside interference.209   Thought must also be given to whether and how strict boundaries on the permissible applications of the idea of indigeneity might be complemented by some form of positive discrimination, or affirmative action, in favor of disadvantaged groups. 

Notwithstanding all of the complexities that surround these issues, it is absolutely clear that federal government intervention to end institutionalized discrimination against non-indigenes is both feasible and essential.  Because the human rights problems associated with the concept of indigeneity are so deeply entrenched, however, that intervention must entail a sustained and comprehensive involvement with the issue that goes far beyond the mere passage of legislation.  Perhaps most importantly, the federal government must accompany any legal reforms with a sustained and meaningful effort at public education around the human rights issues involved, and must take an active and vigorous role in enforcing whatever clearly spelled-out norms it codifies.

[195] Article 2 of the ICCPR requires state parties to “respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  Article 2 of the African Charter on Human and Peoples’ Rights states that the rights guaranteed by the Charter’s other provisions must be respected “without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.” 

[196] ICCPR, articles 2 and 26; International Convention on the Elimination of All Forms of Racial Discrimination, art. 1.  It is also worth noting that article 50 of the ICCPR requires that all of the covenant’s provisions “extend to all parts of federal states without any limitations or exceptions.”

[197] According to the U.N. Human Rights Committee, the expert body that monitors compliance with the ICCPR, in its general comment on non-discrimination:

The principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.

Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 26 (1994), paragraph 10.  See also the International Convention on the Elimination of All Forms of Racial Discrimination, article 2(2); Convention on the Elimination of All Forms of Discrimination against Women, article 4(1).

[198] Human Rights Committee, General Comment 18, paragraph 10.  See also, Sarah Joseph et al., The International Covenant on Civil and Political Rights, (Oxford Univ. Press, 2000), at 23.64, citing Waldman v. Canada, Human Rights Committee, CCPR/C/67/D/694/1996 (November 5, 1999), paragraph 10.6.  See also, CEDAW, article 4(1).

[199] Human Rights Watch interview with Etannabi Alemika, Jos, November 17, 2005.

[200] Human Rights Watch interview with Sule Ya’u Sule, Director of Press and Public Relations, Kano, November 30, 2005.

[201] Ola Awoniyi, “President blames unrest in Nigeria on power-seekers, mind-set,” Agence France-Presse, January 25, 2002.

[202] See above, Section V.

[203] Federal courts in the U.S. have set limits as to the kinds of state government discrimination against non-residents permitted under the U.S. Constitution.  In 1999, for example, the U.S. Supreme Court struck down a California state law that limited the amount of welfare payments to families who had been residing in the state for less than a year to the lower amount they would have received in their state of previous residence.  That provision was found to violate U.S. citizens’ constitutionally-guaranteed right to travel, which includes a right to reside permanently in another state and be treated like the state’s other citizens.  Saenz v. Roe, 119 S. Ct. 1518 (1999).

[204] Citizens Residency Rights Bill 2004.  Text of bill on file with Human Rights Watch.

[205] Ibid, Art. 5.1.

[206] See, for example, Citizens’ Forum for Constitutional Reform, “Memoranda Submitted to Presidential Committee on Provisions for and Practice of Citizenship and Rights in Nigeria,” (Lagos: Citizens’ Forum for Constitutional Reform, 2002), p. 9-19.

[207] A proposed amendment to the Nigerian Constitution must first obtain approval of a two-thirds majority of the National Assembly.  It must then be approved by the state legislatures of two-thirds of Nigeria’s thirty-six states.  Constitution of the Federal Republic of Nigeria, Article 9.

[208] Human Rights Watch interview with Dr. Sam Egwu, Jos, November 19, 2005.

[209] For further discussion, see above, Section IV.

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