Introduction

A number of insurgencies, armed conflicts, and violent expressions of identity-politics have characterized Nigeria’s Fourth Republic. Problematic institutions and patterns established by the 1999 Constitution have facilitated conflicts in the Middle Belt, the Niger Delta insurgencies, and persistent clashes between farmers and herders, ‘settlers and indigenes,’ and ethno-religious groups. Despite the numerous conflicts the country has experienced, the Boko Haram insurgency in North East Nigeria is undoubtedly the greatest crisis that the country has seen since its return to democracy. The insurgency, and the heavy-handed state response, is responsible for more than 50,000 deaths since 2009.1 Motivated initially by intra-Islamic debates and founded as a largely peaceful dissident sect, the Salafi Jihadist group is now engaged in a widespread, anti-state campaign of violence affecting four countries. More than 2.8 million people have been displaced from their homes, flooding into Maiduguri and across borders into Chad, Cameroon, and Niger.2 In addition to this mass violence and displacement, the horrific details of abductions, sexual violence, and wanton human rights violations have all left an indelible mark on the psyche of the people in the country’s war-torn North East.

While Boko Haram has been conceptualized as a security threat, requiring a military response, by the Nigerian government and many of its international allies, if the country is to recover from such violence and prevent future conflicts from erupting in a similar fashion it is necessary to reframe the problem as a broader social and legal issue. While the specific manifestations of violence vary by region and time, reflecting local resources and contexts, it is evident that shortcomings within the 1999 Nigerian Constitution have fueled instability and complicated post-conflict development and reintegration programs—not just in the instance of Boko Haram, but across the country.

Identifying the constitutional roots that make conflict more likely and more difficult to resolve is necessary for preventing similar rebellions from developing in the future and to appropriately respond to the current Boko Haram crisis and humanitarian disaster. Many of these problematic attributes were adopted as a response to the perceived roots of the devastating 1967–70 civil war, which is estimated to be responsible for more than one million casualties (Polynational War Memorial n.d.) This constitution was designed to prevent violent separatist movements, predicated upon the domination of large ethnic groups. Though these constitutional reforms were a response to the country’s history and enjoy a certain level of popularity, it is evident that they have given rise to a new sort of insecurity in the country. Contemporary conflicts in Nigeria are less about ethnic groups gaining autonomy from the federal government and more about gaining access within the carefully constructed quota system established by the “federal character” principle and a frustration over democracy’s failure to deliver (Suberu, 2009) (Diamond 2016).

Three aspects of the 1999 Nigerian constitution stand out as particularly problematic: the centralization of the police at the federal level with limited sub-national oversight, the ambiguous concept of indigeneity, and the overlapping, often contradictory land tenure systems endorsed. All of these allude to the precariousness of Nigerian federalism under the current constitution; ultimately, the police centralization primes the country for violence, while the indigeneity rules and land tenure system make it more difficult to negotiate stable post-conflict settlements. The centralization of the police force at the federal level has led to lopsided federalism, incentivizing both vigilantism, as well as violent anti-state revolt. Ethnic self-defense militias, political thugs, and vigilantes have all had complicated relationships with their local government counterparts, mobilizing in response to a security gap, while simultaneously contributing to insecurity by reducing the state’s monopoly on violence. Indigeneity laws, ambiguous but ubiquitous, have cemented identity politics and reduced the effectiveness of humanitarian efforts by complicating the provision of resources from states and local governments. The convoluted land tenure system undermines the state’s authority and encouraged forum shopping to resolve land disputes, when outright violence is not adopted.

The 1999 Constitution successfully leverages the “centripetal” institutions (those aimed at power-sharing outcomes through the integration of various ethnic groups) to promote pre-electoral multi-ethnic coalitions and avoid ethnic separatist movements and violence (Sisk 2003). However, multi-ethnic governance is not synonymous with good governance.

The attributes adopted in 1999 were designed to prevent the sort of crises that threatened Nigeria decades earlier; they have resulted in new sources of insecurity and contexts in which tensions are rarely drawn down. Under the present constitutional arrangement, justice is not sought after by contacting relevant government bodies; rather, self-defense militias and vigilantes, who can rapidly accelerate the conflict into a violent crisis, manage social and economic conflicts. The process of rebuilding and reintegrating communities at the end of these crises is impeded by the current constitution. This proliferation of sources of insecurity and the response by community-based militias has eroded the monopoly of the legitimate use of force by the Nigerian government. The ways in which over-correcting from past experiences while designing a new constitution, giving rise to new fault lines in explosive conflicts, is readily apparent in the experience of the Nigerian Fourth Republic.

Constitutional reform to mitigate these sources of insecurity and establishing stabilizing constitutional tenets is necessary, bearing in mind the potential for another over-correction. The Boko Haram crisis, which has roots in federalist debates over Sharia implementation and sub-national security provision, and attempts to engage in post-conflict rehabilitation and reconciliation, complicated by land tenure and indigeneity, provides a valuable lens for understanding the constitution’s destabilizing attributes.

This paper will use the current Boko Haram crisis to illustrate how the constitutional shortcomings have been operationalized as facilitators of instability. To do so, this paper will briefly describe the structure of Nigerian federalism under the 1999 Constitution, and then it will discuss the rise of Boko Haram within this socio-legal context. Following this scene setting, this paper will illustrate how the aforementioned constitutional provisions allowed for Boko Haram to become such a destructive force. The paper will close with a brief delineation of the possible policy reforms to assuage the insecurity and instability in Nigeria, broadening the discussion to how the 1999 Constitution ushered in a new era of insecurity.

Nigeria’s Political Economy and National Context

Despite the formal institutions that encourage centripetal, cross-ethnic cooperation, informally much of Nigeria is governed according to the principles of ethno-regional federalism. The country is comprised of 36 states and 774 Local Government Areas (LGAs), a division that is constitutionally mandated following a spate of sub-national unit proliferation in the early to mid-90s. The sub-national geographic divisions appear to be stable and reasonably successful in their attempt to create multi-ethnic coalitions, despite relying on often puzzling sub-national boundary demarcations. All three layers of the Nigerian government are subject to democratic elections under the terms of the 1999 Constitution, which restored Nigeria to civilian rule.

Since 1999, ‘free and fair elections’ in Nigeria have been accompanied by an overarching commitment to ensuring balanced ethno-regional representation and division of government resources among the states ‘fairly.’ In an effort to assuage ethnic tensions that had resulted in violence in the past, the country adopted a geographic distribution system called the federal character, which “stipulates that the composition of public institutions should reflect the federal character of the country or the ‘diversity of peoples’ at each level of government” (Suberu, 2009). In practice, this is effectively a balancing quota system that extends to every level of the government. The presidential election and appointment of ministers provides a valuable illustration of this principle at play. Under the 1999 Constitution, “to be elected president, a candidate must win not only a plurality of votes nationally, but also at least 25% of votes in two-thirds of the states and in the federal capital territory of Abuja. Once in power, the elected president is constitutionally required to include an ‘indigene’ of each state in the federal cabinet” (Suberu, Federalism in Africa: The Nigerian Experience in Comparative Perspective 2009).

The states themselves are grouped into six zones: the North Central, North East, North West, South East, South South, and South West. The division of political offices between the geographic political regions in Nigeria, through a process known as zoning, results in a political system that relies on informal, tenuous power-sharing mechanisms that circulate power between states and ethno-political regional blocks. Zoning seeks to “distribute, balance and rotate key governmental and party offices among the country’s diverse ethnic, religious, regional and geopolitical constituencies” to prevent feelings of ethnic isolation or marginalization (Suberu, 2009).34

The effects of zoning are not limited to the elite political sphere, but extend to the daily experiences of Nigerians across the country. Voter registration documents, social services, admission to universities, and employment with state and national government bodies are meted out according to predetermined ratios on the basis of indigeneity, a status determined at the LGA level (Nigeria Research Network 2014). Despite the centrality of indigeneity to a number of political and economic processes, the concept itself is amorphously defined in the Constitution. States and LGAs have thus adopted their own definitions of indigeneity. Most of these definitions are modifications of the Federal Character Commission’s definition, a body itself created by the 1999 Constitution (CLEEN Foundation 2009). Generally, indigeneity restricts the responsibility of sub-national Nigerian states to providing services only to those citizens who can prove that their parents and/or grandparents were born in that region (Omotoso 2010). No length of residency in another state or region can produce indigeneity; the result is systemic discrimination against a significant proportion of the population.

Another contentious issue, highlighting the continuing relevance of the debates about the character of Nigerian federalism, is the division of authority over the security sector in Nigeria. The federal government maintains control not only over the military, but also over the police. The centralization of the police is problematic for two reasons. Firstly, security gaps are inevitable when a centralized force attempts to patrol such a vast and varied landscape; secondly, states lack both their own official security forces and oversight over federal police operating in their borders. The result is a proliferation of informal sub-national providers of security, at times endorsed and armed by state governments. Despite the community and state support they often receive, lack formal accountability mechanisms undermine the rule of law across the country. Particularly when these groups have fallings out with their political patrons, they have a tendency to become predatory militias. Boko Haram, for example, has its roots in a state-sponsored militia patronized by former Borno Governor Ali Modu Sheriff.5

Though the 1999 Constitution is ostensibly the highest law of the land, Nigeria has a “parallel system of traditional governance” comprised of Emirates, and religious bodies throughout the country; these traditional bodies often pre-date the Nigerian state and remain potent sources of local authority. According to Human Rights Watch (HRW), these bodies “generally represent only their own ethnic communities… Despite not holding formal positions in the government, they wield considerable political influence, especially at the local level” (HRW 2006). Trust in these leaders is significantly higher than other local leaders. According to surveys conducted by AfroBarometer, a research group that compiles attitudinal data across Africa, showed that 16.2% of Nigerians trust their traditional rulers “a lot”; only 6.1% of those polled trust their local elected officials to that extent.6 The bargains struck between the formal and traditional governing bodies contribute to the contentious and unstable political situation in northern Nigeria and foster conflict throughout the country more generally. Traditional authorities are often consulted in land disputes; their rulings may in some instances be considered more valid than those made by their official state counterparts.

All of these governmental categories, and their internal characteristics and hierarchies, must be taken into consideration when discussing the Nigerian State. While it is perhaps unfair to claim that Nigeria “is a mere geographical expression,” the country’s government contains multitudes; the heterogeneity of the government must be recognized (Awolowo 1947).

Evolution and Impact of Boko Haram

Even after its descent into violent, anti-state activity, Boko Haram did not emerge initially as a violent movement that sought after territory.7 Boko Haram’s current characteristics are the result of endogenous and exogenous factors, most importantly the state’s response to the group, which is a direct result of the structure of the security sector in Nigeria (Suberu, 2009) (Nigeria Social Violence Project 2016).

Mohammed Yusuf, an indigene and Muslim sect leader, in Maiduguri, Borno State founded Boko Haram in 2002. The founding of Yusuf’s Ibn Tamiya mosque came after he fell out with his former patrons at Indimi Mosque, a prominent Salafist center in Maiduguri. Ja’far Adam, one of Yusuf’s patrons at the mosque, Yusuf had advocated for the implementation of Sharia in northern Nigeria under the 1999 Nigerian Constitution. The “Sharia debate” that emerged following the transition to democracy highlights the tension between the federal and state governments in Nigeria; whether or not states had the authority to impose religious regulations within the context of a secular constitution became a national issue (Suberu, Religion and Institutions: Federalism and the Management of Conflicts over Sharia in Nigeria 2009). The various groups lobbying for Sharia law (and for its application in a particular manner) were not merely advancing a religious argument, but they were also seeking to enhance their political position and the status of the state relative to the federal government.

Even when the adoption of Sharia law and enforcement became an issue, groups bargained for political influence with their ability to mobilize political support (or quell dissent); the Sharia debate and the need to generate support locally gave rise to Boko Haram. In exchange for the appointment of a Boko Haram sect member as the Borno commissioner for religious affairs, a position that would allow the sect to advance a specific and strict interpretation of Islamic law, Yusuf deployed the youth wing of the movement to ensure political support for then-Governor Ali Modu Sheriff.8

Yusuf founded Jama’atu Ahlis Sunna Lidda’awati wal-Jihad in 2002, breaking off from Ja’far Adams’ group and eventually breaking away from those who advocated for Sharia’s implementation in Borno, claiming the movement had become corrupted and politicized. Yusuf’s group was dubbed ‘Boko Haram’ (“western education is forbidden”) by locals, which reflected the sect’s disdain for Westernization and secularism in Nigeria. After its founding, the group largely engaged in petty violence, often against Muslim clerics critical of their strict Salafist interpretation of Islam; the bulk of the group’s activities, however, were non-violent and focused largely on community-building. Their political connections allowed the group to act with relative impunity; the lack of state-level security units not only allowed Boko Haram to negotiate political patrons through their ability to apply force, but they also created an atmosphere in which the sect could ‘fly under the radar’ of the federally controlled police. When the federal government finally did take note of the sect, it cracked down harshly in a joint military-police endeavor. In 2009, Yusuf and more than 1,000 suspected members of Boko Haram (including former religious affairs minister Alhaji Buji Foi), were killed extra-judicially and brutally by the Nigerian security forces. Amnesty International documented a number of human rights abuses against the community during these raids, including torture and gross infringements on property rights and the general rule of law (Amnesty International 2015).9

The group’s attacks stalled for nearly a year as it regrouped under the leadership of Abubakar Shekau. Under Shekau, the group’s grievances shifted to symbols of the Nigerian state and their violence targeted military outposts, police stations, and prisons in a series of hit-and-run attacks. Undoubtedly, recruitment in this period was bolstered by frustration with the heavy-handed tactics of the Nigerian security sector, but was also complemented by financial incentives to join (Mercy Corps 2016). In this period, Boko Haram gained the technical capacity to bomb its targets. The Nigerian government did not respond quickly to these changes (again, perhaps reflecting the security gaps created from the lack of a state-level security unit capable of gathering timely and relevant intelligence), allowing the group to grow in strength, influence, and lethality. In May 2013, the federal government declared a State of Emergency across the three states of Borno, Yobe, and Adamawa. Accompanying the declaration was an influx of Nigerian security forces (often in joint police-military deployments), pushing the sect out of urban centers into rural communities.

At this point, the group began engaging in more raids on communities and holding territory. This period also corresponded with an increased reliance upon conscription, including women and girls as ‘wives’ for the fighters, and a proliferation of displaced people moving to Nigerian urban centers or out of the country. During this period, a number of scholars have observed that the sect fractured into disparate cells, many of which intertwined with criminal networks in the region.10

At present, the insurgency is comprised of numerous smaller cells dispersed throughout the country’s north. The cells typically conduct regular preaching, indoctrination through Quranic education, and are led by Emirs appointed by insurgent leadership.11 The religiosity of the sect’s leadership is surprising to some; the overriding emphasis of the ‘greed’ theory of insurgent motivation eschews paying close attention to ideological motivations of violent actors. It is evident, however, that some of the group’s organizational resources are being allocated towards furthering their Salafi-Jihadism.

Violence related to the insurgency has killed more than 50,000 people in just 7 years (Nigeria Social Violence Project 2016). The estimated 2.8 million people that they have displaced constitute a humanitarian crisis on a global scale that spills across Nigeria’s borders in Chad, Niger, and Cameroon, taxing the limited resources of all of these states. Despite the havoc wreaked by the insurgency, there are some reports that the insurgents’ entrance into Mubi, Adamawa State in December 2014 was greeted with cheers by citizens disaffected by the stagnant and corrupt political system.12 The Boko Haram insurgency illuminates, in the most destructive of ways, the tenuous socio-political and economic position of communities in North Eastern Nigeria.

Caring for and rehabilitating those displaced by the insurgency have also been complicated by the Nigerian legal system. Widows returning to their communities are reportedly being denied land under traditional arrangements; those who remain in host communities or internally displaced people (IDP) camps receive very limited support and they do not qualify for the services regularly distributed by the state on the basis of indigeneity.13

While the military campaign against the insurgents must continue, the necessity of post-conflict reform to address the constitution’s role in fostering instability cannot be ignored. The following sections will address directly the three constitutional tenets in greater depth illustrating how they prime the country for violence and complicate efforts at post-conflict reconciliation.

Centralization of Police: Security Gaps and Informal Mobilization

Police Centralization

The structure of the Nigerian police and its sub-national oversight mechanisms are outlined in the 1999 Constitution. Despite the country’s federalist structure, the police force is essentially a federally controlled structure with little state oversight. Section 215 (2) of the 1999 Constitution states, “The Nigeria police force shall be under the command of the Inspector-General of police and contingents of the Nigeria police force stationed in a state shall, subject to the authority of the Inspector-General of police, be under the command of the commissioner of police of that state” (Constitution 1999). Though in theory, state governments should have some influence over the police in their districts, “evidence abound on how state Governors in Nigeria, who are elected by their people and dubbed the Chief Security Officers of their state, have been reduced to ceremonial chief security officers… state governors [are] helpless as [the police] are not answerable to the state governor but the Inspector-General of Police” (Agawanwo 2014). The Inspector General of Police (IGP) is appointed by the President; the appointment of the IGP is supposed to be done in consultation with the Nigeria Police Council (NPC), an oversight body that includes 36 governors, however, the NPC meets too infrequently to exercise this authority. Further, the responsibility of the president to consult the body is amorphous and poorly defined. Regular civilian oversight has been shuffled through a number of ministries over the years, including the Ministry of Interior and the Ministry of Police Affairs. The shifting and tenuous nature of civilian oversight furthers a culture of impunity and corruption within the police (Awolowo 1947).

Though overseen and managed by at the federal level, the administrative divisions reflect the federal character of the country. Each of the 36 states has a dedicated state command, overseen by a federally appointed Commissioner of Police; these administrative units are then grouped into 12 zonal commands, overseen by an Assistant Inspector General of Police. At the sub-state level, there are a number of smaller administrative units. The management and oversight of the police, despite administrative division at the state and sub-state level, remain with the federal government.

Constitutionally centralizing the police was a means of reducing the potential for sub-national revolt. At the time of independence in the 1960s, the police force was larger than the military, threatening the political class whose power was tied to that of the military. During the country’s bloody Biafran Civil War, before the centralization of the police at the federal level, local police were used in the fight against the government. The governments that came after the civil war considered local and state-level police forces a threat to national unity and security. As a result of this mistrust and the ascendency of powerful military leaders, “the NPF [National Police Force] was chronically underfunded and marginalized,” in addition to being centrally controlled (Nigeria Police Watch n.d.). The return to civilian rule (under General Olusegun Obasanjo), was accompanied by a robust police recruitment campaign to revive the anemic institution. Unfortunately, this growth outpaced the ability to abide by training standards and the result was a bloated and ill-equipped force. The result was an overall weakening of the state’s security apparatus.

Nearly two decades after the adoption of the 1999 Constitution it is clear that a federal police force resulted in massive security gaps and fostered a divide between the state governors and the federal government. Even prior to the transition to democracy, the Nigerian government’s security sector had “lost a significant portion of its monopoly on the use of force as well as some degree of legitimacy as a security provider,” in large part due to the “failure of the state to respond to deep-seated issues of social and political exclusion [and] the lack of capacity of state security institutions to contain the levels of rising crime and unrest which led on several occasions to the use of the army to respond to internal security situations” (Dayil 2016). Much of the mistrust and reputational issues surrounding the Nigerian police can be traced to the lack of accountability for its officers.

The consequences of the lack of oversight and uncertain positioning within the Nigerian political system are a police force characterized by ineffectiveness and human rights abuses. Nigeria’s security sector is ill equipped to grapple with the challenges that the country faces today; counter-insurgency campaigns require not just military force, but the ability to ‘out-narrate’ their opponents. The police are the country’s largest employer, however, those hired are often poorly trained and poorly compensated. A result of this disintegration of professional capacity is a reliance on extrajudicial violence, torture, and executions in the name of ‘maintaining order.’ This heavy-handedness and failure to abide by the rule of law created a perception that “police and military officers were not regarded as a source of protection, rather as entities to be feared” (Abegunde 2013). Afrobarometer’s latest round of data analysis found that 46% of Nigerians trust the police “not at all.” The CLEEN Foundation, a civil society group in Nigeria that advocates for police reform, links that the “militaristic approach to security challenges” taken by the police is a result of the country’s history of military rule and the frequency of joint military and police formations (Mustapha 2013). They argue that this history creates conditions in which the police’s heavy-handed responses breed resentment. Such widespread distrust, coupled with the institution’s reputation for corruption and predation, suggest that a major reform campaign is necessary for long-term stability in the country.

The Nigerian police occupy an uncomfortable space within the Nigerian political landscape. In the past, their ranks have been inflated, but underfunded; over the course of Nigerian history, the police force has been considered an ineffective body, a threat to the military, and a predatory institution. Overall, the “security sector in Nigeria is not people-oriented,” preventing the forces from achieving their mandate (Mustapha 2013). The frequent security sector abuses, most notably by the Mobile Police Units (MOPOL) and the Joint Task Force (JTF), have led to renewed calls for security sector reform. Unfortunately, such reform appears Sisyphean. Security sector reform was attempted under the Obasanjo administration, with few tangible results. In the mid-2000s, an Armed Forces Transformation Committee consisting of military, civilian, and military officers from within the Ministry of Defense provided a blue-print for security reform (Aiyede 2013). The current investigations into the misuse of military funds by Sambo Dasuki during his tenure in the National Security Agency, estimated to be more than $2 billion dollars, illustrates some of the challenges in implementing reforms, regardless of the official funding doctrines.

Vigilantism

The lack of oversight mechanisms at the state level and corresponding political influence encourages a proliferation of informal security providers, often endorsed by state-level and local politicians. These are not insignificant bodies; consider that, in response to Boko Haram, an estimated 26,000 people joined the Civilian Joint Task Force (CJTF) in Borno State; 1,800 of these have received government financial assistance and paramilitary training from Kashim Shettima, the governor of Borno State (Okewo 2014).14 These groups, when they are not outright political militias, are often vigilante groups that emerge from a mixture of political patronage and legitimate security gaps. It is critical to note that vigilantism has not been confined to Nigeria’s North East in the Fourth Republic. The Bakassi Boys in South East Nigeria, for example, is a prime case of a vigilante group that arose because of a perceived lack of state-provided security against criminality; their descent into violence illustrates the perilous nature of vigilantism (HRW 2002). Community policing, informal security provision, militias, and vigilantism are widespread phenomenon throughout Nigeria, particularly during the Fourth Republic.

The wide range of policing activities under their purview further evidences the rise of vigilante groups as a quasi-police force at the state level in the Fourth Republic. According to Laurent Fouchard, these groups were “not only vested in crime control activities but were also supposed to enforce a larger social control: registration of all tenants and landlords, scrutinizing activities of the residents, monitoring the movements of strangers and people with sudden wealth, and identification of every house in the ward” (Fourchard 2008). Such activities are undertaken by a number of informal security groups across the country.

The geographic ubiquity of different forms of vigilantism, in response to a variety of crises during different periods, suggests that the motivation towards such informal security provision is a product of shortcomings in the Nigerian system of governance, rather than a phenomenon specific to one region. Vigilante groups are a way for governors to pursue independent agendas. The proliferation of vigilante groups thus constitutes a series of local responses to a systemic national issue, as well as local instances of insecurity, and the “widespread perceptions that the police, the courts, and other institutions of the state were too corrupt to curtail crime” (Smith 2008).

Interestingly, citizens and civil society advocates often assert that the vigilante groups exercise more restraint than other formal security providers. A human rights advocate in Yola noted that, “vigilantes are better than the police and military. They have a code of conduct – no looting and no sleeping with the women.”15 Undoubtedly, however, vigilantes act outside of the rule of law; they have often been used to enforce party lines and intimidate political opponents. Interestingly, these groups consider themselves “protectors of a ‘moral community,’” despite their politicized nature (Hills 2011). The invocation of moral authority complicates attempts to place legal, institutional constraints on their activities, despite frequently close ties to the political sphere.

The ambiguous legal position held by vigilantes and state-sponsored militias further illustrates their roots in ineffective governance. Vigilante groups have, at various times and in various states, been cultivated, disbanded, funded, trained, endorsed, and disowned by their respective political patrons. The vigilantes in Adamawa had received some training and financial support from the government, however, they complained that it was infrequent, unpredictable, and insufficient.16 Vigilantes have also been a means for state governments to have a policing capacity in the face of a centralized police force.

A critical issue with all vigilante groups endorsed (explicitly or tacitly) by the state is the disarmament of these groups; it is easy for state government to lose control of these groups once arms and training have been dispersed. Additionally, since these groups often see themselves as vanguards of a moral community, subjecting their activities to official oversight can be interpreted as oppressive. A human rights advocate who works with CLEEN in Nigeria noted that “leaving the vigilantes idle is a threat to society,” suggesting that in the absence of both jobs and an insurgency to occupy them, these groups could become destabilizing actors. A member of the CJTF in Maiduguri was even more explicit, stating that in the post-conflict era, “if you abandon them, you are planting a seed of discord. They will strike back at the community.”17

More broadly, the conditions that give rise to the proliferation and state-sponsorship of these groups must be considered. Ideally, recalibrating the balance between federal and state control of the police would lead to improved public security. ‘Public security,’ as defined by Hassan Abbas and Nadia Gerspacher, reflecting on vigilantes in Iraq and Afghanistan, entails a broader conceptualization of ‘security’ than traditional definitions. These authors define ‘public security’ as a situation in which “police and communities have the capacity (individual) and the systems (institutional) to directly cooperate with each other, the public reporting threats or crimes and the police responding according to democratic policing principles” (Abbas and Gerspacher 2015). Federal centralization of the police impedes the realization of public security in Nigeria.

Boko Haram and Police Centralization:

The Boko Haram insurgency is both a product of, and a contribution to, the insecurity that results from the centralization of the police. Not only does the group have its roots in the sort of guns-for-hire militias that state governments have patronized, it catalyzed the establishment of numerous vigilante groups to provide security in the absence of a state response. Additionally, throughout the State’s campaign against the insurgency, the worst elements of the Nigerian police’s tendency towards heavy-handedness have been displayed. The 2009 raid against Boko Haram, arguably the federal government’s first attempt at stymieing the group, in which an estimated 1,100 people were killed, was accompanied by reports of rampant human rights abuses, including extrajudicial killing and torture (Thurston 2016). The Joint Task Force comprised of units from the police and military, marshaled to combat Boko Haram, appears to have compounded the weaknesses of both forces, amplifying the both the corruption and heavy-handedness that characterizes its two components, respectively. Counter-insurgency efforts have often placed additional strain on populations victimized by Boko Haram who are detained, tortured, robbed, raped, and harassed by members of the security sector with disturbing regularity (Amnesty International 2015). The detention practices at Giwa Barracks, where suspected members of the insurgency (and, often, their family members) are kept, is reported to be an over-crowded, unsanitary environment, in which members of the security forces act with impunity (Amnesty International 2016).

While Boko Haram facilitated a proliferation and legitimization of vigilante groups to respond to their violence, both Boko Haram and the vigilante movements opposing it are ultimately a symptom of weaknesses of the Nigerian state. Members of these vigilante groups expressed a desire for more, formalized support from the Nigerian government at both the state and federal level. These groups often justified their existence as necessary because of the lack of attention paid to remote areas by the Nigerian Police Council. Interviews with communities in Yola, Adamawa State and Maiduguri, Borno State both reported having more respect for the vigilante groups than the legitimate security institutions in the state.18

Indigeneity

As previously discussed, despite the constitutional references to indigeneity, there is not a singular legal definition adopted at the federal level. Instead, the Federal Character Commission’s (FCC) administration and interpretation of the text has come to be the accepted baseline definition, subject to modifications by sub-national political units. This creates an uneven legal landscape, as states and LGAs have built upon this definition to respond to local power dynamics. Brendon Kendhammer concluded after extensive interviews with employees of the FCC, that, “since the mid- 2000s, the FCC has come to rely on the LGAs to do this work for them, particularly through the issuance of ‘indigeneship certificates’ to qualified citizens. Given the lack of federal oversight, the criteria for assigning indigeneship within LGAs—particularly around Clause 1(b)—vary tremendously, swayed by the dynamics of local ethnic (and, where they overlap, religious) conflicts and the results of (often violently contested) LGA elections” (Kendhammer 2014).

Though definitions of indigeneity vary between LGAs and states, discrimination on the basis of indigeneity is widespread and enduring throughout the country. As outlined in the 1999 Nigerian Constitution (a definition that is operationalized with some modifications by the 774 LGAs, and affirmed by the Federal Character Commission), “the indigenes of a place are those who can trace their ethnic and genealogical roots back to the community of people who originally settled there. Everyone else, no matter how long they or their families have lived in the place they call home, is and always will be a non-indigene” (HRW 2006).

No amount of time spent residing in a community can impart indigeneity. Unsurprisingly, increased mobility (resulting from urbanization, natural disaster, conflict, and climate change) has butted up against this restrictive concept of belonging, resulting in violence and volatility. The provision of services at the state and LGA level is an enduring problem in Nigeria. This concept is not a mere formality, nor an esoteric concept (like the electoral college in the United States) that only policy elites engage in. As Kendhammer notes

The idea of the federal character has evolved into perhaps the single most important concept in Nigerian public life, a logical framework into which nearly every demand on state resources is fitted and through which every grievance is expressed. It is invoked to debate the ethnic and religious make-up of the roster of the national football team, to analyze the admissions rolls published by all federal universities, and to compare the spatial allocation of market stalls (Kendhammer 2014: 407).

Claims of indigeneity have been used to discriminate against the non-indigenous. HRW notes, “in many states, non-indigenes are openly denied the right to compete for government jobs and academic scholarships, while state-run public universities subject non-indigenes to discriminatory admissions policies and higher fees. Instead of working to combat this discrimination, federal government policies have often served to legitimize and reinforce it” (HRW 2006). The vagueness of the concept legally has been politically useful for local government officials; HRW notes that an “increasing number of Nigerians… are unable to prove that they are indigenes of any place at all; such individuals are discriminated against as non-indigenes in every part of Nigeria… a Nigerian who does not have an indigeneity certificate will be treated as a non-indigene in his or her formal interactions with all levels of government” (HRW 2006). Their study concludes that “An increasing number of Nigerians find themselves trapped in this category of stateless non-indigenes,” belonging nowhere and struggling to access state resources (HRW 2006).

This discrimination was not confined to any region or state in Nigeria, suggesting that the underlying legal definition of indigenous and the particular structures of federalism in Nigeria, rather than political sentiment or regional characteristics, are at fault. Troublingly, there seems to be no recourse for those unfairly denied certificates of indigeneity. Femi Omotoso frames the problem that these citizens face as such: “What is noticeable in the country is that indigeneity is placed before national citizenship. Despite constitutional provisions that emphasize the importance and relevance of citizenship, particularly as regards the rights and obligations associated with it, indigeneity has consistently thwarted citizenship” (Omotoso 2010).

Indigeneity is deployed as a biological concept, rather than one connected to the investment and history in a state. Omotoso highlights the paradox that while foreigners can become naturalized Nigerian citizens, people born in a particular Nigerian state may not be considered indigenous to that state (Omotoso 2010). Since the constitution was adopted, there have been two attempts to reform indigeneity: In 2005 a senator from Adamawa State proposed a bill “which granted full ‘indigeneity’ rights to all residents who has lived in a place for at least five years,” with exceptions made for chieftaincy titles and “other culturally specific matters” and in 2010, a politician from Plateau State sponsored a bill to extend rights to residents after five years and to the souses of indigenes. Ultimately, both bills failed because of a lack of political will and support in the legislative branch (Nigeria Research Network 2014).

The importance of indigeneity in Nigerian politics operationalizes and institutionalizes identity politics, undermining national security. Migration and displacement have become synonymous with disenfranchisement for many in Nigeria due to the constraints of indigeneity. Far too frequently, this sort of political organizing results in violence. The settler/indigene conflicts in Nigeria’s Middle Belt states have resulted in persistent and low-level violence claiming thousands of lives between a variety of groups over rights to land and political positions, as well as other factors.

Boko Haram and Indigeneity

Those who have been displaced by violence or natural disaster are doubly victimized by strict interpretations of indigeneity. Fleeing from one’s home rarely involves a thoughtful assessment of what paperwork or belongings will be useful; the tendency for Boko Haram to raid cities at night, often burning them to the ground, means that a significant proportion of those displaced do not have their certificates of indigeneity – if they had them to begin with. Given that displacement is rarely a short-term condition, the International Displacement Monitoring Center (IDMC) reports that the majority of the displaced populations they work with have been living in host communities or camps for ten years or more and those who have fled Boko Haram are unlikely to return in the near future. The massive dislocation of populations in northern Nigeria as a result of Boko Haram may be laying the foundations for indigeneity conflicts in coming years. At present, 90% of the displaced population are not living in camps, but are attempting integration, at least temporarily, into so-called host communities.19

Those living with host communities are particularly vulnerable. They do not receive aid from the government that camp residents benefit from and they are dependent upon the host communities’ hospitality for land and resources. Since these Nigerians are not indigenes of the communities they live in, this hospitality is subject to revocation and may provoke resentment or violence from those who feel that the assistance given to the IDPs comes at the expense of indigenes. Even those who have returned to the communities where they fled from are not guaranteed to retain their indigene status. Certificates of indigeneity, like permanent voter cards (PVCs), may have been lost or destroyed as people fled; the massive loss of life in northern Nigeria may also have destroyed the oral and communal history often relied upon to make these distinctions. Despite the fact that the displaced populations attempting to rebuild their lives are among the most vulnerable communities, both as settlers in new communities and as returnees to secured LGAs, it seems unlikely that they will be able to access the appropriate resources because of the restrictions indigeneity entails. The lack of legal consensus surrounding indigeneity and the centrality of the concept to the provision of government resources complicate the process of caring for and reintegrating the displaced.

Identity politics animates much conflict in Nigeria’s Fourth Republic and indigeneity is a concept that legitimizes a divisive discourse. Nearly ten years ago, reflecting on the persistent violence in the Middle Belt and Niger Delta, the International Crisis Group noted, “In the context of Nigeria’s diversity, a constitutionally based tenet that seeks to foster inclusiveness is a worthy ideal. But the federal character principle, as construed and implemented, legitimizes a logic that fuels ethnic hostilities and recurrent bloodshed” (ICG 2006). Their report further concluded “There is a compelling need to divorce citizenship and entitlement from indigeneity.” Displacement related to Boko Haram has made this need all the more pressing (ICG 2006).

Civil society groups, including the Citizens’ Forum for Constitutional Reform (CFCR), an umbrella group consisting of more than 60 civil society groups, support the development of a naturalization process with regards to indigeneity (ICG 2006), however, channeling this political support to the right institutional channels is challenging, however. Reform is unlikely to come from the sub-national political units. HRW noted that state government officials they spoke with all claimed:

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 (HRW 2006).

As a result, it seems that federal reform to address the discrimination on the basis of indigeneity will be the most effective route.

Land Tenure(s)

Closely related to the issue of indigeneity is the issue of access to land; conflict over land is a flashpoint for conflict globally. In Nigeria, these conflicts are complicated by the overlapping land tenure systems that govern land allocation and management in the country. Particularly in rural communities where subsistence agriculture dominates, access to land and a predictable and reliable system for resolving land-related disputes are critical. Secure land tenure would not only reduce land-related conflict, but would also promote development through increased agricultural production.20

The land tenure system in Nigeria has long been problematic; the Land Use Act of 1978 was incorporated into the Constitution adopted in 1999 and though the Land Use Act was intended to simplify the ownership system, “the effort to replace the customary system made land less accessible to most people” (USAID n.d.). The United States Agency for International Development (USAID) indicates that under this system:

Allocation procedures are highly discretionary, allowing opportunities for corruption and self-dealing by state and local government officials and politicians. Individuals can obtain land use rights, but they have no foundation of communal land holdings and no presumption of inheritance within families or lineages… Customary law continues to govern land tenure for the majority of Nigerians (USAID n.d.).

According the USAID’s review of the land tenure system in Nigeria, few residents are even aware of the dictates of the act and continue to live under customary management systems without obtaining official government land rights (USAID n.d.). This is further complicated for communities in the north, where large segments of the population also live under Sharia law’s land management policies. USAID notes “in some parts of northern Nigeria, Sharia law supplanted customary law; elsewhere the two systems merged to create a type of hybrid system” (USAID n.d.).

In addition to being poorly understood and unconsolidated at present, the formal land management program is arduous to work within. Jacquie Kiggundu further elaborated on this issue, claiming that:

Obtaining and registering the certificate of occupancy requires 14 separate steps, beginning with production of a sketch, diagram, or other description of the land and application on a prescribed form. The landholder must pay a series of fees, including a —file opening fee, application fee, survey fees, and various additional charges that combine to exceed 22% of the land value. Once the certifi cate of occupancy is granted (a process that averages six to nine months), the landholder is required to pay the local government an annual rental fee or tax for the use of the land. A household holding 2 hectares devoted to cultivation with no requirement to pay tax on the land under customary law will likely spend more than the annual income from the land to obtain the certificate, and registration and will also be required to pay tax on the land in the future. (Kiggundu 2008).

It is no wonder that, given these multiple systems competing for legitimacy that a process of forum shopping to settle disputes is common. Though this flexibility may be appealing to some, ultimately it results in ambiguity and uncertainty as “customary rules and arbitration results can be easily contested and revoked” and at present “links between authority figures remain unclear and decisions may never be definitive as rulings can easily be challenged by another body” (Kiggundu 2008). This report highlighted the particular role that forum shopping plays for those displaced by conflict, observing that, “without definitive and accessible methods of dispute resolution IDPs may have difficulty securing a sustainable solution” (Kiggundu 2008).

In addition to the forum shopping that accompanies these overlapping systems, this insecurity fuels inequality and conflict. As Jean Daudelin notes, “informal politics, corruption and administrative inefficiencies contribute to tenure insecurity and, as a result and in themselves, they leave much space for highly unequal access to national land and concentration of land holdings. Land titling programs by weak states contaminate customary systems and result in the informalization of land tenure and deepening tenure security, which impact on concentration. Finally, by opening up political opportunities, they create incentives for broad political mobilizations and large scale conflicts” (Daudelin 2003). Nigeria has experienced such conflicts frequently in its Middle Belt, where land issues overlap with claims of indigeneity and other resource conflicts.

Boko Haram and Land Tenure

The issue of land tenure in North East Nigeria in the aftermath of the Boko Haram crisis is certain to be a gendered issue. According to a report carried out by the Government of the United Kingdom, (Nigeria Social Violence Project Johns Hopkins University School of Advanced International Studies 2016) (Youngs 2015) women owned only 4% of land in North East Nigeria in 2012 (British Council and UK AID 2012). The gap between the overwhelmingly male policy makers in North Eastern Nigerian communities and vulnerable women they must work with in the post-conflict era sets the stage for tone-deaf policies and a lack of attention to women’s rights and issues.

Many women in these communities have been widowed, which complicates their access to land and leaves them without livelihood prospects or a home, as the overwhelming majority are involved with agriculture. For women who have been victimized by Boko Haram, many of them will be subjected to discrimination from customary land management systems that prevent female inheritance, or by politicized systems of allocation lacking accountability mechanisms. Mercy Corps has recorded incidences of women being denied land when they return to the communities that they have fled from; it is unclear what legal recourse is available to them. Debate on the land management system in Nigeria in 2010 suggests high-level recognition of such problems, however previous discussions have not yet resulted in necessary reforms. The lack of a clear land tenure system not only further victimizes women in the North East, it also impedes the process of post-conflict redevelopment. Agricultural production cannot be promoted in the post-conflict era if land tenure is uncertain and if the largely female able-bodied population faces burdens to land access. The current land tenure system cultivates uncertainty, enables discrimination, and impedes economic development.

Conclusion

Aside from the security measures necessary to quell the Boko Haram issue, a series of legal and policy reforms will be necessary to care for those impacted by the insurgency and to prevent future instability throughout Nigeria. Given that the average length of insurgencies is eight to twelve years, it is foolhardy to wait for a complete military success against Boko Haram to lay the groundwork for a peaceful reconciliation (USMC 2012). Further, the populations that are beginning to return to their communities cannot wait indefinitely for guidance on issues that relate so dearly to their livelihoods (Johnston and Urlacher 2012). While the experiences that informed the drafting of the 1999 Constitution, which prompted concern about the dangers of ethnic separatist violence were valid, it is becoming ever more evident as years pass that the country over-corrected. The new era of insecurity the Fourth Republic ushered in can be traced back to terms of the 1999 Constitution. The following are three reforms that should be undertaken in order to remedy the institutional and legal atmosphere in Nigeria to promote stability.

Decentralization of Police and Institution of State Oversight

The prospect of decentralizing the Nigerian Police to the state level has been broached in the past; it is politically contentious, with a number of civil society advocates and detractors, both of which raise valid points about institutional capacity and the risks of politicization. Nearly universal, however, is the recognition that existing police oversight mechanisms are insufficient. As a means of decentralizing control over the nation’s police services, increasing state oversight over the police is a valuable first step. Allowing governors to appoint the police commissioners of their state and reviving the authority of the NCP through regular meetings and the publication of their stances on a variety of security related issues.

The 1999 Constitution “empowers Parliament to pass legislation on military reform and to supervise the management and transformation of the security sector” (Aiyede 2013). The Nigerian Parliament thus has a critical role to play in the process of reform, however, this will require wrestling military policy away from the executive branch and military leadership – a coup that seems nearly impossible in the current climate. The Nigerian legislative branch should once again take up the discussion as to whether or not State level police units are desirable, and how decentralization could be phased in, while the members of the NCP (including state governors) should reassert the limited authority granted by this oversight body.

Increased oversight authorization and (potentially) decentralizing control over the National Police Force must be accompanied by a phasing out of informal security provision. Certainly state support, both tacit and overt, must be put to an end if the rule of law is to be upheld in Nigeria. Undoubtedly, drawing down vigilante groups will be a politically sensitive process. In order to prevent instability and violence from vigilante groups who may feel marginalized or threatened, community policing principles and programs can be adopted, establishing accountability mechanisms for the vigilante groups and reducing their impunity. Some of the participants can be brought into the official state security services, but additional employment resources and opportunities should be offered.

Synthesizing a New Indigeneity Definition (At Parliament Level)

While the concept of indigeneity is troubling, the most immediate issue is the unevenness with which it is applied and the lack of flexibility in granting indigeneity to long-term residents. Since it appears prominently in the country’s constitution, there should be a national definition that applies to subnational political units. This seems to be a task, again, for the Nigerian legislature to undertake. As a part of this new, universal definition, a process for becoming an indigene should be adopted. Similar to a naturalization process, this title can be allocated after a certain residency period or after a series of requirements have been met.

One means of ‘softening’ indigeneity, if wholesale reform proves too politically challenging is the institution of exceptions to indigeneity in times of crisis. The scale of displacement across northern Nigeria is a national crisis and makes it likely that indigeneity will be used to further victimize vulnerable displaced populations. Similar to the declaration of a State of Emergency by the federal government, which impacts the policies at the state and LGA level, the federal government should declare a temporary suspension of indigeneity requirements for those displaced in the North East.

Reduce barriers to land registration and engage in programs to encourage women to register land

Land registration in Nigeria is overly complicated and burdensome. Simplifying this process, and encouraging the registration of land by women, has the potential to reduce forum shopping to resolve land disputes. The Nigerian legislature should revisit the terms of the Land Act that was incorporated into the Constitution.

Incentivizing land registration through the government requires not only a simplification of the process, but also a reduction in the barriers to land registration – including fees and temporal barriers. The resettlement of populations provides the government with an opportunity to assert itself as a legitimate arbiter of land disputes. This requires, however, that a simplified land tenure system be established prior to widespread resettlement.

Land tenure reform is necessary across the country; however, the Boko Haram crisis and its aftermath provide a region-specific crisis to initiate larger reform. The post-conflict land reform process is a particularly complicated but necessary endeavor. In the absence of oversight (from both domestic civil society and international partners and advocates) the process can quickly become politicized and “a means to reward allies, acquire or secure access to resources, manipulate elections, or create ethnically homogenous areas” (Elhawary and Pantuliano 2013). Reviews of other post-conflict land tenure programs have noted that “conflict often breaks down the institutional infrastructure and destroys the human resources on which the administration and enforcement of a legal-political order relies. This is likely to be especially acute for tenure regimes, given the important role of documents or informal institutional memory in their management” (Elhawary and Pantuliano 2013). Deploying well-trained civil servants to help reconstruct land tenure programs, under the guidance of a national land tenure program can help reduce discrepancies between customary arrangements and governmental standards and facilitate redevelopment.