Hello deeyou-ga,
Several governments and well-respected international organizations
have looked into the status of Nigeria's Decree 33, and have concluded
that there is some momentum in the country for eliminating the decree,
but that its current status is unclear.
Observers have noted that there are few, if any, known cases in recent
history of anyone actually being arrested under the provisions of
Decree 33, although there are cases that have occured in the past.
However, that does not mean that returning Nigerians with a drug
arrest record in another country are necessarily off the hook.
I've provided links, excerpts, and a few of my own observations,
below. I trust these will provide you the information you need to
fully address your question.
However, before rating this answer, please let me know if you need any
additional information. Just post a Request for Clarifcation, and let
me know how I can assist you further.
All the best,
pafalafa-ga
==========
[The United National Office on Drugs and Crime is an authoritative
source of information on the drug laws, policies and practices in
place around the world. Their report on Nigeria notes that older
decrees, including Decree 33, are under review, and implies that they
will eventually be made law. But the actual fact seems to be that the
current status is a bit up in the air]:
http://www.unodc.org/nigeria/en/govt_response.html
United Nations Office on Drugs and Crime
Nigeria Country Profile
Legal Framework
The Nigerian drug policies are aligned to the International
Conventions of the United Nations, such as the 1961 Convention on
Narcotic Drugs as amended by the 1972 protocol, the 1971 Convention on
Psychotropic Substances and the 1988 Convention Against Illicit
Traffic of Narcotic and Psychotropic Substances. These conventions
have been given local adaptation and are aimed at a balanced approach
in formulating drug control legislation in the country.
The existing drug control laws in Nigeria are primarily four decrees:
Decree 48 of the 1989 which established the NDLEA, which is
responsible for the prevention of Illicit cultivation, production,
manufacture and trafficking in and abuse of drugs; Decree 33 of 1990
which targeted Nigerians convicted overseas for drug offences and
provides for prison sentence and forfeiture of assets and properties
on 'bringing the name of Nigeria into disrepute'; Decree 15 of 1993
which set-up the NAFDAC, a parastatal under the Federal Ministry of
Health to authorize (control) the importation and exportation of
narcotic drugs, psychotropic and other controlled substances, to
ensure that their use are limited to medical and scientific purposes.
NAFDAC is also mandated to collaborate with NDLEA in measures to
control drug abuse in the country; and Decree 3 of 1995, which
addresses the problem of drug money laundering.
Following the installation of democratic government in Nigeria, these
decrees and other policy documents have come under the purview of the
national legislature and are being reviewed in line with the
democratic principles, and invariable will become government acts and
policies. Presently, in both the Senate and Federal House of
Representatives, there are committees on Narcotic Drug and Financial
Crimes who will give in-depth attention to drug issues and affect the
required reforms.
==========
[Another document from the same UN office acknowledges "gaps" in how
Decree 33 is carried out, a diplomatic way of saying there hasn't been
much activity under this decree]
http://www.unodc.org/nigeria/en/component_3.html
Nigeria
Programme on Policy Support, Legislation and Advocacy
The new democratic governance in Nigeria has come after the second
protracted military interregnum in 40 years of its post-colonial
independence. Prior to the present dispensation, the legal instruments
supporting drug control programmes were mainly 5 military decrees,
namely: decree 48 of 1989 establishing the NDLEA for the prevention of
cultivation, production, manufacture, trafficking and abuse of illicit
drugs; decree 33 of 1990 amending decree 48 and aimed at Nigerian
caught for dug offences abroad for 'bringing the name of the country
to disrepute'; decree 15 of 1993 establishing NAFDAC; decree 3 of 1995
on money laundering; and decree 62 of 1999 amending previous decrees
for effect within a democratic setting.
The implementation of these decrees has shown gaps in articulation,
which has hampered the effectiveness of drug control programme in
Nigeria. Hence, reforms of existing drug control laws and policies are
a priority especially now within the democratic setting and the
appropriate legislative institutions. In addition, most of the
magistrates, judicial officers and Judges need to update on the drug
control legal developments for effective job performance.
==========
[A strange Q&A document from the US immigration services, dated 1999,
directly addresses your question, even though the information is
somewhat dated -- apparently returning nationals with a drug offense
were routinely detained, but rarely brought to trial under charges
related to Decree 33]:
http://uscis.gov/graphics/services/asylum/ric/documentation/NGA99003.htm
US Citizenship and Immigration Services
Date: 8 March 1999
Subject: Nigeria: Information on whether or not a deportee with a past
drug conviction in the United States will be tortured in prison upon
return to Nigeria under the present interim government of Abubakar
From: INS Resource Information Center
1.) How pervasive/widespread is torture in Nigerian prisons today?
Nigeria is known for having one of the worst prison systems in the
world, resulting in a high proportion of inmates' deaths (IPS 6 Jan.
1999). A representative from Human Rights Watch (HRW) states that
prison conditions are "?generally appalling/life threatening [and]
torture of criminal suspects by the police is common," adding that
torture is more common by police than prison officials (Manby 2 Mar
1999).
2.) Would a detainee with a past drug conviction overseas be tortured
upon return to Nigeria under the present government of Abubakar?
The government has not repealed Decree 33, so people convicted of drug
related offenses are detained at the detention center (Hajj Camp)
which is very close to the Murtala Mohammed International Airport.
From these centers, detainees will be arraigned for trial on the
grounds of bringing the name of Nigeria into disrepute (CLO 3 Mar
1999). A representative from HRW states that it is common of deportees
with drug convictions to be detained indefinitely by the National Drug
Enforcement Agency (NDLEA) on return to Nigeria, unless the detainee
has the means to buy himself out (Manby 2 Mar 1999).
A representative of Amnesty International (AI) says that there are no
signs of deportees being charged and sent to trial on Decree 33.
Adding however, that since Nigeria has a political interest with the
United States, they are more likely to be harsher towards a drug
deportee (Pennington 10 Feb. 1999).
==========
[Another document from US immigration officials relates the painful
case of a Nigerian national who was denied amnesty in the US, despite
her claims that she would be jailed and possibly tortured under Decree
33 -- the US officials found there was not enough evidence to
substantiate her fears, either of being jailed, or of being tortured,
and that it was not clear whether Decree 33 was still in force]:
http://www.immigration.com/newsletter1/bianizeria.pdf
September 24, 2002
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
[Sumary]:
A Nigerian convicted of a drug offense in the United States failed to
establish eligibility for
deferral of removal under Article 3 of the Convention Against Torture
because the evidence
she presented regarding the enforcement of Decree No. 33 of the
Nigerian National Drug Law
Enforcement Agency against individuals similarly situated to her was
insufficient to
demonstrate that it is more likely than not that she will be tortured
by a public official, or at the
instigation or with the consent or acquiescence of such an official,
if she is deported to Nigeria.
[Excerpts from the case]:
She testified that because of this conviction she would be immediately turned
over to drug enforcement authorities and imprisoned if she is returned to
Nigeria, that she would be in jail for years before she would be able to see
a judge, that she was subject to a mandatory 5-year term of imprisonment, and
that she would be subjected to torture while jailed.
When asked how she knew that this would occur, the respondent referred
to Decree No. 33 and also testified that some years before she had
communicated with an unnamed Nigerian friend who had been convicted of
a drug offense in this country and then returned to Nigeria. The respondent
indicated that she spoke by telephone to her friend and her friend?s parents in
1995. She was told that her friend had been detained upon her return
to Nigeria in 1995,
that her family had had to bring food and medication to the
jail and pay money for her protection, that she slept on the floor, and that
?you probably get raped and beat down? by the guards because they have
authority to do ?whatever they can do.? Her friend remained in jail for
2 months until her family paid a bribe to get her released. The respondent did
not know whether her friend had gone before a judge before being
incarcerated or whether she had been raped in prison.
...The Service filed a memorandum in which it noted that it was
unclear whether Decree No.
33 was still in effect or had been repealed by the 1999 Constitution of the
Federal Republic of Nigeria. In a decision dated January 5, 2000, the
Immigration Judge found the respondent removable and denied her application
for deferral of removal, concluding that, even if she were imprisoned under
Decree No. 33, the respondent had failed to establish that it was more likely
than not that she would be tortured in prison.
...In our decision of September 6, 2000, remanding the case to the
Immigration Judge, we noted that the Immigration Judge should more
specifically address the respondent?s claim that it was more likely than not
that she would be imprisoned if returned to Nigeria. On remand, the
Immigration Judge advised the parties that he expected that issue to be
addressed in their submissions. Although the respondent submitted additional
documentation regarding country conditions in Nigeria and evidence in
response to the Service?s claim that the new Nigerian constitution may have
repealed Decree No. 33, nothing further was offered with regard to the
manner of enforcement of this decree. It is unclear whether the respondent
chose to rest on the evidence of record or was unsuccessful in uncovering any
additional information relevant to this matter. Whichever was the case, the
respondent?s evidence regarding the manner of enforcement of Decree No. 33
largely remains that which was presented at the 1999 proceedings. We find
this evidence insufficient to demonstrate that it is more likely than not that the
respondent will be detained or imprisoned if she is returned to Nigeria.
The actual status of Decree No. 33 is not entirely clear on the record
before us, but we will assume that it has not been repealed and is
enforceable. However, even assuming that such is the case, there is little
evidence of record on which to base any meaningful conclusion regarding the
extent to which this provision is presently enforced, and how and against
whom it is enforced.
[Several member of the board reviewing this case dissented from the
majority opinion, arguing that there was enough information to make
the case that Decree 33 posed a threat]:
CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg,
Board Member
I respectfully concur in part and dissent in part.
...However, measured by the proper standard, the evidence reflects that it is
more likely than not that the respondent will be detained and imprisoned
under Decree No. 33 or other existing enforcement practices in Nigeria
because she has been convicted of drug trafficking, and that the treatment she
will be subjected to once in prison will amount to torture.
.....notwithstanding the majority?s protestations, we may take
administrative notice of the fact that international journalists continue to
report the aggressive enforcement of Decree No. 33....
First, a recent news report indicates that, as a result of a
Nigerian Federal High Court ruling that the ?Decree does not portend double
jeopardy,? the constitutionality of Decree No. 33 has been affirmed.
Sylvester Ebhodaghe, NDLEA arrests 779 suspected drug peddlers, The
Guardian web site (Lagos, Nigeria), Aug. 4, 2000...
Second, recent news reports confirm that enforcement is even greater under
the present Obasanjo regime. For example, on June 17, 2002, the Xinhua
News Agency reported that ?[t]o stem the spread of the menace, the
incumbent administration undertaken by President Olusegun Obasanjo has
been keeping up its fights against drug abuse and trafficking among Nigerians
by all legitimate means.? 110 Drug Traffickers Arrested in Southern
Nigeria, Xinhua News Agency, June 17, 2002...
Third, women are not exempt from being targeted and punished as drug
smugglers. As Newsday, Inc. reported in a May 6, 2002, article, the Nigerian
drug enforcement agency charged nearly 100 women with smuggling drugs in
2001, and this year?s arrests even included a 64-year-old grandmother and a
flight attendant for Nigerian Airways. Samson Mulugeta (Africa
Correspondent), Nigerian Drug Rings Using Creative Tactics/Enlist
non-profile carriers to help smuggle heroin, Newsday, Inc., May 6, 2002...
These news articles reflect that the decree exists, that it is
actively enforced by the Obasanjo government, and
that it is enforced against women.
==========
[This recent posting does not concern Decree 33, but it includes
language that echoes the language of Decree 33. To me, this suggests
that the underlying concept of Decree 33 -- that if you break the law
outside of Nigeria, you can be prosecuted again when you return to
Nigeria -- is still intact, and considered a valid legal principle]:
http://www.unicri.it/nigeria/nigeria_law_trafficking.pdf
TRAFFICKING IN PERSONS (PROHIBITION) LAW ENFORCEMENT AND ADMINISTRATION
...Where a person is convicted outside Nigeria for an offence relating
to trafficking in persons, he shall, on his return to Nigeria after
serving his sentence in that country, be liable to be tried in Nigeria
for bringing the image of Nigeria into disrepute, and shall on
conviction, forfeit his assets to the Federal Government in addition
to serving a term of imprisonment not exceeding two years.
==========
[The posting at this site mentions that Decree 33 was challenged in
court in 2000, but there has been no news since that time as to the
disposition of this challenge, or of the Decree itself]:
http://www.iss.co.za/pubs/ASR/9No5And6/Redpath.html
Forfeiting rights?
Assessing South Africa's asset forfeiture laws
Published in African Security Review Vol 9 No 5/6, 2000
Decree No 33 of 1990 is an amendment to Decree 48. Decree 33 creates
the offence of bringing the name of Nigeria into disrepute. Section
12A(2) of the decree stipulates that any Nigerian found guilty of a
drug-related offence outside the shores of Nigeria has committed an
offence, and subsection 3 sanctions such an offence with a five-year
jail term, while the person?s assets may be subjected to forfeiture.
All that needs to be shown is that there was a criminal conviction in
another jurisdiction, without requiring proof to the criminal standard
of the original offence in terms of Nigerian criminal law.
Decrees are laws made under the military regime. Since democratic
government was instituted in Nigeria in mid-1999 under President
Olusegun Obasanjo, it was decided that all decrees made until 1990
would become acts. Decrees after 1990 would have to be assessed and
passed by the Nigerian Federal Parliament, but remain in force until
thus considered. Decree 33 of 1990 is therefore still in force.
However, the Constitutional Rights Project, a Nigerian
non-governmental organisation (NGO), filed a suit18 early in 2000 at
the Federal High Court in Lagos, challenging the legality of Decree
33. In the suit, the plaintiff is seeking an order of the court
declaring the Decree null and void on the ground that it contravenes
section 36(9) of the 1999 Nigerian Constitution. This section provides
that:
"no person who shows that he has been tried by any court of competent
jurisdiction or tribunal for a criminal offence and either convicted
or acquitted shall again be tried for that offence or for a criminal
offence having the same ingredients as that offence save upon the
order of a superior court."
==========
[A plea from 2001 to not repatriate a Nigerian national, again, out of
concern for Decree 33]:
http://www.ncadc.org.uk/archives/filed%20newszines/news23/austria.html
September - 2001
Anthony Onyeij Must Stay
...Should Anthony be deported to Nigeria, he would yet again be facing
imprisonment. There have been a number of cases of deportees to
Nigeria being immediately arrested at Lagos airport, on the basis of
the infamous "Decree 33" from 1990, which calls for a five year prison
term for those "bringing the good name of Nigeria into disrepute".
...It should also be mentioned at this point that Amnesty
International still regards detention conditions in Nigerian prisons
as "life-threatening". Nigerian Human Rights organizations such as
Civil Liberties Organisation report more than 10,000 deaths over the
last five years. In Lagos province alone, about 20 prison inmates per
week (!) are dying due to inadequate supplies, untreated illnesses and
epidemics.
==========
[A very recent country report from the UK reiterates much of the
information I've provided already, but I wanted to include it here
since it is an official 2004 report]:
http://www.ind.homeoffice.gov.uk/ind/en/home/0/country_information/country_reports.Maincontent.0020.file.tmp/Nigeria%20April%202004.pdf
NIGERIA
COUNTRY REPORT
April 2004
Home Office, United Kingdom
Anti-Drug Legislation
5.24 According to the United Nations Office on Drugs and Crime, Decree 33 of 1990
remains in operation. Its Nigerian Country Profile states that ?The
existing drug control
laws in Nigeria are primarily four decrees: Decree 48 of the 1989
which established the
NDLEA, which is responsible for the prevention of Illicit cultivation, production,
manufacture and trafficking in and abuse of drugs; Decree 33 of 1990 which targeted
Nigerians convicted overseas for drug offences and provides for prison sentence and
forfeiture of assets and properties on 'bringing the name of Nigeria
into disrepute';
Decree 15 of 1993 which set-up the NAFDAC, a parastatal under the
Federal Ministry of
Health to authorize (control) the importation and exportation of narcotic drugs,
psychotropic and other controlled substances, to ensure that their use
are limited to
medical and scientific purposes. NAFDAC is also mandated to collaborate with NDLEA
in measures to control drug abuse in the country; and Decree 3 of 1995, which
addresses the problem of drug money laundering?. [6] (p2)
5.25 Decree 33 allows for the detention of a Nigerian who has brought
the country into
disrepute. This decree is aimed at those who traffick in illicit
drugs, and is subject to
Judicial oversight. However, this decree allows for the detention of
people, who may
have already completed a sentence abroad, upon their return to Nigeria. [107] This
measure is a response to the serious drug trafficking problem that
exists in Nigeria. The
problem of the illicit drug trade, is one that the Nigerian
authorities are attempting to
address.
==========
[Lastly, there is this report from two years ago from a conference
held on conditions in Nigeria. It includes, perhaps, the most
common-sensical assessment of the status of Decree 33 that you're
likely to come across, and it comes from a country expert on Nigerian
law enforcement policies]:
http://www.ecoi.net/pub/mv154_Ngr-cois-2002-rep.pdf
Country Report
4.2 Decree 33 ? Punishment of Nigerians convicted for drug offences committed
abroad
With regard to the question whether a Nigerian citizen who has served
a sentence for a
drug-related crime in a European country would be subjected to a
conviction based on
Decree 33 ("Bringing Nigeria into disrepute" ? punishable with up to
five years of prison
and loss of assets), Mr Jockers responded that he is not aware of any
such convictions.
He also does not know whether the Nigerian police or the embassies would dispose of
sufficient resources to follow up such cases. Most likely, the person
in question will be
handed over to the police and beaten up very severely, ending up in a
suburb of Lagos
with no clothes and their money taken away.
When returning convicted drug-offenders to Nigeria, European governments should
ensure monitoring by their embassies.
==========
I trust this provides you the information you were seeking. But as I
said earlier, just let me know if you would like any clarification of
the information here, or if you need additional information.
All the best,
pafalafa-ga
search strategy: Searched Google and several news databases for [
Nigeria decree 33 drug ] |
,
0 Comments
)