Chad’s new counterterrorism law: A step in the right direction?

First published by ISS Today

In early April 2020, 44 Boko Haram suspects in pre-trial detention died in a prison cell in N’Djamena, Chad. They were part of a group of 54 alleged militants arrested in March following Operation Boma’s Wrath led by Chad’s armed forces.

In unclear circumstances surrounding what led to the mass deaths, autopsies were conducted on four of the bodies. The cause of death was reported as asphyxia or cardiac arrest. The remaining 40 deceased were hurriedly buried without a post-mortem examination. According to Nodjitoloum Salomon, Group of Human Rights Associations of Chad chair: “It’s inconceivable that 44 people can die under such mysterious circumstances in a government prison.”

These deaths highlight the false dichotomy between the state’s fight against terrorism and its obligation to respect human rights and the rule of law. Human rights are wrongly set up as acceptable trade-offs for national security.

On 28 April, Chad’s National Assembly adopted a new counterterrorism law that removes the death penalty. The country accepted the recommendation to abolish the death penalty in 2018, following the Universal Periodic Review of the United Nations Human Rights Council. This included for crimes linked to terrorism. But will this be enough to protect the rights of terror suspects? And will it restore Chadians’ trust in its military and judicial systems?

As with most African states faced with the threat of violent extremism, military expenditure is high – 14% of Chad’s general government expenditure goes to the armed forces. But military might and declarations of emergency powers are eroding fundamental human rights in unjustified ways. All this weakens the rule of law, and promotes a recurrence of violence.

Chad’s criminal justice system has a poor record when it comes to a rights-based approach to Boko Haram suspects. In August 2015, it was unclear how a swift three-day trial ended in the execution of 10 Boko Haram suspects or whether this trial conformed to international human rights norms.

The United Nations’ Special Rapporteur on extrajudicial, summary and arbitrary detentions Christof Heyns issued a statement, saying that: “The death penalty is an extreme form of punishment and, if used at all, should only be imposed after a fair trial that respects the most stringent due process guarantees as stipulated in international human rights law.”

There are exceptional circumstances where certain rights are temporarily curtailed. The right to life is however absolute. The state cannot engage in extrajudicial killings or summary execution of its citizens despite their involvement in terrorist activities.

Military prowess alone won’t stop violent extremism. Criminal and other justice systems founded on the respect for human rights and the rule of law should complement military responses to terrorism. But in Chad’s case, the death of 44 suspects in prison while awaiting trial does not inspire confidence in the complementary nature of the criminal justice system.

Chad’s trajectory could however be on the mend. Its decision to abolish the death penalty is good news considering that the government rejected all recommendations from the 2013 UN Human Rights Council review.

A rule of law-based criminal justice response to terrorism strengthens state legitimacy by ensuring those engaged in combating terrorism remain accountable. As a part of the arsenal against terrorists, criminal justice actions such as arrest and fair trial, strip terrorists of their false badge of honour and delegitimise their status as fighters in a just war.

Whether the 44 dead Boko Haram suspects were poisoned and thus extra-judicially killed in custody or committed suicide, the Chadian authorities should take immediate steps to bring those responsible to account. Decisive and quick action is required in this situation.

Chad’s Ministry of Justice has opened an inquiry into the matter, but civil society organisations are concerned about the outcome of that process. Nodjitoloum says ‘it is imperative that an independent inquiry is opened to determine the circumstances that led to the deaths of all the suspects and to establish who is responsible for the deaths.’

While a prisons oversight body exists in Chad, it is under the direction of the prosecutor at the Ministry of Justice. Due to the potential conflict of interest, civil society favours an inquest that has the international community involved.

To support the gains made in the abolitionist law on terrorism offences, further criminal justice reform is required in Chad. Decoupling the prisons oversight mechanism from the Ministry of Justice and the office of the prosecutor is imperative. Such an independent body could supervise conditions of detention and incarceration of terror offence suspects and make reparation orders when the rights of detainees and prisoners are violated.

These criminal justice challenges are not unique to Chad. Several African states are grappling with the management of trials for suspected extremists. What is unique to Africa is that the trials are conducted en masse.

The deliberate under-resourcing of criminal justice systems in favour of military responses is antithetical to genuine peace and security for affected communities. African countries need to incorporate criminal and other justice responses in the fight against terrorism and ensure security forces perform their tasks more efficiently, accountably and transparently. DM

Allan Ngari is a Senior Researcher, Complex Threats in Africa, ISS Pretoria.