Assessment of dispute resolution structures and HLP issues in Borno and Adamawa states, north-east Nigeria

Report
from Norwegian Refugee Council
Published on 25 Mar 2018 View Original

The armed conflict in the Lake Chad region has caused mass displacement in north-east Nigeria, forcing people to flee the violence and abandon their homes.

The majority of those displaced found shelter in “host” communities in safer locations. However, many people’s displacement is now stretching into three years or more, and the situation is exhausting their resources and those of the communities hosting them. This is leading to a number of challenges, among them an increase in disputes over housing, land and property.

The Norwegian Refugee Council (NRC) carried out an assessment across Borno and Adamawa states on the structures communities use to resolve disputes and how these are working with the arrival of so many internally displaced people. The results indicate that disputes over housing, land and property are undermining the self-reliance of internally displeaced people, making it harder for them to find shelter and gain or continue a livelihood, and exposing them to forced eviction and further displacement.

Executive summary

Armed conflict between Boko Haram and the Nigerian State in the north-east of Nigeria has resulted in significant displacement, with a total of 1.75 million internally displaced persons (IDP) in the region, over 90 per cent of whom are in the Borno, Adamawa and Yobe states.1 Disputes between IDPs and host communities around housing, land and property (HLP) issues have increased in frequency, with a particular impact on the most vulnerable among the displaced, such as widows and women in general. The most prevalent issues are challenges in paying rent leading to eviction and inappropriate treatment of tenants by landlords, such as arbitrary eviction and failure to maintain properties. This assessment represents an effort to understand both how dispute resolution structures in the concerned regions address such disputes, and what interventions by the Norwegian Refugee Council’s (NRC) information, counselling and legal assistance (ICLA) programme could support them to function more effectively and better advance the HLP rights of the vulnerable.

Dispute resolution in the region has three different approaches with three broad options available for dispute resolution. First, at the level of the family and community, there are those with no designated role but who are broadly trusted, including religious figures. Second, customary leaders with governance functions who also receive complaints and engage in dispute resolution and mediation, most notably ward leaders (‘Bulamas’ or ‘Mai Anguwa’) and village heads (‘Lawans’ or ‘Mai Jimila’). While the customary sector is acknowledged in elements of statute (see below), its effectiveness emerges from its legitimacy and credibility in communities. Third, the statutory legal sector, comprising the police and courts, where federal and state law engage with identification, investigation and resolution of disputes or complaints, as well as any state-provided service such as alternative dispute resolution (ADR) or legal aid services. There are also other actors such as women’s organisations that work on issues connected with dispute resolution but cannot properly be considered to offer dispute resolution themselves. These may be referred to as supportive actors. While the family, religious and customary forms of dispute resolution are primarily defined and enforced through their social legitimacy, the last has a legislative mandate. Islamic legal principles inform all three forms in north-east Nigeria, with the legal sector including an Islamic (‘Area’) Court.

The assessment indicated that HLP disputes limit IDPs’ access to agricultural land and shelter, inhibiting self-reliance following the loss of homes and livelihoods. IDPs remain at risk of forced eviction and further displacement. Most IDPs are now living in unfinished buildings or renting houses from private owners and their HLP rights within host communities are uncertain. Vulnerable households cannot afford to pay for legal advice or representation to realise their rights. IDPs face insecurity of tenure, including forced eviction, as a result of poverty, the actions of landlords, challenges to ensure that rented homes were properly maintained, as well as issues linked to inheritance and divorce. In the mediation of disputes over such issues, IDPs often perceived that, as guests, they were not entitled to challenge the decisions of landowners taken in respect of their own land and as such did not pursue dispute resolution. There was also a perceived gender dimension with women believing they were discriminated against when seeking to resolve such disputes, in terms of both not being welcome to represent themselves to relevant structures and of not being treated fairly when they were heard. Whilst IDPs were often displaced as entire communities and thus had access to their own traditional leaders, these were disempowered by the fact that they were on territory where other leaders had authority. The impotence of displaced customary leaders was a huge frustration to them.

It became clear that there were also HLP disputes emerging in areas of IDP return due to the period of displacement. As return increases there will likely be a corresponding rise in such dispute, emerging from land and property having been left by owners for a period and others – sometimes themselves displaced – using those assets.

In developing a typology of dispute resolution structures, we note that these exist within the family and community, alongside the religious, customary and statutory regimes.
As such, we define three categories of dispute resolution structure:

  • Actors in the community who use their position to support dispute resolution, including elders, religious leaders, and IDP and women’s representatives. These are structures whose function is driven both by the respect they have in the community and by tradition, and often gendered and age-based structures that privilege older men.

  • Customary structures defined by tradition and accessing local leaders with long family histories of governance roles that are highly formalised but unofficial. These structures include a hierarchy in which local customary leaders defer to those at a higher level constituting what resembles an appeals system. Whilst such leaders are acknowledged in statute, the system is independent of the legal system.

  • The statutory system, including the courts and official alternative dispute resolution.

The data revealed that both IDP and host populations – and both men and women – generally have great confidence in the customary dispute resolution structures, much more so than the statutory legal system. Customary structures link traditional governance at the ward and village level, with leaders close to the communities from which they come, to senior emirs. Dispute resolution involves the local leaders bringing the parties together, collecting evidence and talking with witnesses and making a decision that the disputants can choose to accept or not. This is framed by the Hausa term sulhu representing reconciliation and deriving from a community-based consensual process, in contrast to the adversarial approach of the statutory legal system. If either party is unhappy with the decision it can be taken up to the next level of traditional governance, analogous to an appeal process. There is interaction however between the statutory and customary systems with courts giving weight to decisions of the Bulamas and Lawans.

A novel element of the legal system is the Amicable Settlement Corridor (ASC) in Borno state, which offers services in mediation, arbitration and the use of sulhu – the latter the most commonly used and based on Islamic law. ASC services are free, in contrast to most use of statutory courts where lawyers’ fees must be paid and often additional charges through endemic corruption.

An important element to the analysis offered is the way in which disputants and complainants navigate between the three major forms of dispute resolution (familial/ community-based, customary and statutory). This reflects both the decisionmaking behaviours of persons to whom a range of options are available, but also the interconnected nature of dispute resolution in Nigeria. Like in many other former colonies, the well-established customary governance structures were kept in place and allowed to continue to operate, with statute (imported by British colonial powers) recognising elements, but not the entirety, of their authority, legitimacy and powers. Resolution of some forms of community-level disputes were part of this recognised authority and is reflect in some provisions. In addition, the ‘repugnancy test’, applied by British courts in a number of colonies, introduced a way in which the decision of customary leaders could be subject to the review of statutory structures. While the colonial history of the repugnancy test is not without difficulty, its residual effect appears to have allowed a continuing conversation between the various forms of dispute resolution. In the contemporary landscape of dispute resolution in north-east Nigeria, it offers an important route to ensuring that the options available to disputants and complainants both serve their interests but also are consistent with their rights.

The customary system was cited by most as their preferred route to dispute resolution, with one advantage being the ease of physical and financial access the structures offer: it was reported that ward and village leaders were readily accessible and did not demand fees, in contrast to the demands of the statutory system – in terms of both bribes and legal fees. Limitations on the perception of women of actual options available to them did arise, however, from senior family members and community elders potentially seeking to prevent women approaching such structures, with married women in particular expected to be represented by their husbands. The extent to which the quality of process offered by the customary structures was appropriate for women was disputed, with some arguing that male leaders are fair to women and others reporting that discrimination was routine. Given that the customary system is embedded in a patriarchal system, in which Islamic law is often misrepresented and governed entirely by men, it is unsurprising that cases were heard in the assessment of women not being treated fairly in dispute resolution.