Responses to Information Requests

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Police Procedures to Investigate Same-sex Activity

In a telephone interview with the Research Directorate, the Nigeria Country Director of Population Council, an organization that works "to address HIV and AIDS among key populations" (Population Council n.d.), indicated that the police may investigate or pursue someone for same-sex activity, if the person is "caught in the act," or the police find written materials or photos on their phone that implicates the person, or it could be arbitrary, based on the person's appearance or mannerisms (ibid. 24 Oct. 2016).

In correspondence with the Research Directorate, the Executive Director of The Initiative for Equal Rights (TIERs), a Nigerian-based NGO founded in 2005 that works to "protect and promote the human rights of sexual minorities nationally and regionally" (TIERs n.d.), stated that many arrests related to same-sex activity are arbitrary, done out of police suspicion, without a clear justification for the arrest (ibid. 24 Oct. 2016). In correspondence with the Research Directorate, a legal practitioner in Nigeria, who is also the secretary of the Interfaith Diversity Network of West Africa [1], similarly stated that "a mere allegation or accusation that a person is engaged in same-sex sexual relations is enough proof for the police without investigation that the person is guilty[,] especially when the person's [appearance] and mannerism[s] [do] not conform to the general norm" (Legal Practitioner 24 Oct. 2016).

A 2015 joint report by PEN American Center, PEN Nigeria and the Leitner Center for International Law and Justice entitled Silenced Voices, Threatened Lives: The Impact of Nigeria's Anti-LGBT Law on Freedom of Expressions [2], similarly indicates that, according to a media source, "[t]here have been reports of vigilante groups rounding up suspected LGBTI people and turning them over to the police" (PEN et al. 29 June 2015, 11).

In October 2016, Human Rights Watch produced a report about the impact of Nigeria's Same Sex Marriage (Prohibition) Act (SSMPA), which involved field research in Abuja, Lagos, and Ibadan and interviews with 73 LGBT Nigerians, as well as representatives from 15 Nigerian-based NGOs (Human Rights Watch Oct. 2016, 11). Human Rights Watch interviewed 17 LGBT people who had been arrested by the police after the passage of the SSMPA, who described cases such as being stopped by the police on the street, being referred to the police by individuals, and instances where the police raided gatherings, such as a police raid on a birthday party in Ibadan and a police raid on an "HIV services and treatment" meeting in Abuja (ibid., 34-38).

The Legal Practitioner stated that sometimes someone who confesses to same-sex activity to the police is subjected to blackmail and extortion and may be "coerced into outing other persons believed to be engaged in same-sex sexual relations" (24 Oct. 2016). The report by PEN et al. states that there have been reports of the police arresting people suspected of same-sex activity, and then finding their contacts on their phone and arranging meetings where they further arrest their contacts (PEN et al. 29 June 2015, 14). The same source reports that there have been cases of individuals using social media to arrange meeting someone LGBT, who they then extort, threatening to turn them over to the police if they do not pay (ibid., 18). Human Rights Watch reports of a case in which a gay man met up with another man who he met online, but when he arrived at the person's house, someone who he believed to be a police investigator was there who robbed him and forced him to go to the police station, where he was beaten; after three days in detention he was released after paying US$48 to the officer in charge of the station (Oct. 2016, 37-38).

According to The New York Times, the Nigerian police routinely stop people suspected of being LGBT and "search for incriminating images and chats on their cellphones" (21 Dec. 2015). A gay man from Lagos reportedly told Human Rights Watch that the police "regularly stop and search anyone who appears to be gay, based on dress or physical appearance," and that they search the person's phone for incriminating information or images and threaten to detain the person (Human Rights Watch October 2016, 40). According to the Executive Director of TIERs, the police can make arrests based on contents found on a person's phone, such as photos or videos suggesting same-sex activities (24 Oct. 2016). In correspondence with the Research Directorate, the Organizational Director of Queer Alliance Nigeria, "a human rights, health advocacy and support group for the LGBTI community in Nigeria" (QAYN n.d.), stated that "there are no specific documents" such as warrants of arrest used by police, and that items that may be used in cases related to same-sex activity include other private items from the scene of arrest, such as photographs, condoms, videos, leaflets with LGBT information, or female accessories in the possession of a male (Queer Alliance Nigeria 26 Oct. 2016).

The Organizational Director of Queer Alliance Nigeria indicated that the police "sometimes use force and invasion of privacy" when investigating individuals for suspected same-sex activity (ibid.). The Legal Practitioner said that the police use "intimidation, torture and victimisation" when investigating or pursuing individuals for same-sex activity (Legal Practitioner 24 Oct. 2016). The same source explained that the police use such tactics to get the person to confess, "usually with a threat of exposure to families, religious relations and place of work" (ibid.). Similarly, the Country Director of Population Council noted that the police may subject a person suspected of same-sex activity to harassment, physical abuse, detention, or extortion during the investigation (24 Oct. 2016). Human Rights Watch found "a pattern of arbitrary arrests and extortion" after the SSMPA was passed and that LGBT people who they interviewed "had been humiliated, physically abused and tortured by police while in police custody" because of their suspected sexual orientation (ibid., 36-37).

The Executive Director of TIERs indicated that most cases related to same-sex activity do not go to court and the police will arrest the person based on suspicion (TIERs 24 Oct. 2016). He explained that the general procedure that is supposed to be followed is for the person to be charged to court within 24 hours of arrest; however, this does not happen in most cases of detention related to real or perceived sexual orientation, and many people are detained for days or weeks without evidence or due process (ibid.). Human Rights Watch provides examples of several accounts in which men suspected of being gay were detained for multiple days until they, or someone they knew, paid off the police to have them released; none of the individuals interviewed by Human Rights Watch who were detained were formally charged with any offence (ibid., 37-39). The Country Director of Population Council indicated that often the person needs to call a friend or family member to pay the police in order to be released from detention, which often involves disclosing their sexual orientation (24 Oct. 2016).

2. Police Issuance of Warrants of Arrest or Other Documents

Sources indicate that the police usually do not issue a warrant of arrest in cases related to same-sex activity (Queer Alliance Nigeria 26 Oct. 2016; TIERs 24 Oct. 2016; Population Council 24 Oct. 2016). However, the Country Director of Population Council said that people of the "higher class" who know their rights will often demand an arrest warrant, while there are usually no documents for people of "lower classes" (ibid.). According to the legal practitioner, there is "hardly any documentation" involved in police investigations related to same-sex activity unless it goes to court (24 Oct. 2016). The Executive Director of TIERs stated that, in all the cases related to same-sex activity that the organization has documented or worked on, none of their clients were presented with an arrest warrant or were given any documents containing information about their investigation or arrest (24 Oct. 2016).

Sources indicate that a person being investigated by the police for same-sex activity is often required to complete a "statement" (Queer Alliance Nigeria 26 Oct. 2016; Population Council 24 Oct. 2016) at the police station (ibid.). The Country Director of Population Council said that it is similar to a confession, and the police "may force them to write it and may even dictate what to write" (ibid.). The Legal Practitioner similarly indicated that there is "usually no documentation received or issued" by police, except where the suspected person may be "coerced into making a damaging confessional statement," which may cause the matter to proceed to court (24 Oct. 2016). The Organizational Director of Queer Alliance Nigeria said that the statement is an account of the activities that warranted the police investigation (Queer Alliance Nigeria 26 Oct. 2016). The same source explained that the person is "made to sign" the statement, a case file is opened, and it is assigned to an investigating officer (ibid.).

3. Obtaining Documentation from the Police

Sources report that if a person makes a confessional statement to police about their involvement in same-sex activities, the person is not given a copy of it when it is made (ibid.; Legal Practitioner 25 Oct. 2016; Population Council 24 Oct. 2016). According to the Country Director of Population Council, the statement is kept by the police and put in their "notebook" (ibid.). The Organizational Director of Queer Alliance stated that the person's lawyer can request a copy of their client's statement to the police, particularly if the case ends up in court (26 Oct. 2016). The legal practitioner similarly said that if the case goes to court, the person's legal representative will have access to the confessional statement (Legal Practitioner 25 Oct. 2016).

According to the Legal Practitioner, if the case does not go to court, it may still be possible to request the confessional statement, particularly if there is "urgency" surrounding the issue, such as "aiding in the prosecution of a criminal matter," but it would be necessary to go through a legal representative and require payment of a fee (ibid.). The same source indicated that the request for the document would need to be addressed to the Inspector General of the Nigerian police asking for the division/police station where the statement was made to send a copy to the legal representative (ibid.). The Legal Practitioner stated that such a request to the police would be "a very tedious and onerous task," due to bureaucracy and a "poor record keeping system" (ibid.).

According to the Country Director of Population Council, if the person has a lawyer, they can "demand" the documents related to the investigation from the police (24 Oct. 2016). Without providing details, the Executive Director of TIERs stated that under the law, when someone is arrested, their lawyer has a right to request the arrest warrant and other related documents, "but the arrested person will not be able to request for this directly from the police" (24 Oct. 2016).

According to the Legal Practitioner, if the matter is charged to the court, then one can obtain the First Information Report (FIR) or the "charge sheet" (Legal Practitioner 24 Oct. 2016). She said that if the matter has gone to court, it is "easier to obtain a copy of the FIR or charge sheet," which can be obtained either by a lawyer or directly by the claimant, who must explain why it is necessary to obtain the document, and pays a processing fee (ibid. 25 Oct. 2016). The same source stated that the FIR or "charge sheet" can also be obtained from abroad; the request would need to be sent directly to the "particular court registrar, asking that the request be brought to the attention of the presiding judge," and would need to include the reason why the documents are needed as well as the necessary processing fees (ibid.). Further and corroborating information about obtaining court documents from abroad could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] The Interfaith Diversity Network of West Africa is a "regional network of activists, faith-based individuals, LGBTQI persons, advocates and individual activists working for inclusion of diverse persons to create a world governed by respect and dignity" that was established in 2016 and includes members from Nigeria, Togo, Ivory Coast, Ghana and Liberia (Erasing 76 Crimes 16 Sept. 2016).

[2] PEN American Center is the largest branch of PEN International, a literary and human rights organization that "works in more than 100 countries to protect free expression and to defend writers and journalists who are imprisoned, threatened, persecuted, or attacked in the course of their profession" (PEN et al. 29 June 2015). PEN Nigeria is "an association of writers committed to the promotion of literature and the defense of freedom of expression" (ibid.). The Leitner Center for International Law and Justice is a law-school based human rights program affiliated with Fordham Law School in New York (ibid.). The report is based on "interviews, a review of secondary sources, examination of media reports, and contributions from Nigerians writers, artists and activists" (ibid., 6).

References

Erasing 76 Crimes. 16 September 2016. Colin Stewart. "New W. African Interfaith Group Fights Anti-LGBTI Bias." [Accessed 26 Oct. 2016]

Human Rights Watch. October 2016. "Tell Me Where I Can Be Safe": The Impact of Nigeria's Same Sex Marriage (Prohibition) Act. [Accessed 25 Oct. 2016]

Legal Practitioner. 25 October 2016. Correspondence with the Research Directorate.

Legal Practitioner. 24 October 2016. Correspondence with the Research Directorate.

The New York Times. 21 December 2015. Norimitsu Onishi. "American Support for Gay Rights May Leave Africans Vulnerable." (Factiva)

PEN American Center, Leitner Center for International Law and Justice, and PEN Nigeria. 29 June 2015. Silenced Voices, Threatened Lives: The Impact of Nigeria's Anti-LGBT Law on Freedom of Expression. [Accessed 24 Oct. 2016]

Population Council. 24 October 2016. Telephone interview with the Nigeria Country Director.

Population Council. N.d. "Overview." [Accessed 26 Oct. 2016]

Queer African Youth Network (QAYN). N.d. "Queer Alliance Nigeria. Who We Are." [Accessed 31 Oct. 2016]

Queer Alliance Nigeria. 26 October 2016. Correspondence from the Organizational Director to the Research Directorate.

The Initiative for Equal Rights (TIERs). 24 October 2016. Correspondence from the Executive Director to the Research Directorate.

The Initiative for Equal Rights (TIERs). N.d. "Who We Are." [Accessed 26 Oct. 2016]

Additional Sources Consulted

Oral sources: Civil Resource Development and Documentation Centre; Committee for the Defence of Human Rights; International Center for Advocacy on the Rights to Health; National Human Rights Commission; two law firms.

Internet sites, including: Committee for the Defence of Human Rights; ecoi.net; Factiva; International Center for Advocacy on the Rights to Health; National Human Rights Commission; UN – Refworld.