The MMC recently published a blog post on the case of Law 2015-36 – Niger’s controversial anti-smuggling law – for the ASILE project, which seeks to analyze the EU role in international protection systems and the consequences thereof. This blog post was a case study on what can happen when mobility is criminalized and movement is therefore impeded, as was the case when this anti-smuggling law began to be enforced in 2016. The blog also helps make the linkage to European interest and involvement in these outcomes. The last paragraph asked the question of what would be next for the law given the recent military coup in Niger, and on 27 November, just three days after the blog was posted, the question was answered when the President of Niger’s National Council for the Safeguard of the Homeland issued Ordonnance No. 2023-16 abrogating the law and reversing convictions of smugglers that took place under the law.
Given European interests, influence and financing feeding into the law and its enforcement, it is not surprising that some have interpreted the abrogation of the law as a means for Niger’s junta to push back against Europe. This approach is in keeping with the junta’s overall orientation and appears to be a response to the suspension of aid and non-recognition of the new government by the European Union following the coup. In a similar vein the military government has also ended the EUCAP Sahel mission in Niger. While this is in line with its overall withdrawal from security cooperation agreements supported by Europe, it has particular significance for the fight against smuggling of migrants, as EUCAP Sahel supported Nigerien authorities in implementing Law 2015-36.
According to a key informant in Agadez, shortly after the law’s repeal was announced, smugglers who had taken their business underground following the enforcement of the law began to operate openly again, as they already had migrants in their charge who were waiting to be smuggled north. Other smugglers who had ceased operating following the law’s enforcement were said to be in a celebratory mood and preparing to re-start their activities. Initially vehicles transporting migrants more openly constituted a mix of Nigeriens and other nationalities, and international migrants are once again able to join the convoys heading north without fear of controls by the authorities.
News of the law’s repeal has been condemned by the EU. For instance, the EU Commissioner for Home Affairs, quoted by France 24, stated: “I’m very concerned about the situation now, and there is a huge risk that this will cause new deaths in the [Sahara] desert.” While policymakers raise real concerns about conditions that migrants face if they make it through Niger to Libya, statements about increased deaths in the desert appear to miss the point that prior to the law, smuggler transport through the desert happened in an organized manner in escorted convoys moving over well-traveled routes. Following the crackdown on migration that the law spurred, smugglers took to increasingly remote desert routes, leading to a six-fold increase in migrants deaths in the Sahara between 2015 and 2017, as well as increases in banditry and kidnapping for ransom.
Previous research carried out by the MMC in the Sahel has emphasized that while smuggler use often corresponds to dangerous journeys, it is not necessarily the smuggler who is making the journey dangerous. In fact, in surveys carried out in Mali and Niger with 661 migrants who had used a smuggler during their journey, 61% of respondents saw their smuggler as providing a service compared to only 3% who perceived their smuggler as a criminal. The survey also found that rarely did respondents see smugglers as having perpetrated abuses; only 6% of overall mentions of perceived abuses were attributed to smugglers, compared to 21% military/police, 21% criminals, 20% border guards/immigration officials, 14% armed groups/militias and 12% other migrants.
The law’s repeal happens at a time when language coming from European officials continues to emphasize criminalization of smuggling. The EU’s International Conference on a Global Alliance to Counter Migrant Smuggling in Brussels happened to take place on the day after the law was abrogated, and in the conference press release the EU Vice-President for Promoting our European Way of Life states: “In the EU we must take steps to ensure this heinous crime [smuggling of migrants] is properly and uniformly criminalized.” The quote from the EU Commissioner for Home Affairs in the same press release uses the word “crime” or “criminal” three times in four sentences.
Smuggling of migrants is a phenomenon with many faces – at times very dangerous and brutal – but not uniformly so. Thus, taking a “uniformly” criminalizing approach is likely to be counterproductive. Indeed, the case of Law 2015-36 provides a useful example of how a previously normal livelihood in northern Niger was driven underground, increasing linkages to trafficking of illicit goods and connections to more highly organized, criminal networks. Additionally, research suggests that the more difficult operating environment following the enforcement of the law led to state officials levying more substantial bribes from smugglers. Therefore, the net effect of Law 2015-36 appears to be an increase in criminality and corruption.
As long as irregular migration continues to be a preoccupation of rich countries, smuggling of migrants is always going to be on international agendas. But while cracking down on migrant smuggling may make for strong headlines and stirring rhetoric, the reality is often much more complicated, and Law 2015-36 serves as an important reminder of this truth.
Read the blog post below for more information on the history and consequences of Law 2015-36.
 Key informant interview for previous MMC research undertaken for UNODC; GI-TOC and Clingendael (2019) The Human Conveyor Belt Broken – assessing the collapse of the human-smuggling industry in Libya and the central Sahel