102/93 Constitutional Rights Project and Civil Liberties Organisation/Nigeria
Rapporteur:
17th Session: Commissioner Umozurike
18th Session: Commissioner Kisanga
19th Session: Commissioner Umozurike
20th Session: Commissioner Dankwa
21st Session: Commissioner Dankwa
22nd Session: Commissioner Dankwa
23rd Session : Commissioner Dankwa
24th Session : Commissioner Dankwa
Facts as submitted by the Author:
1. On 12 June 1993 a presidential election was held in Nigeria. Both foreign and local election monitoring groups observed the conduct of the election and were generally satisfied that the elections was free and fair.
2. Three days later, the National Electoral Commission began announcing the election results. The National Electoral Commission announced the results from 14 states including the Federal Capital Territory, Abuja, before it was restrained by an Abuja High Court from announcing the election results. On June 23 the Federal Military Government announced the annulment of the June 12 election results. Various reasons were given for this action. The communication alleges that these reasons included the fact that the military government was not happy that Abiola, the Social Democratic candidate, appeared to have won the election.
3. Dissatisfied with the decision of the Federal Military Government to annul election results, Abiola, together with the Governors of all the States controlled by the Social Democratic Party, went to the Supreme Court to seek redress. Shortly thereafter the Federal Military Government promulgated several Decrees ousting the jurisdiction of the courts and restating the decision of the Nigerian government to annul the election results.
4. Decree No. 41 of 1993 states in part:
"Notwithstanding anything contained in the Constitution of
the Federal Republic of Nigeria 1979, as amended, the African
Charters on Human and Peoples' Rights (Ratification and Enforcement)
Act or any other enactment, no proceeding shall lie or be instituted
in any court for, or on account of any act matter or thing done
or purported to be done in respect of this Decree."
5. The other Decrees promulgated are Presidential Election (Basic Constitutional and Transitional Provisions) (Repeal) Decree No. 39, 1993; Transition to Civil Rule (Disqualification and Prohibition of certain Presidential Aspirants)(Repeal) Decree No. 42 1993. These Decrees gave legal backing to the annulment of 12 June election results and ensure that the two presidential candidates were banned from contesting any Presidential elections in the country.
6. When activists and journalists protested the annulment of the elections, the government arrested and detained many persons, several of whom are named in the communication.
7. The government also seized thousands of copies of magazines. "The News" Magazine was proscribed by military decree in June 1993. Even prior to its proscription, copies of the magazine were seized by security agents and four of its editors declared wanted by the police. 50,000 copies of "Tempo", a weekly news magazine, were seized by security agents and the police.
The State party's response and observations:
8. The government has made no written submission in respect of this case. In an oral submission before the Commission (31 March 1996, Ouagadougou, Burkina Faso, Chris Osah, Head of Delegation), the government stated that the elections were held in circumstances that "the government felt were not propitious". The representative of the government stated that "[A]nnulling the election and setting up a government, as was done, to all intents and purposes, was a coup". The government admitted that many people were arrested and detained at the time the elections were annulled, but that "many have now been released".
9. The government contends that it was within its own constitutional rights to make laws for the order and good governance of the country, which it did in annulling the election results. The government felt that there were irregularities which may not have been detected by the observers and that although the elections may have been adjudged to be free and fair by all, there were fundamental problems which the government could not brush aside. In such circumstances the government decided that rather than put in place a government that was going to create more problems, it should form a different government. The government formed was in any case not a military government but an interim national government in which people from both parties were appointed to serve.
10. The government maintains that these actions were justified because some people abandoned their offices and went to their villages, creating a chaotic situation. "What the government did was to salvage a situation that was bad. And whatever laws it made at that time, I want this Commission to look at it in terms of [the government] holding a solution to the problem, not as if this were geared to any particular group of people or human rights activities...The government felt that it had to avoid chaos and it restored an interim government, rather than even perpetuating its own regime. I think the Commission should look rather carefully into that because it was not an ordinary situation. I could say it was just a military coup."(See above statement of Chris Osah).
The Complaint:
11. The complainant alleges violation of the following Articles of the Charter 6 and 13.
Procedure before the Commission:
12. The communication was received on 29 July 1993.
13. On 6 January 1994 the Secretariat of the Commission notified
the government of Nigeria.
14. On 22 September 1994 the Secretariat of the Commission sent
a reminder to the Ministry of Foreign Affairs.
15. At the 16th Session, the Commission reiterated the need to
send a mission to Nigeria. The Commission also decided to invoke
Article 58 of the Charter by writing to the Chairman of the OAU,
drawing his attention to the grave violations of human rights
in Nigeria.
16. At its 16th session, the Commission has decided that the
communication should be added to the other files that its Members
going to Nigeria were to discuss with the military authorities
of this country.
17. At the 17th session, held in March 1995, it was decided that
the communication should be added to the cases to be taken up
with the authorities by members of the mission to Nigeria.
18. On 20 April 1995 the Secretariat of the Commission sent letters
to both complainants to inform them of this decision.
19. On 7 June 1995 the Secretariat to the Commission sent a letter
to this effect to the Ministry of Foreign Affairs.
20. At the 18th session, held in Praia, Cape Verde, the Commission
renewed its decision to join this file with those to be considered
by the mission to Nigeria.
21. On 20 December 1995 the Secretariat of the Commission sent
a letter to each complainant to this effect.
22. On 20 December 1995 a letter was sent to the government of
Nigeria to this effect.
23. At the 19th session, held in March 1996, these cases were
due for a decision on admissibility. The Commission heard Mr.
Chidi Anselm Odinkalu who was duly instructed to appear for the
complainants in all the cases except the International PEN, and
heard Mr. Osah and Mr. Bello for the Nigerian Government in reply.
24. At the end of the hearing the Commission took a general view
on the cases and deferred taking final decision in each case pending
the accomplishment of its proposed mission to Nigeria.
25. The Commission declared the communication admissible. It
further decided that all the ten files on Nigeria in respect of
which the parties were heard during this session should be entrusted
to its mission to Nigeria for consideration during the proposed
visit.
26. On 9 May 1996 a letter was sent to the Nigerian Government
informing it that at the 19th session it renewed the decision
taken at the 17th session to send a mission to the country. It
also stated that the communication would be considered on the
merits at the 20th session in October 1996.
27. On 9 May 1996 letters were sent to both complainants informing
them that the communication had been declared admissible at the
19th session and that the Commission had decided to undertake
a mission to Nigeria. The merits of the case would be examined
at the 20th session.
28. At the 20th session held in Grand Bay, Mauritius, October
1996, the Commission decided to postpone the final decision on
the merits of the case to the next session, awaiting the result
of the planned mission to Nigeria.
29. On 10 December 1996 the Secretariat sent a note verbale to
this effect to the government.
30. On 10 December 1996 the Secretariat sent letters to this
effect to the complainants.
31. On 29 April, the Secretariat received a letter from Mr. Olisa
Agbakoba entitled Preliminary objections and observations to the
Mission of the Commission which visited Nigeria from March 7-14
1997. The document was submitted on behalf of Interights with
regard to 14 communications, including this one.
32. Among the objections raised and or observations made were:
the neutrality, Credibility and Relevance; and composition of
the Mission.
33. At its 21st session held in April 1997, the Commission postponed
taking decision on the merits to the next session, pending the
submission of scholarly articles and court case by the complainants
to assist it in its decision. The Commission also awaits further
analysis of its report of the mission to Nigeria.
34. On 22 May 1997, the complainants were informed of the Commission's
decision, while the State was informed on May 28 1997.
35. At the 22nd Ordinary session, the Commission postponed taking
a decision to the next session pending a discussion of the Nigerian
Mission report.
36. At the 23rd Ordinary session held in Banjul, The Gambia from
20-29 April 1998, the Commission postponed consideration of this
case due to lack of time.
37. On 25 June 1998, the Secretariat of the Commission sent letters
to the parties involved informing them of the status of the case.
38. During the 24th Ordinary session, the complainants furnished
the Commission with a "supplementary submission on pending
communications on Nigeria", basically urging the Commission
to continue consideration of communications against Nigeria including
the instant one because the violations have not abated, and the
change in government following the death of General Sani Abacha
has not changed any State responsibility of Nigeria.
THE LAW
Admissibility
39. Article 56 of the African Charter reads:
"Communications...shall be considered if they:
Are sent after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged,..."
40. The annulment of the elections was brought before various
Nigerian courts by various parties, as was the seizure of the
magazines. None of these actions resulted in a remedy of the prejudice
alleged, either reinstatement of the election results or compensation
for the confiscated magazines.
41. Additionally, the jurisdiction of the courts to entertain
these actions in the first place is in serious question. Decree
No. 43, like almost all decrees promulgated by the military government,
contains ouster clause which specifies that the Decree cannot
be challenged in the national courts. The ouster clauses create
a legal situation in which the judiciary can provide no check
on the executive branch of government. A few courts in the Lagos
district have occasionally found that they have jurisdiction;
in 1995 the Court of Appeal in Lagos, relying on common law, found
that courts should examine some decrees notwithstanding ouster
clauses, where the decree is "offensive and utterly hostile
to rationality." (Reprinted in Constitutional Rights Journal).
In a unanimous opinion the court of Appeal Holden at Lagos on
December 12 1996 in the case of Chief Gani Fawehinmi v General
Sani Abacha, Attorney-General of the Federation, State Security
Services, Inspector General of Police, held that the African Charter
being the joint effort of States, no legislative body in Nigeria
could oust its operation and application in Nigeria. Dr. A.H.
Yadudu, Special Adviser (Legal Matters) to the head of State of
Nigeria underscored the importance of this case in a written address
to the members of the Commission to Nigeria on Friday, March 14
1997. However, it is fair to state that at the time the case came
before the Commission no effective legal remedy existed in Nigeria
of which the appellants could avail themselves.
42. Furthermore, the Constitution (Modification and Suspension)
specifies that even decrees that may lack an internal ouster clause
cannot be challenged. Thus, Nigerians face huge legal obstacles
in challenging any new law.
43. The Commission, in its decision on communication 129/94, decided
that in this situation, "it is reasonable to presume that
domestic remedies will not only be prolonged but are certain to
yield no results."(ACHPR\S1\129/94:8).
44. For these reasons the Commission declared the communication
admissible.
Merits
45. In his presentation at the 19th session, the representative
of the complainants expressed his view that an amicable resolution
of the alleged violation of Article 13, concerning the annulled
elections, was impossible because the government had already indicated
that the issue was not negotiable. The representative of the
complainant requested the Commission to clarify the legal situation
by indicating if there had been a violation of the Charter.
46. The government of Nigeria, through its official representative,
referred to "irregularities that may not have been detected
by the [international] observers" and that "though the
elections may have been adjudged free and fair by all", they
were held in "circumstances that the government felt were
not propitious." (See statement of Osah, above.) The government
stated that "[A]nulling the elections and setting up a government,
as was done, to all intents and purposes, was a coup". These
statements accord with the complainant's argument that the question
of the election can no longer be the subject of meaningful negotiation.
47. Although the present government contends that there were "irregularities"
in the elections, it fails to explain what these were. The government
acknowledges that international observers of the elections, applying
international standards, judged them to be free and fair. Yet
it discounted the judgement of these international observers and
substituted its own, unsupported, judgment.
48. A basic premise of international human rights law is that
certain standards must be constant across national borders, and
governments must be held accountable to these standards. The criteria
for what constitutes free and fair elections are internationally
agreed upon, and international observers are put in place to apply
these criteria. It would be contrary to the logic of international
law if a national government with a vested interested in the outcome
of an election, were the final arbiter of whether the election
took place in accordance with international standards. In the
case the government does not even attempt to defend its decision
to overrule the judgement of international observers.
49. Article 13.1 of the Charter reads:
"Every citizen shall have the right to participate freely
in the government of his country, either directly or through freely
chosen representatives in accordance with the provisions of the
law."
50. To participate freely in government entails, among other things,
the right to vote for the representative of one's choice. An inevitable
corollary of this right that the results of free expression of
the will of the voters are respected; otherwise, the right to
vote freely is meaningless. In light of this, the annulment of
the election results, which reflected the free choice of the voters,
is in violation of Article 13.1.
51. Article 20.1 of the Charter provides:
"[All peoples] shall freely determine their political status...according
to the policy they have freely chosen."
52. The right of a people to determine their "political
status" can be interpreted as involving the right of
Nigerians to be able to choose freely those persons or party
that will govern them. It is the counterpart of the right enjoyed
by individuals under Article 13.
53. The election at issue here, held in conditions adjudged to
be free and fair by international observers, was an exercise of
the right of Nigerians to freely determine this political status.
The subsequent annulment of the results by the authority in power
is a violation of this right of the Nigerian people.
54. Article 6 of the African Charter guarantees that:
"Every individual shall have the right to liberty and to
the security of his person. No one may be deprived of his freedom
except for reasons and conditions previously laid down by law.
In particular, no one may be arbitrarily arrested or detained."
55. The government does not dispute that many people, including
human rights activists and journalists, were detained without
having charges brought against them and without the possibility
of bail. The government maintains that "many" of these
individuals have since been released. Where individuals have
been detained without charges being brought, particularly since
the time of the elections, a period of now over three years, this
constitutes an arbitrary deprivation of their liberty and thus
violates Article 6.
56. In the words of Article 9 of the African Charter:
"1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate
his opinions within the law."
57. The government justifies its actions with regard to the journalists
and proscription of publications by reference to the "chaotic"
situation that transpired after the elections were annulled. The
Commission decided, in its decision on communication 101/93, with
respect to freedom of association, that "competent authorities
should not enact provisions which limit the exercise of this freedom.
The competent authorities should not override constitutional provisions
or undermine fundamental rights guaranteed by the constitution
and international human rights standards" (ACHPR\A\101/93:18).
58. With these words the Commission states a general principle
that applies to all rights, not only freedom of association. Government
should avoid restricting rights, and take special care with regard
to those rights protected by constitutional or international human
rights law. No situation justifies the wholesale violation of
human rights. In fact, general restrictions on rights diminish
public confidence in the rule of law and are often counter-productive.
59. Given that Nigerian law contains all the traditional provisions
for libel suits, a governmental proscription of a particular publication,
by name, is of particular concern. Ad hominem Legislation, that
is laws made to apply to specifically one individual or legal
entity raise the acute danger of discrimination and lack of equal
treatment before the law guaranteed by Article 2. The proscription
of "The News" thus constitutes a violation of Article
9. Equally, the seizure of 50,000 copies of "Tempo"
and "The News" Magazine justified in the face of Article
9 of the Charter.
FOR THE ABOVE REASONS, THE COMMISSION
holds violations of Articles 1,6, 9 and 13 of the African Charter;
appeals to the government of Nigeria to release all those who
were detained for protesting against the annulment of the elections;
and to preserve the traditional functions of the court by not
curtailing their jurisdiction.
Banjul, 31 October 1998.
105/93, 128/94, 130/94, 152/96 Media Rights Agenda, Constitutional
Rights Project, Media Rights Agenda and Constitutional Rights
Project/ Nigeria
Rapporteur:
17th Session: Commissioner Janneh
18th Session: Commissioner Umozurike
19th Session: Commissioner Umozurike
20th Session: Commissioner Dankwa
21st Session: Commissioner Dankwa
22nd Session: Commissioner Dankwa
23rd Session: Commissioner Dankwa
24th Session: Commissioner Dankwa
Facts as submitted by the complainant:
1. Communications 105/93, 128/94 and 130/94 state that after
the annulment of the Nigerian elections of 12 June 1993, several
decrees were issued by the government. These proscribed the publication
of two magazines. State officials sealed the premises of the two
magazines embarking upon frequent seizures of copies of magazines
critical of its decisions and arrest of newspaper vendors selling
such magazines.
2. By decree, the government also proscribed 10 newspapers published
by four different media organisations. The complainant alleges
that the newspapers and their operators were not previously accused
of any wrongdoing either publicly or before a court of law or
given any opportunity to defend themselves before their premises
were sealed up on July 22 and they were subsequently outlawed
by Decree 48 of 1993, which was released on 16 August 1993.
3. Constitution (Suspension and Modification) Decree no. 107 of
17 November 1993 Article 5 specifies: "No question as to
the validity of this Decree or any other Decree made during the
period 31st December 1983 to 26th August 1993 or made after the
commencement of this Decree or of an Edict shall be entertained
by a court of law in Nigeria."
4. On 16 August 1993, the Government also announced the promulgation
of the Newspaper Decree No. 43 of 1993. By virtue of Section
7 of the Decree, it is an offence, punishable with either a fine
of N250.000 or imprisonment for a term of 7 years or both for
a person to own, publish or print a newspaper not registered under
the Decree. The registration of existing newspapers under a previously
subsisting law (the Newspaper Act) is extinguished by the Decree.
5. The decision whether or not to register a newspaper is vested
exclusively in the Newspapers Registration Board set up under
the Decree. Compliance with the formal pre-registration requirements
stipulated in the Decree does not guarantee registration of a
newspaper because the Newspaper Registration Board has total discretion
to decide whether the registration of a newspaper is "justified
having regard to the public interest". There are no procedures
for challenging the Board's decision not to register a newspaper.
6. If the Board decides to register a newspaper, N100.000 must
be paid as registration fee. Furthermore, N250.000 must be deposited
into a fund to meet the amount of any penalty imposed on or damages
awarded against the owner, printer, or publisher of the newspaper
by a court of law in the future. Under the Newspapers Act (now
repealed by Decree 43), a bond for N500 with sureties was sufficient
security for possible penalties or damages which might be imposed
on or awarded against a newspaper.
7. Although released by the Government on 16 August 1993, the
Decree is given a retroactive commencement date to 23 June 1993
and persons intending to own, print or publish newspapers in Nigeria
are obliged to apply for registration within three weeks of the
commencement of the Decree (i.e. by 14 July 1993) after complication
with pre-registration requirements, thus making all newspapers
in Nigeria immediately "illegal", and owners, printers
and publishers liable to be arrested and detained.
8. Communications 128/94 and 130/94 deal specifically with the
events of 2 January 1994 when 50,000 copies of TELL magazine were
seized by heavily armed policemen and other security officers
on the printer's premises. In addition, twelve films and fourteen
plates, used for processing, were also confiscated. TELL is a
popular weekly magazine whose aim is to promote and protect human
rights in Nigeria. That week's issue was entitled: "The Return
of Tyranny - Abacha bares his fangs". The story involved
a critical analysis of certain legislation enacted by the military
government which ousts the jurisdiction of the courts. The complainant
stated that no remedies were available at the local level, the
jurisdiction of the courts having been ousted in considering the
validity of such actions.
9. Communication 152/96 was submitted by Constitutional Rights
Project. It states that on 23 December 1995 Mr. Nosa Igiebor,
the Editor in Chief of TELL Magazine was arrested and detained.
The Constitutional Rights Project alleges that he was not told
the reason for his arrest and that no charge has been made against
him. Furthermore, Constitutional Rights Project alleges that he
has been denied access to his family, doctors and lawyers and
that he has received no medical help even though his health is
deteriorating.
10. Constitutional Rights Project also claim that TELL Magazine
was declared illegal and in violation of Decree No. 43 of 1993
which requires all newspapers to register with the Newspaper Registration
Board and to pay a pre-registration fee of N250,000 and a non-refundable
fee of N100,000. These payments would be put into a fund for payment
of penalties from libel actions against the owner, publisher or
printer. Constitutional Rights Project stated that Decree No.
43 of 1993 had been declared null and void by two different courts,
namely the Ikeja High Court on 18 November 1993, and the Lagos
High Court on 5 December 1993. The Nigerian Government did not
appeal against these decisions.
11. In his oral arguments before the Commission, the complainants' representative emphasised that the government's prerogative to make laws for peace and good government does not entitle it to evade its obligations under international law.
The State Party's Response and Observations:
12. The government has made no written submissions in respect of this communication. At the 19th session, held in March 1995 in Ouagadougou, Burkina Faso, the government sent a delegation of several persons. Mr. Chris Osah, Assistant Director General of the Legal and Treaties Department at the Ministry of Foreign Affairs, made the following statements in his presentation on the communication.
13. He stated that "Decree No. 43 of 1993 was made to underscore not only the government's sovereign rights but also its policy of free enterprise. Registration fees are payable to an independent board. It is in the public interest that all newspaper providers or publishers should ensure registration of their enterprises. The government is convinced that such registration fees are reasonable and justifiable in any democratic society. In any case, many newspapers and magazines operate although they have not registered".
14. On ouster of the jurisdiction of the courts, the government stated that "there is nothing particularly new about this. It is the nature of military regimes to provide for ouster clauses, the reasons being that for a military administration which has come in, the resources of litigation become too cumbersome for the government to do what it wants to do".
15. As for retroactive effect, the government maintained that, although the decree technically did have retroactive effect, not a single newspaper was declared illegal or harassed for violating the decree.
The Complaint:
16. The communications allege violations of Articles 6, 7, 9, 14 and 16. of the Charter.
Procedure before the Commission:
17. Communication 105/93 is dated 1 September 1993. The Commission
was seized of the communication at the 14th Session. The state
concerned was notified on January 1994.
18. Communication 128/94 is not dated but was received at the
Secretariat between January and April 1994. The Commission was
seized of the communication at the 15th session. The text of the
communication was sent to the state concerned on 29 July 1994.
19. Communication 130/94 is dated 5 January 1994. The Commission
was seized of the communication at its 15th session and the text
was sent to the state on 29 July 1994. The procedure relating
to these three cases is the same.
20. On 14 September 1994 a letter was sent to the complainants
concerning communications no. 105/93, 128/94 and 130/94, asking
whether all domestic remedies had been exhausted and whether any
further seizures of TELL Magazine has occurred since 2 January
1994.
21. A reminder was sent by the Secretariat of the Commission to
the government of Nigeria on 22 September 1994.
22. At the 16th session, held in October 1994 in Banjul, The Gambia,
the Commission declared the communications admissible.
23. At the 17th session, held in March 1995 in Lomé, Togo,
it was decided to delay final decision on the cases so that they
might be taken up with the Nigerian authorities when the Commission
undertook its mission to that country. It was also declared that
the chairman of the OAU should be informed of the situation in
Nigeria.
24. On 20 April 1995, a letter was sent by the Secretariat of
the Commission to the complainants stating that the communications
were declared admissible, and that a mission would be sent to
Nigeria, and that a decision on the merits would be taken at the
18th session.
25. On 7 June 1995, a letter was sent by the Secretariat of the
Commission to the government of Nigeria stating that the communications
were declared admissible and that a mission would be sent to Nigeria.
26. On 1 September 1995, a letter was sent to the government of
Nigeria stating that the communications would be heard on the
merits at the 18th session of the Commission and inviting the
government to send a representative.
27. At the 18th session of the Commission it was decided that
the communications would be taken up by the mission to Nigeria,
and if the government did not facilitate the visit, the Commission
would at the next session adopt a decision on the facts available.
28. On 30 November 1995 a letter was sent to the complainants
reflecting this decision.
29. On 30 November 1995 a note verbale was sent to the government
of Nigeria reflecting this decision.
30. At the 19th session, the Commission heard Mr. Chidi Anselm
Odinkalu, who was duly instructed to appear for all the complainants
in all cases against Nigeria, except that brought by International
PEN. The Commission heard Mr. Osah and Mr. Bello for the Nigerian
Government in reply. At the end of the hearing the Commission
took a general view on the cases and deferred taking final decision
in each case pending the accomplishment of its proposed mission
to Nigeria.
31. On 9 May 1996 letters were send to the Nigerian Government,
Constitutional Rights Project and Media Rights Agenda informing
them of the Commission's renewed decision to take a mission to
the country and that the three communications detailed above would
be considered on their merits at the 20th session in October 1996.
32. At the 20th session held in Grand Bay, Mauritius, October
1996, the Commission decided to postpone the final decision on
the merits of the communications to the 21st session, awaiting
the result of the planned mission to Nigeria.
33. On 10 December 1996 the Secretariat sent a note verbale to
this effect to the government.
34. On 10 December 1996 the Secretariat sent letters to this effect
to the complainants.
35. Communication 152/96 is dated January, 1996.
36. On 5 February 1996 a letter was sent to the complainant acknowledging
receipt of the communication and that the admissibility of the
case would be examined at the 20th session in October 1996.
37. At the 19th session the communication was not examined.
38. At the 20th session held in Grand Bay, Mauritius October 1996,
the Commission declared the communication admissible, and decided
that it would be taken up with the relevant authorities by the
planned mission to Nigeria. At the same time it was joined with
communications 105/93, 128/94 and 130/94.
39. On 29 April, the Secretariat received a letter from Mr. Olisa
Agbakoba entitled Preliminary objections and observations to the
Mission of the Commission which visited Nigeria from March 7-14
1997. The document was submitted on behalf of Interights with
regard to 14 communications including this one.
40. Among the objections raised and or observations made were
on: the neutrality, Credibility and Relevance; and, composition
of the Mission.
41. At its 21st session held in April 1997, the Commission postponed
taking decision on the merits to the next session, pending the
submission of scholarly articles and court case by the complainants
to assist it in its decision. The Commission also awaits further
analysis of its report of the mission to Nigeria.
42. On 22 May, the complainants were informed of the Commission's
decision, while the State was informed on May 28.
43. From this date on, the procedure in respect of the communication
is identical to that in communication 105/93, 128/94 and 130/94,
above.
44. At the 22nd Ordinary session the Commission postponed taking
a decision on the cases pending the discussion of the Nigerian
Mission report.
45. At the 23rd ordinary session held in Banjul, The Gambia, the
Commission postponed consideration of the case to the next session
due to lack of time.
46. On 25 June 1998, the Secretariat sent letters to the parties
concerned informing them of the status of the case.
THE LAW
Admissibility
47. Article 56 of the African Charter reads:
"Communications...shall be considered if they:...
Are sent after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged"
48. Specifically, in the four decisions the Commission has already
taken concerning Nigeria, Article 56.5 is analyzed in terms of
the Nigerian context. Communication 60/91 (Decision ACHPR/60/91)
concerned the Robbery and Firearms Tribunal; Communication 87/93
(Decision ACHPR/87/93) concerned the Civil Disturbances Tribunal;
Communication 101/93 (Decision ACHPR/101/93) concerned the Legal
Practitioners Decree; and Communication 129/94 (ACHPR/129/94)
concerned the Constitution (Modification and Suspension) Decree
and the Political Parties (Dissolution) Decree.
49. All of the Decrees in question in the above communications
contain "ouster" clauses. In the case of the special
tribunals, these clauses prevent the ordinary courts from taking
up cases placed before the special tribunals or from entertaining
any appeals from the decisions of the special tribunals. (ACHPR/60/91:23
and ACHPR/87/93:22). The Legal Practitioners Decree specifies
that it cannot not be challenged in the courts and that anyone
attempting to do so commits a crime (ACHPR/101/93:14-15). The
Constitution Suspension and Modification legal prohibited their
challenge in the Nigerian Courts (ACHPR/129/94:14-15).
50. In all of the cases cited above, the Commission found that
the ouster clauses render local remedies non-existent, ineffective
or illegal. They create a legal situation in which the judiciary
can provide no check on the executive branch of government. A
few courts in the Lagos district have occasionally found that
they have jurisdiction; in 1995 the Court of Appeal in Lagos,
relying on common law, found that courts should examine some decrees
notwithstanding ouster clauses, where the decree is "offensive
and utterly hostile to rationality" (Reprinted in the Constitutional
Rights Journal). It remains to be seen whether any Nigerian courts
will be courageous enough to follow this holding, and whether
the government will abide by their rulings should they do so.
51. In communication 152/96 the complainant states that Decree
no. 43 has been declared null and void by two different courts,
but these decisions have not been respected by the government.
This is a dramatic illustration of the futility of seeking a
remedy from the Nigerian courts.
52. For these reasons, consistent with its earlier decisions,
the Commission declared the communications admissible.
Merits
53. Article 9 of the African Charter reads:
"1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate
his opinions within the law."
54. This Article reflects the fact that freedom of expression
is a basic human right, vital to an individual's personal development,
his political consciousness, and participation in the conduct
of public affairs in his country. The problem at hand is whether
the decrees requiring the registration of newspapers, and prohibiting
many of them, violate this Article.
55. A payment of a registration fee and a pre-registration deposit
for payment of penalty or damages is not in itself contrary to
the right to the freedom of expression. The government has argued
that these fees are "justifiable in any democratic society",
and the Commission does not categorically disagree.
56. However, the amount of the registration fee should not be
more than necessary to ensure administrative expenses of the registration,
and the pre-registration fee should not exceed the amount necessary
to secure against penalties or damages against the owner, printer
or publisher of the newspaper. Excessively high fees are essentially
a restriction on the publication of news media. In this case,
the fees required for registration, while high, are not so clearly
excessive that they constitute a serious restriction.
57. Of more concern is the total discretion and finality of the
decision of the registration board, which effectively gives the
government the power to prohibit publication of any newspapers
or magazines they choose. This invites censorship and seriously
endangers the rights of the public to receive information, protected
by Article 9.1. There has thus been a violation of Article 9.1.
58. Also of serious concern is the retroactivity of the decree.
The government bases its defense on the non-enforcement of this
aspect of the decree. The government representative offered this
defense: "Article 7.2 of the Charter is very specific: "no
one may be condemned", and we are saying that no one has
been condemned. Second, it says "no penalty may be inflicted"
we are also submitting that there has been no penalty inflicted...We
are even going further to say that more than 3/4 of the newspapers
in Nigeria have registered and yet nobody has taken them to court."
59. While it is reassuring to hear that no one has suffered under
the retroactivity clause of the Decree No. 43, the Commission
must take a stand on the issue of justice underlying Article 7.2
and condemn the literal, minimalist interpretation of the Charter
offered by the representative of Nigeria. Article 7.2 must be
read to prohibit not only condemnation and infliction of punishment
for acts which did not constitute crimes at the time they were
committed, but retroactivity itself. It is expected that citizens
must take the laws seriously. If laws change with retroactive
effect, the rule of law is undermined since individuals cannot
know at any moment if their actions are legal. For a law-abiding
citizen, this is a terrible uncertainty, regardless of the likelihood
of eventual punishment.
60. Furthermore, the Commission unfortunately cannot rest total
confidence in the assurance that no one and no newspaper has yet
suffered under the retroactivity of Decree 43. Potential prosecution
is a serious threat. An unjust but un-enforced law undermines,
as above, the sanctity in which the law should be held. The Commission
must thus holds that Decree no. 43 violates Article 7.2.
61. Communication 152/96 states that two different courts have
declared Decree no. 43 null an void, without any result.
62. This shows not only a shocking disrespect by the Nigerian
government for the judgments of the courts, it is also a violation
of Article 7.1. The right to have one's cause heard by competent
and independent courts must naturally comprise the duty of everyone,
including the state, to respect and follow these judgments.
63. Decree No. 48 proscribes approximately 10 newspapers published
by four different media organizations without having subjected
them to the due process of the law. Decree No. 48 likewise permitted
the newspapers and their operators to have their premises sealed
without being given any opportunity to defend themselves and without
previously being accused of any wrongdoing before a court of law.
64. The Commission decided, in its decision on communication 101/93,
with respect to freedom of association, that "competent authorities
should not enact provisions which limit the exercise of this freedom.
The competent authorities should not override constitutional provisions
or undermine fundamental rights guaranteed by the constitution
and international human rights standards."(ACHPR\A\101/93:18).
65. With these words the Commission states a general principle
that applies to all rights, not only freedom of expression. Governments
should avoid restricting rights, and have special care with regard
to those rights protected by constitutional or international human
rights law. No situation justifies the wholesale violation of
human rights. In fact, general restrictions on rights diminish
public confidence in the rule of law and are often counter-productive.
66. According to Article 9.2 of the Charter, dissemination of
opinions may be restricted by law. This does not mean that national
law can set aside the right to express and disseminate one's opinions;
this would make the protection of the right to express one's opinions
ineffective. To allow national law to have precedent over the
international law of the Charter would defeat the purpose of the
rights and freedoms enshrined in the Charter. International human
rights standards must always prevail over contradictory national
law. Any limitation on the rights of the Charter must be in conformity
with the provisions of the Charter.
67. In contrast to other international human rights instruments,
the African Charter does not contain a derogation clause. Therefore
limitations on the rights and freedoms enshrined in the Charter
cannot be justified by emergencies or special circumstances.
68. The only legitimate reasons for limitations to the rights
and freedoms of the African Charter are found in Article 27.2,
that is that the rights of the Charter "shall be exercised
with due regard to the rights of others, collective security,
morality and common interest."
69. The reasons for possible limitations must be founded in a
legitimate state interest and the evils of limitations of rights
must be strictly proportionate with and absolutely necessary for
the advantages which are to be obtained.
70. Even more important, a limitation may never have as a consequence
that the right itself becomes illusory.
71. The government has provided no evidence that the prohibition
was for any of the above reasons given in Article 27.2. Given
that Nigerian law contains all the traditional provisions for
libel suits, so that individuals may defend themselves where the
need arises, for the government to proscribe a particular publication,
by name, is disproportionate and uncalled for. Laws made to apply
specifically to one individual or legal personality raise the
serious danger of discrimination and lack of equal treatment before
the law, guaranteed by Article 3. The proscription of "The
News" cannot therefore be said to be "within the law"
and constitutes a violation of Article 9.2.
72. Communications 128/94 and 130/94 allege that 50,000 copies
of TELL magazine were seized without any possibility of having
the decision judged by a court of law, because of an article critical
of the government.
73. In the present case, the government has provided no evidence
that seizure of the magazine was for any other reason than simple
criticism of the government. The article in question might have
caused some debate and criticism of the government, but there
seems to have been no information threatening to, for example,
national security or public order in it. All of the legislation
criticized in the article was already known to members of the
public information, as laws must be, in order to be effective.
74. The only person whose reputation was perhaps tarnished by
the article was the head of state. However, in the lack of evidence
to the contrary, it should be assumed that criticism of the government
does not constitute an attack on the personal reputation of the
head of state. People who assume highly visible public roles must
necessarily face a higher degree of criticism than private citizens;
otherwise public debate may be stifled altogether.
75. It is important for the conduct of public affairs that opinions
critical of the government be judged according to whether they
represent a real danger to national security. If the government
thought that this particular article represented merely an insult
towards it or the head of state, a libel action would have been
more appropriate than the seizure of the whole edition of the
magazine before publication. The seizure of the TELL therefore
amounts to a violation of Article 9.2.
76. Article 14 of the Charter reads
"The right to property shall be guaranteed. It may only
be encroached upon in the interest of public need or in the general
interest of the community and in accordance with the provisions
of appropriate laws."
77. The government did not offer any explanation for the sealing
up of the premises of many publications. Those affected were not
previously accused in a court of law, of any wrongdoing. The right
to property necessarily includes a right to have access to property
of one's own and the right not for one's property to be removed.
The Decrees which enabled these premises to be sealed up and for
publications to be seized cannot be said to be "appropriate"
or in the interest of the public or the community in general.
The Commission holds a violation of Article 14. In addition, the
seizure of the magazines for reasons that have not been shown
to be in the public need or interest also violates the right to
property.
78. In his oral argument, the complainant specifically raised
the ouster of the court's jurisdiction over the decrees at issue
here, denying the alleged victims the right to challenge the acts
which affected them. The government offered the surprising defense
that "[I]t is in the nature of military regimes to provide
for ouster clauses", because without such clauses the volume
of litigation would make it "too cumbersome for the government
to do what it wants to do".
79. This argument rests on the assumption that ease of government
action takes precedence over the right of citizens to challenge
such action. It neglects the central fact that the courts are
a critical monitor of the legality of government action, which
no lawful government acting in good faith should seek to evade.
The courts' ability to examine government actions and, if necessary,
halt those that violate human rights or constitutional provisions,
is an essential protection for all citizens.
80. It is true that if national tribunals are not deprived of
their powers, they will almost certainly eventually pronounce
on the legality of military government itself. The government
representative's argument implicitly admits what the Commission
has already said in its decision on communication 102/93, which
is that military regimes rest on questionable legal ground. Government
by force is in principle not compatible with the rights of peoples'
to freely determine their political future.
81. A government that governs truly in the best interest of the
people, however, should have no fears of an independent judiciary.
The judiciary and the executive branch of government should be
partners in the good ordering of society. For a government to
oust the jurisdiction of the courts on a broad scale reflects
a lack of confidence in the justifiability of its own actions,
and a lack of confidence in the courts to act in accordance with
the public interest and rule of law.
82. The Commission must therefore reject the defense of "the
nature of military regimes" offered by the government's representative,
and holds that the ouster of the court's jurisdiction violates
the right to have one's cause heard, under Article 7.1.
83. Article 6 of the African Charter reads:
"Every individual shall have the right to liberty and to
the security of his person. No one may be deprived of his freedom
except for reasons and conditions previously laid down by law.
In particular, no one may be arbitrarily arrested or detained."
84. Communication 152/96 alleges that Mr. Nosa Igiebor was arrested
and detained without being told any reason and without any charges
being made.
85. The government has offered no substantive response to this
allegation.
86. The Commission, in several previous decisions, has set out
the principle that where allegations of human rights abuses go
uncontested by the government concerned, even after repeated notifications,
the Commission must decide on the facts provided by the government
at treat those facts as given (See, e.g., the Commission's decisions
in communications 59/91, 60/91, 64/91, 87/91 and 101/93). Therefore
the Commission finds that there has been a violation of Article
6.
87. Article 7.1 (c) of the African Charter reads:
"1. Every individual shall have the right to have his cause
heard. This comprises:
.....
(c) The right to defense, including the right to be defended
by counsel of his own choice;"
88. Constitutional Rights Project alleges that Mr. Nosa Igiebor
was denied access to lawyers. The government has made no response
to this allegation. Therefore the Commission must take a decision
on the facts as presented by the complainant. To be denied access
to a lawyers is a violation of Article 7.1(c) even if there were
no charges against Mr. Igiebor. People who are detained in violation
of the Charter must not have lesser rights that those detained
in conformity with the rules in Article 7.
89. Article 16 of the African Charter reads:
"1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.
2. States Parties to the present Charter shall take the necessary measures to protect the health go their people and to ensure that they receive medical attention when they are sick."
90. Constitutional Rights Project alleges Mr. Nosa Igiebor
was denied access to doctors and that he received no medical help
even though his health was deteriorating through his detention.
The government has made no response to this allegation. Therefore
the Commission must take a decision on the facts as presented
by the complainant.
91. The responsibility of the government is heightened in cases
where the individual is in its custody and therefore someone whose
integrity and well-being is completely dependent on the activities
of the authorities. To deny a detainee access to doctors while
his health is deteriorating is a violation of Article 16.
FOR THESE REASONS, THE COMMISSION
holds a violation of Article 6, 9.1, 9.2, 7.1(c), 7.2, 14, et 16 of the African Charter;
requests that the Government of Nigeria take the necessary steps to bring its law into conformity with the Charter.
Banjul, 31st October 1998.
137/94, 139/94, 154/96 and 161/97 International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation/Nigeria
Rapporteurs:
17th Session: Commissioner Badawi
18th Session: Commissioner Kisanga
19th Session: Commissioner Kisanga
20th Session: Commissioner Kisanga
21st Session: Commissioner Dankwa
22nd Session: Commissioner Dankwa
23rd Session: Commissioner Dankwa
24th Session: Commissioner Dankwa
Facts as submitted by the authors:
1. These communications were submitted to the African Commission
by International Pen, the Constitutional Rights Project, Interights
[and Civil Liberties Organisation] respectively. They were joined
because they all concern the detention and trial of Kenule Beeson
Saro-Wiwa, a writer and Ogoni activist, president of the Movement
for the Survival of the Ogoni People. The communications 139/94
and 154/96 also complain of similar human rights violations suffered
by Mr. Saro-Wiwa's co-defendants, also Ogoni leaders.
2. The communications 137/94 and 139/94 were submitted in 1994
before any trial began. After the murder of four Ogoni leaders
on 21 May 1994, following riot during a public meeting organised
by Movement for the Survival of the Ogoni Peoples (MOSOP) representing
the rights of those who lived in oil producing areas of Ogoni
land, Saro-Wiwa and many hundreds of others were arrested, Saro-Wiwa
himself on 22 May 1994 and the vice-president of MOSOP, Ledum
Mitee, shortly thereafter. Both communications allege that Mr
Saro-Wiwa was severely beaten during the first days of his detention
and was held for several days in leg irons and handcuffs. He
was also denied access to his lawyer and the medicine he needed
to control his blood pressure, at times prevented from seeing
his family, and held in very poor conditions.
3. In its communication, submitted on 9 September 1994, the Constitutional
Rights Project included a list of 16 other Ogonis who had been
held without charge or bail for what was at that time over three
months. Both communications alleged that Mr. Saro-Wiwa had been
detained because of his political work in relation to MOSOP. He
had been detained five times for brief periods since the beginning
of 1993, and released each time without charge, except on one
occasion in mid-1993 where he was held for several weeks and charged
with unlawful assembly.
4. The State Military Administrator declared that Mr. Saro-Wiwa
and his co-defendants had incited members of MOSOP to murder four
rival Ogoni leaders, but no charges were brought until 28 January
1995. In the months between arrest and the beginning of the trial,
the defendants were not allowed to meet with their lawyers, and
no information on the charges was provided to the defence.
5. In February 1995 the trial of the defendants began before a
tribunal established under the Civil Disturbances Act. The three
members of this tribunals were appointed directly by General Abacha
in November 1994, although counsel for the Rivers State Administrator
argued in August that the cases were within the exclusive jurisdiction
of the Rivers State High Court, since Rivers State is where the
offences occurred.
6. In June 1995 the Constitutional Rights Project submitted a
supplement to its communication, alleging irregularities in the
conduct of the trial itself: harassment of defence counsel, a
military officer's presence at what should have been confidential
meetings between defendants and their counsel, bribery of witnesses,
and evidence of bias on the part of the tribunal members themselves.
In October 1995 PEN also copied to the Commission a letter it
sent to General Abacha protesting the lack of concrete evidence
and the unfair conduct of the trial.
7. On 30 and 31 October 1995, Ken Saro-Wiwa and eight of the co-defendants
(Saturday Dobee, Felix Nuate, Nordu Eawo, Paul Levura, Daniel
Gbokoo, Barinem Kiobel, John Kpunien and Baribor Bera) were sentenced
to death, while six others including Mr. Mitee were acquitted.
The CRP submitted an emergency supplement to its communication
on 2 November 1995, asking the Commission to adopt provisional
measures to prevent the executions.
8. The Secretariat of the Commission faxed a note verbale invoking
interim measures under revised Rule 111 of the Commission's Rules
of Procedure to the Ministry of Foreign Affairs of Nigeria, the
Secretary General of the OAU, the Special Advisor (Legal) to the
Head of State, the Ministry of Justice of Nigeria, and the Nigerian
High Commission in The Gambia. The note verbale pointed out that
as the case of Mr. Saro-Wiwa and the others was already before
the Commission, and the government of Nigeria had invited the
Commission to undertake a mission to that country, during which
mission the communications would be discussed, the executions
should be delayed until the Commission had discussed the case
with the Nigerian authorities.
9. No response to this appeal was received before the executions
were carried out.
10. On 7 November 1995 the Provisional Ruling Council (PRC) confirmed
the sentences of death and on 10 November 1995 all the accused
persons were executed in secret at the Port Harcourt Prison. By
section 7 of the Civil Disturbances (Special Tribunals) Decree
No. 2 of 1987, under which the executed persons were tried, the
PRC are required to receive the records of the trial Tribunal
before confirmation of the decision is possible. These records
were not prepared by the Tribunal and so were not available for
the PRC.
11. In 1996 the Secretariat received a communication from Interights
representing Ken Saro-Wiwa Jr. It alleged that the condemned persons
had been detained arbitrarily prior to and during the trial and
that they had been subjected to torture in the Army camp. Furthermore
it alleged serious irregularities concerning the conduct of the
trial: that the tribunals that convicted the accused persons were
not independent; that there was no presumption of innocence; that
the accused persons had not been given time or facilities in which
to prepare their defence; that they had been denied legal representation
by a counsel of their choice; that there was no right of appeal
and that following the sentencing the persons were held incommunicado.
Interights asserted that they were tried, convicted and sentenced
to death for the peaceful expression of their views and opinions
on the violations of the rights of the Ogoni people.
12. In December 1996 the Secretariat received a communication
from the Civil Liberties Organisation, alleging that the Civil
Disturbances (Special Tribunal) Decree is invalid because it was
made without participation of the people; that it's composition
with military officers and members of the Provisional Ruling Council
meant that it could not be impartial; and that the lack of judicial
review of the decisions of this tribunal amount to a violation
of the right to appeal and fair trial. The communication alleges
that the trial, conviction and sentencing of Ken Saro-Wiwa and
others violated Articles 7.1(b)(c) and (d) of the African Charter,
and that the execution of these persons violates Article 4. The
communication alleges that the arraignment of 19 more alleged
suspects constitutes another potential violation of the Charter.]
The Complaint:
13. The Communications allege violation of Articles 1, 4, 5, 7,
9, 10, 11, 16 and 26 of the African Charter.
The State Response and Observations:
14. The government argues that its actions were necessary to protect
the rights of the citizens who had been murdered; that the tribunal
which tried Saro-Wiwa was competent because two of its three members
were lawyers; that the process of confirmation by a state government
was an adequate appeal; that the Civil Disturbances Decree had
not been protested upon its enactment in 1987 and that it had
been set up to deal with a crisis situation.
Procedure before the Commission:
15. Communication 137/94 is dated 28 September 1994 and was submitted
by International Pen.
16. Communication 139/94 is submitted by Constitutional Rights
Project and dated 9 September 1994.
17. The Commission was seized of the communications at its 16th
Session in October 1994, but deferred its decision on admissibility
pending notification and receipt of additional information from
the Nigerian Government.
18. At the 16th session the Commission decided to merge the communications.
19. On 9 November 1994, a notification of the two communications
was sent to the Nigerian Government and Rule 109 of the Rules
of Procedure was invoked, requesting the Nigerian Government not
to cause irreparable prejudice to Mr. Saro-Wiwa.
20. On 6 February 1995 a letter was received from International
Pen stating that Mr. Saro-Wiwa was being ill-treated and that
he was facing the death penalty.
21. On 13 February a letter was sent to the Nigerian Government
re-emphasising the need for Rule 109 to be applied.
22. On 22 February 1995, a letter was received from complainants
stating that Ken Saro-Wiwa had been charged and was scheduled
to appear before a three person tribunal from which there was
no right of appeal. The tribunal members are chosen by General
Abacha in violation of international fair trial standards. The
complainant recognised that local remedies had yet to be exhausted
and announced its intention to present an update of the case to
the Commission once the trial was completed.
23. At the 17th session the Commission declared the communications
admissible. They were to be heard on their merits at the 18th
session.
24. On 20 April 1995, letters were sent to the Government of Nigeria
and the complainants informing them of this.
25. On 28 June 1995 a letter was received from the Constitutional
Rights Project describing developments in the case.
26. On 1 September 1995, a letter was sent to the government of
Nigeria stating that the communication would be heard on the merits
at the 18th session of the Commission and inviting the government
to send a representative.
27. At the 18th session the Commission decided that the communications
should be taken up by the mission planned for Nigeria.
28. On 9 October 1995 a letter was received from PEN American
Centre expressing concern for the state of health of Mr. Saro-Wiwa.
29. On 1 November 1995, upon hearing that a death sentence had
been passed on Mr. Saro-Wiwa and eight of his co-defendants, the
Secretariat faxed a note verbale to the government of Nigeria,
invoking the revised Rule of Procedure 111 (formerly 109) asking
that the executions should be delayed until the Commission had
taken its mission and spoken with the competent authorities.
This note verbale was also faxed to the Secretary General of the
OAU, the Nigerian High Commission in Banjul, and the Special Adviser
(Legal) to the Head of State of Nigeria.
30. On 2 November 1995 a letter was received from the Constitutional
Rights Project notifying the Secretariat of the death sentences
and requesting that provisional measures be invoked.
31. On 9 November 1995 Commissioner Dankwa, hearing that the death
sentence had been confirmed, wrote to the Secretariat requesting
such action. He was faxed a copy of the note verbale.
32. On 20 November 1995 the Secretariat received a note verbale
from the Nigerian High Commissioner in Banjul, attempting to justify
the executions.
33. On 21 November 1995 the Secretariat wrote a note verbale to
the Nigerian High Commission in Banjul, requesting the official
judgement in the Saro-Wiwa case, which had been mentioned in the
note verbale.
34. On 30 November 1995 a letter was sent to the complainants
stating that the communications would be taken up by the Commission's
mission to Nigeria.
35. On 13 December 1995, the Secretariat received a letter dated
13 November 1995 from the office of the Special Adviser to the
Head of State, attempting to justify the executions.
36. On 18 and 19 December 1995, the Commission held an extraordinary
session on Nigeria in Kampala.
37. On 26 January 1996 a letter was sent to the Constitutional
Rights Project informing it of the interim measures taken with
regard to Ken Saro-Wiwa.
38. At the 19th session, held in March/April 1996 in Ouagadougou,
Burkina Faso, the Commission heard statements from the government
of Nigeria and the complainants. Mr. Chidi Anselm Odinkalu was
duly authorised to appear for the complainants, and Mr. Osah and
Mr. Bello appeared for the Nigerian Government. At the end of
the hearing the Commission took a general view on the cases and
deferred taking final decision in each case pending the accomplishment
of its proposed mission to Nigeria. The Commission proposed May
1996 as the dates for the visit. The Nigerian delegation said
they will communicate these dates to the Government of Nigeria
for confirmation.
39. On 8 May 1996 the Commission wrote to the Nigerian Government,
Constitutional Rights Project and International PEN informing
them that a decision had been taken at the 19th session to send
a mission to the country where the cases would be taken up.
40. At the 20th session held in Grand Bay, Mauritius, October
1996, the Commission decided to postpone the final decision on
the merits of the communications to the next session, awaiting
the result of the planned mission to Nigeria. The Commission also
decided to join communication 154/96 with these communications.
41. On 10 December 1996 the Secretariat sent letters to the complainants
informing them of the decisions of the Commission.
42. On 10 December 1996 the Secretariat sent a note verbale to
the government informing it of the decisions of the Commission.
43. On 29 April, the Secretariat received a letter from Mr. Olisa
Agbakoba entitled Preliminary objections and observations to the
Mission of the Commission which visited Nigeria from March 7-14
1997. The document was submitted on behalf of Interights with
regard to 14 communications, including this one.
44. Among the objections raised and or observations made were:
a) the neutrality, credibility and relevance; and composition
of the Mission.
45. At its 21ST session held in April 1997, the Commission postponed
taking decision on the merits to the next session, pending the
submission of scholarly article and court decisions by the complainants
to assist it in its decision. The Commission also awaits further
analysis of its report of the mission to Nigeria. It must be stated
that Mr. Chidi Odinkalu did send the article mentioned above.
46. On 22 May, the complainants were informed of the Commission's
decision, while the State was informed on May 28.
47. Communication 154/96 is dated 6 November 1995 and received
at the Secretariat on 4 March 1996.
48. The communication requested the Commission to take interim
measures to prevent the executions. A supplementary submission
was sent with the communication informing the Commission that
the executions had taken place on 10 November but that the communication
was reaffirmed.
49. On 13 November 1995 the Nigerian Government wrote to the Commission
informing it of the Government's view of the situation.
50. On 20 November 1995 the High Commission of Nigeria in the
Gambia giving its opinion on the matter.
51. On 21 November 1995 the Commission wrote to the High Commission
of Nigeria in the Gambia requesting a copy of the Justice's judgement
in the case.
52. On 12 March 1996 a confirmation was sent to this effect by
the complainant.
53. At the 19th session in March 1996 the communication was not
considered, but the Commission took a general view of all the
communications against Nigeria and deferred any decision on cases
pending the accomplishment of its proposed mission to Nigeria.
54. On 13 August 1996 a complete copy of the communication was
sent to the government of Nigeria.
55. On 13 August 1996 a letter was sent to the complainant informing
him of the status of the case.
56. On 4 February 1997, the Secretariat received a letter entitled
supplementary submissions with respect to communication No. 154/96
57. On 4th April, the Secretariat acknowledged receipt of the
letter.
58. On 29 April, the Secretariat received a letter from Mr. Olisa
Agbakoba entitled Preliminary objections and observations to the
Mission of the Commission which visited Nigeria from March 7-14
1997. The document was submitted on behalf of Interights with
regard to 14 communications, including this one.
59. Among the objections raised and or observations made were:
a) the neutrality, credibility and relevance; and composition
of the Mission.
60. At its 21ST session held in April 1997, the Commission postponed
taking decision on the merits to the next session, pending the
submission of scholarly articles and court case by the complainants
to assist it in its decision. The Commission also awaits further
analysis of its report of the mission to Nigeria.
61. On 22 May, the complainants were informed of the Commission's
decision, while the State was informed on May 28.
62. On May 27, the Secretariat received a letter from the complainant
entitled Additional Information on Ouster Clauses in Nigerian
Law in which he promised to furnish the Secretariat with the information
requested by the Commission at its 21st session " within
the next three weeks".
63. From this day on the procedure is identical to communications
137/94 and 139/94.
64. Communication 161/97 was received on 10 January 1997.
65. On 14 January 1997 a note verbale with a copy of the communication
was sent to the Ministry of External Affairs, copy to the Special
Legal Adviser to the Head of State, the Nigerian High Commission,
and the Embassy of Nigeria in Addis Ababa.
66. On 23 January 1997 an acknowledgement of receipt was sent
to the complainant.
67. At its 21ST session held in April 1997, the Commission postponed
taking decision on the merits to the next session, pending the
submission of scholarly articles and court case by the complainants
to assist it in its decision. The Commission also awaits further
analysis of its report of the mission to Nigeria.
68. On 22 May, the complainants were informed of the Commission's
decision, while the State was informed on May 28.
69. At the 22nd Ordinary session, the Commission postponed taking
a decision on the cases pending the discussion of the Nigerian
Mission report.
70. At the 23rd Ordinary session held in Banjul The Gambia, from
20-29 April 1998, the Commission was unable to consider the communication
due to lack of time.
71. On 25 June 1998, letters were sent from the Secretariat of
the Commission to all parties concerned regarding the status of
the communications.
LAW
Admissibility
72. Article 56 of the African Charter reads:
"Communications...shall be considered if they:
...
5. Are sent after exhausting local remedies, if any, unless it
is obvious that this procedure is unduly prolonged,..."
73. This is just one of the 7 conditions specified by Article
56, but it is that which usually requires the most attention.
Because Article 56 is necessarily the first considered by the
Commission, before any substantive consideration of communications,
it has already been the subject of substantial interpretation;
in the jurisprudence of the African Commission, there are several
important precedents.
74. Specifically, in the four decisions the Commission has already
taken concerning Nigeria, Article 56.5 is analysed in terms of
the Nigerian context. Communication 60/91 (Decision ACHPR/60/91)
concerned the Robbery and Firearms Tribunal; Communication 87/93
(Decision ACHPR/87/93) concerned the Civil Disturbances Tribunal;
Communication 101/93 (Decision ACHPR/101/93) concerned the Legal
Practitioners Decree; and Communication 129/94 (ACHPR/129/94)
concerned the Constitution (Modification and Suspension) Decree
and the Political Parties (Dissolution) Decree.
75. All of the Decrees in question in the above communications
contain "ouster" clauses. In the case of the special
tribunals, these clauses prevent the ordinary courts from taking
up cases placed before the special tribunals or from entertaining
any appeals from the decisions of the special tribunals. (ACHPR/60/91:23
and ACHPR/87/93:22). The Legal Practitioners Decree specifies
that it cannot not be challenged in the courts and that anyone
attempting to do so commits a crime (ACHPR/101/93:14-15). The
Constitution Suspension and Modification legally prohibited their
challenge in the Nigerian Courts (ACHPR/129/94:14-15).
76. In all of the cases cited above, the Commission found that
the ouster clauses render local remedies non-existent, ineffective
or illusory. They create a legal situation in which the judiciary
can provide no check on the executive branch of government. A
few courts in the Lagos district have occasionally found that
they have jurisdiction; in 1995 the Court of Appeal in Lagos,
relying on common law, found that courts should examine some decrees
notwithstanding ouster clauses, where the decree is "offensive
and utterly hostile to rationality" (Reprinted in the Constitutional
Rights Journal). It remains to be seen whether any Nigerian courts
will be courageous enough to follow this holding, and whether
the government will abide by their rulings should they do so.
77. In the present case, while the above reasoning was used in
the initial decisions on admissibility, it is at the present time
unnecessary. In light of the fact that the subjects of the communications
are now deceased, it is evident that no domestic remedy can now
give the complainants the satisfaction they seek. The communications
are thus admissible.
Merits
78. Article of the Charter 5 reads:
"Every individual shall have the right to the respect of
the dignity inherent in a human being and to the recognition of
his legal status. All forms of exploitation and degradation of
man particularly slavery, slave trade, torture, cruel, inhuman
or degrading punishment and treatment shall be prohibited."
79. Article 5 prohibits not only torture, but also cruel, inhuman
or degrading treatment. This includes not only actions which cause
serious physical or psychological suffering, but which humiliate
the individual or force him or her to act against his will or
conscience.
80. International PEN alleges that Ken Saro-Wiwa was kept in leg
irons and handcuffs and subjected to ill-treatment including beatings
and being held in cells which were airless and dirty, then denied
medical attention, during the first days of his arrest. There
was no evidence of any violent action on his part or escape attempts
that would justify holding him in irons. Communication 154/96
alleges that all the victims were manacled in their cells, beaten
and chained to the walls in their cells.
81. The government has made no written submission in these cases,
and has not refuted these allegations in its oral presentation.
It is well-established jurisprudence of the Commission that where
allegations go entirely unchallenged, it will proceed to decide
on the facts presented (See, e.g., the Commission's decisions
in communications 59/91, 60/91, 64/91, 87/93 and 101/93). Thus,
the Commission holds a violation of Article 5 of the Charter.
82. Article 6 of the African Charter reads:
"Every individual shall have the right to liberty and to
the security of his person. No one may be deprived of his freedom
except for reasons and conditions previously laid down by law.
In particular, no one may be arbitrarily arrested or detained."
83. All the victims were arrested and kept in detention for a
lengthy period under the State Security (Detention of Persons)
Act of 1984 and State Security (Detention of Persons ) Amended
Decree No. 14 (1994), that stipulates that the government can
detain people without charge for as long as three months in the
first instance. The decree also states that the courts cannot
question any such detention or in any other way intervene on behalf
of the detainees. This decree allows the government to arbitrarily
hold people critical of the government for up to 3 months without
having to explain themselves and without any opportunity for the
complainant to challenge the arrest and detention before a court
of law. The decree therefore prima facie violates the right not
to be arbitrarily arrested or detained protected in Article 6.
84. The government has made no defence of this decree, either
for its general validity or its justice as applied in this case.
Thus, the Commission holds a violation of Article 6.
85. Article 7 of the African Charter reads:
"1. Every individual shall have the right to have his
cause heard. This comprises:
(a) The right to appeal to competent national organs against acts
of violating his fundamental rights
(b) the right to be presumed innocent until proved guilty by a
competent court or tribunal;
(c) the right to defence, including the right to be defended by
counsel of his choice;
(d) the right to be tried within a reasonable time by an impartial
court or tribunal."
86. As regards the conduct of the trial itself, it is unnecessary
for the Commission to delve into the specific circumstances, because
by the Commission's own precedent the tribunal was defective.
As will be recalled, in its decision on Communication 87/93, the
Commission considered that special tribunals established under
the Civil Disturbances Act violate Article 7.1(d) of the African
Charter, because their composition is at the discretion of the
executive branch. Removing cases from the jurisdiction of the
ordinary courts and placing them before an extension of the executive
branch necessarily compromises their impartiality, which is required
by the African Charter. This violation of the impartiality of
tribunals occurs in principle, regardless of the qualifications
of the individuals chosen for a particular tribunal.
87. The note verbale of the Nigerian High Commissioner in The
Gambia points out that the tribunal was not a military one, but
was presided over by a judge of the Nigerian Court of Appeal,
and that tribunals are properly constituted in the Nigerian judicial
system to deal with specific issues and for speedier dispensation
of justice. The note verbale makes other specific points on the
conduct of the trial, arguing for its fairness: the placement
of evidence, its conduct in public, and the fact that some of
the defendants were ultimately acquitted.
88. In its oral presentation at the 19th session, the government
argued that the confirmation of sentence given by the state governors
is an adequate appeal.
89. The Commission might cite opposing facts, casting doubt upon
the fairness of the tribunal. For example, The Head of State personally
chose its members consisting of three instead of the five persons
required by the Civil Disturbances Act. When defence counsel wrote
to the Chief Judge of the Federal High Court on 27 November 1994
for information on when the trial would begin, the judge responded,
"This Court has nothing to do about the Tribunal. It is the
responsibility of the Presidency".
90. There is a great deal of information available from Nigerian
and international sources on the day-to-day conduct of the tribunal
and the significance of its legal rulings. Yet in reaching its
decision, the Commission need only rely upon its earlier holding,
made in less politically charged circumstances, that the special
tribunals established under the Civil Disturbances Act are in
violation of the African Charter. As a result, it finds that
Ken Saro-Wiwa and his co-defendants were denied the right to a
fair trial, in violation of Article 7.1(d).
91. Section 7 of the Civil Disturbances (Special Tribunals) Decree
No. 2 of 1987 decides that the confirming authority of judgments
given under the act is the PRC, that is the ruling council of
the Federal Military government, the members of which are exclusively
members of the armed forces.
92. Section 8(1) of the same Decree stipulates:
"The validity of any decision, sentence, judgement, confirmation,
direction, notice or order given or made, as the case may be,
or any other thing whatsoever done under this Act shall not be
inquired into by any court of law."
93. In this case, it is not safe to view the Provisional Ruling
Council as impartial or independent. Section 8(1) effectively
ousts all possibility of appeal to the ordinary courts. Thus,
the accused persons had no possibility of appeal to a competent
national organ, and the Commission finds a violation of Article
7.1(a).
94. Article 26 of the African Charter reads:
"States parties to the present Charter shall have the duty
to guarantee the independence of the Courts...."
95. As stated above, the Special Tribunal and the Provisional
Ruling Council are not independent. The Commission also finds
that there is a violation of Article 26 of the African Charter.
96. The government has not contradicted the allegations contained
in communication 154/96 that at the conviction in October 1995
the Tribunal itself admitted that there was no direct evidence
linking the accused to the act of the murders, but held that they
had each failed to establish that they did not commit the crime
alleged. Communication 154/96 has also affirmed that prior to
and during the trial, leading representatives of the government
pronounced MOSOP and the accused guilty of the crimes at various
press conferences and before the United Nations. As the allegations
have not been contradicted, the Commission find a violation of
the right to be presumed innocent, Article 7.1(b).
97. Initially, the accused were defended by a team of lawyers
of their own choice. According to Communication 154/96 and Communication
139/94, this team withdrew from the case because of harassment,
both in the conduct of the trial and in their professional and
private lives outside. Communication 154/96 alleges that two of
the lawyers were seriously assaulted by soldiers claiming to be
acting on the instruction of the military officer responsible
for the trial. On three occasions defence lawyers were arrested
and detained and two of the lawyers had their offices searched.
When these lawyers withdrew from the case, the harassment subsided.
98. After the withdrawal of their chosen counsel, the accused
were defended by a team assigned by the Tribunal. However, this
team also resigned, complaining of harassment. After that, the
accused declined to accept a new team appointed by the Tribunal,
and the court proceedings were closed without the accused having
legal representation for the duration.
99. Communication 154/96 also claims that the defence was denied
access to the evidence on which the prosecution was based and
that files and documents which were required by the accused for
their defence were removed from their residences and offices when
they were searched by security forces on different occasions during
the trial.
100. The government claims that: "Their [the accused] defence
team which comprised sly human rights activists such as Femi Falana
and Gani Fawehinmi, known to be more disposed towards melodrama
than the actual defence of their clients, inexplicably withdrew
from the Special Tribunal at a crucial stage of the trial in order
to either play to the gallery or delay and frustrate the process".
101. This statement does not contradict the allegations of Communication
154/96, that two different defence teams were harassed into quitting
the defence of the accused persons; it merely attributed malicious
motives to the defence. The government has not responded to the
allegations of withholding evidence from the defence. The Commission
therefore finds itself with no alternative but to conclude that
a violation of Article 7.1(c) has occured.
102. Article 4 of the African Charter reads:
"Human beings are inviolable. Every human being shall be
entitled to respect for his life and the integrity of his person.
No one may be arbitrarily deprived of this right."
103. Given that the trial which ordered the executions itself
violates Article 7, any subsequent implementation of sentences
renders the resulting deprivation of life arbitrary and in violation
of Article 4. The violation is compounded by the fact that there
were pending communications before the African Commission at the
time of the executions, and the Commission had requested the government
to avoid causing any "irreparable prejudice" to the
subjects of the communications before the Commission had concluded
it consideration. Executions had been stayed in Nigeria in the
past on the invocation by the Commission of its rule on provisional
measures (Rule 109 now 111) and the Commission had hoped that
a similar situation will obtain in the case of Ken Sarow-Wiwa
and others. It is a matter of deep regret that this did not happen.
104. The protection of the right to life in Article 4 also includes
a duty for the state not to purposefully let a person die while
in its custody. Here at least one of the victims' lives was seriously
endangered by the denial of medication during detention. Thus,
there are multiple violations of Article 4.
105. Article 11 of the African Charter provides:
"Every individual shall have the right to assemble freely
with others..."
106. Communication 154/96 alleges that Article 11 was violated
because the murder trial directly followed public meetings of
MOSOP. In its judgement, the Tribunal held that the condemned
persons "created the fire that consumed the four Ogoni chiefs"
by wrongfully organising election campaign rallies and permitting
a large crowd of fanatical MOSOP and NYCOP youths to congregate.
It appears that the Tribunal holds the accused responsible for
the murders because they organised the rally after which the murders
took place, although Ken Saro-Wiwa for one was prevented by government
officials from attending the rally. The Commission has considerable
difficulty with this position as it can adversely affect the right
to assembly.
107. Article 10.1 of the African Charter reads:
"Every individual shall have the right to free association
provided that he abides by the law."
108. Communication 154/96 alleges that Article 10.1 was violated
because the victims were tried and convicted for their opinions,
as expressed through their work in MOSOP. In its judgement, the
Tribunal held that by their membership in MOSOP, the condemned
persons were responsible for the murders, guilt by association,
it would seem furthermore that, government officials at different
times during the trial declared MOSOP and the accused guilty of
the charges, without waiting for the official judgement. This
demonstrates a clear prejudice against the organisation MOSOP,
which the government has done nothing to defend or justify. Therefore
the Commission finds a violation of Article 10.1.
109. Article 9.2 of the African Charter reads:
"Every individual shall have the right to express and disseminate
his opinions within the law."
110. There is a close relationship between the rights expressed
in the Articles 9.2, 10.1 and 11. Communication 154 alleges that
the actual reason for the trial and the ultimate death sentences
was the peaceful expression of views by the accused persons.
The victims were disseminating information and opinions on the
rights of the people who live in the oil producing area of Ogoniland,
through MOSOP and specifically a rally. These allegations have
not been contradicted by the government, which has already been
shown to be highly prejudiced against MOSOP, without giving concrete
justifications. MOSOP was founded specifically for the expression
of views of the people who live in the oil producing areas, and
the rally was organised with this in view. The Government's actions
is inconsistent with Article 9.2 implicit when it violated Articles
10.1 and 11.
111. Article 16 of the Charter reads:
"1. Every individual shall have the right to enjoy the best
attainable state of physical and mental health.
2. States parties to the present Charter shall take the necessary
measures to protect the health of their people and to ensure that
they receive medical attention when they are sick."
112. The responsibility of the government is heightened in cases
where an individual is in its custody and therefore someone whose
integrity and well-being is completely dependent on the actions
of the authorities. The state has a direct responsibility in this
case. Despite requests for hospital treatment made by a qualified
prison doctor, these were denied to Ken Saro-Wiwa, causing his
health to suffer to the point where his life was endangered. The
government has not denied this allegation in any way. This is
a violation of Article 16.
113. Nigeria has been a State Party to the African Charter for
over a decade, and is thus bound by Article 1 of the African Charter.
114. The Commission assists States parties to implement their
obligations under the Charter. Rule 111 of the Commission's Rules
of Procedure (revised) aims at preventing irreparable damage being
caused to a complainant before the Commission. Execution in the
face of the invocation of Rule 111 defeats the purpose of this
important rule. The Commission had hoped that the Government of
Nigeria would respond positively to it's request for a stay of
execution pending the former's determination of the communication
before it.
115. This is a blot on the legal system of Nigeria which will
not be easy to erase. To have carried out the execution in the
face of pleas to the contrary by the Commission and world opinion
is something which we pray will never happen again. That it is
a violation of the Charter is an understatement.
116. The Nigerian Government itself recognises that human rights
are no longer solely a matter of domestic concern. The African
Charter was drafted and acceded to voluntarily by African States
wishing to ensure the respect of human rights on this continent.
Once ratified, States Parties to the Charter are legally bound
to its provisions. A state not wishing to abide by the African
Charter might have refrained from ratification. Once legally bound,
however, a state must abide by the law in the same way an individual
must.
FOR THE ABOVE REASONS, THE COMMISSION
decides that there has been a violation of Articles 5 and 16 in relation to Ken Saro-Wiwa's detention in 1993 and his treatment in detention in 1994 and 1995;
decides that there has been a violation of Articles 6 in relation to the detention of all the victims under the State Security (Detention of Persons) Act of 1984 and State Security (Detention of Persons) Amended Decree no. 14 (1994). The government therefore has the obligation to annul these Decrees;
Reiterates its decision on communication 87/93 that there has been a violation of Article 7.1(d) and with regard to the establishment of the Civil Disturbances Tribunal. In ignoring this decision, Nigeria has violation Article 1 of the Charter;
decides that there has been a violation of Articles 4 and 7.1 (a), (b) (c) and (d) in relation to the conduct of the trial and the execution of the victims;
holds that there has been a violation of Articles 9.2, 10.1 and 11, 26, 16;
holds that in ignoring its obligations to institute provisional measures, Nigeria has violated Article 1.
Banjul, 31st October 1998.
198/97 S.O.S. - Esclaves v. Mauritania
Rapporteur:
22nd session: Commissioner Ondziel-Gnelenga
23rd session: Commissioner Ondziel-Gnelenga
24th session: Commissioner Ondziel-Gnelenga
25th session: Commissioner Ondziel-Gnelenga
___________________________________________________________________
The Facts as Presented by the Complainant:
1. SOS - Esclaves alleges that slavery remains a common practice
in Mauritania, regardless of its prohibition under the law. According
to this NGO, in a considerable number of cases, the Mauritanian
government is informed about these practices, and in some of those
cases, it occasionally supports the authors of those practices.
SOS - Esclaves cites some concrete examples in support of its
allegations.
2. In its report of March 1996, SOS - Esclaves provides the following
illustrations:
- ten Mauritanian adults sold and bought as slaves (M'barka mint
Said, Temrazguint mint M'Barek, Nema mint Ramdane, Aïchana
mint Abeid Boïlil, Mbarka mint Meriéme, Zgheilina,
Bakary, Abeid, Aïcha mint Soélim, Kneïba);
- children from four families enslaved by the masters of their
parents (the daughter of M'barka mint Meriéme, the five
children of Aïchana mint abeid Boïlil, the daughter
of Messaoud ould jiddou, and the two sons of Fatma mint Mama);
- four other children sold as slaves (Baba ould Samba, Houssein,
Mohamed Ould Maoulould, Sidi ould Matallah);
- two Mauritanian women married to their masters against their
will (Aïchetou mint M'Boyrik and Temrazguint mint M'Bareck);
- finally, six Maritanians and their families dispossessed of
their ancestral property by the masters of their parents, following
the death of the latter (Mohamed ould Bilal, Oum El Hella mint
Bilal, Bah ould Rabahl, Biram ould Abd Elbarka and M'Boyrik would
Maouloud).
3. SOS - Esclaves requested the Mauritanian government to carry
out investigations into these acts and to take necessary measures
for their eradication. However, its request was never followed
up.
The Complaint:
4. The communication alleges violation of articles 2, 3, 4, 5,
6, 7, 9, 11 and 15 of the African Charter.
Procedure:
5. The communication is dated 11 April 1997 and was received by
the Commission meeting at its 21st Ordinary Session, which was
seized of the matter.
6. On 7 July 1997, a letter of notification was addressed to the
Mauritanian government informing it of the content of the communication
and requesting it to give its reaction.
7. On 7 July 1997, a letter was sent to the complainant acknowledging
receipt of the complaint.
8. At the 22nd ordinary session held from 2 - 11 November 1997,
the Commission decided to defer action on all communications submitted
against Mauritania until the 23rd session. This was due to the
fact that it was still awaiting the reaction of the government
to the mission report that had been given to it during the 21st
session.
9. At the 23rd session, the Commission determined that some of
the information contained in the report submitted in conjunction
with the communication did not help it to establish conclusively
whether internal remedies had been exhausted. In particular, the
Commission emphasised that SOS - Esclaves should supply copies
of all judicial decisions on all the cases that it brings up in
its report, and to point out those cases that were still pending
before Mauritanian jurisdictions. This would enable it to decide
on a firm basis of knowledge as the admissibility of the communication.
10. On 25 April 1998, a copy of the communication and the letters
requesting additional information on internal procedure were given
to the Mauritanian representative at the 23rd session.
11. On 19 August 1998, correspondence was dispatched to the complainant
communicating the Commission's position to it.
12. At its 24th ordinary session, the Commission deferred consideration
of the this communication to the following session.
13. On 12 November 1998, the Secretariat addressed letters to
both parties informing them of this decision.
Law:
Admissibility:
14. In terms of the provisions of article 56, 5 of the African
Charter on Human and Peoples' Rights, "communications [......]
relating to Human and Peoples' Rights received by the Commission,
shall be examined if they [......] are sent after exhausting local
remedies, if any, unless it is obvious that this procedure is
unduly prolonged."
15. The facts alleged in the communication submitted by SOS -
Esclaves are very grave and from all appearances, contrary to
the provisions of the African Charter on Human and Peoples' Rights,
in particular articles 2, 3 and 5. However, the complainant, having
indicated that there are internal procedures initiated by the
supposed victims, does not say anything regarding the status of
those procedures. Hence, the Commission is unable to determine
whether the said procedures have been concluded or otherwise;
nor whether they have allowed the supposed victims to have their
rights restored.
16. To enable it to reach an objective determination, the Commission
requested the complainant to supply the additional information
it required. Faced with the silence observed by the latter, it
is unable to form a precise opinion regarding the facts of which
it has been seized. This would seem to indicate that the internal
remedies have not been exhausted; the Commission is of the view
that if they had been, the complainant would have made it known.
For these reasons, the Commission:
17. Declares the communication inadmissible due to non-exhaustion
of internal remedies;
18. It however acknowledges that the complainant still enjoys
the opportunity to seize the Commission again once the conditions
of article 56, 5 have been fulfilled.
Bujumbura, 5 May 1999.
212/98 Amnesty International / Zambia
Rapporteur:
23rd session: Commissioner Pityana
24th session: Commissioner Pityana
25th session: Commissioner Pityana
Summary of Facts.
1. The communication is submitted by Amnesty International
on behalf of William Steven Banda and John Lyson Chinula.
2. Complainant alleges that Zambia has violated the provisions
of African Charter in that:
(a) Mr. William Steven Banda was served with a deportation order
on 10 November 1991. The reason given was that "in my opinion
by his presence he (is) likely to be a danger to peace and good
order in Zambia". He contested the order through the courts
of Zambia.
(b) On 25 October 1994, William Steven Banda was deported to
Malawi unlawfully, wrongfully and out of political malice. He
alleges that he was blindfolded and drugged, driven by Zambian
immigration service and para-military police officers. He entered
Malawi through Mchinji border post and later dumped at Lilongwe
Police station.
(c) John Luson Chinula was removed from his home in Ndola on
31 August 1994. He was driven to Lusaka International Airport
with the intention of deporting him. He was served with a deportation
order signed by the Minister of Home Affairs alleging that he
was a threat to Zambia's peace and security. He was forcibly
sedated and later found himself at Lilongwe Police station in
Malawi. His Warrant of Deportation also alleged that he was "by
his presence, likely to be a danger to peace and good order in
Zambia". No reason in law or in fact was advanced for this
finding.
(d) Both complainants were prominent political figures in Zambia.
They were leading members of UNIP, the party that had been in
power since Independence in 1964. UNIP was defeated by MMD in
the first multi-party elections of November 1991.
3. William Steven Banda exhausted all domestic remedies in
that, his matter went to the Supreme Court of Zambia. John Lyson
Chinula could not effect any remedies through the Zambian courts
because he was deported and was given no opportunity to approach
the Zambian courts.
4. It is alleged by the complainant that prior to his forcible
expulsion from Zambia under order of deportation, William Banda
exhausted local remedies through his appeal to the High Court
of Zambia in 1992 and the Supreme Court of Zambia in 1994.
5. Complainant alleges that the Zambian government's deportation
of the two men amounted to "forcible exile".
6. Complainant alleges that attempts to seek redress through
existing national legal remedies both in Zambia and in Malawi
have been futile.
7. Complainant also charges that John Chinula was not allowed
recourse to the national courts of Zambia. He was prevented from
returning to Zambia by threats of imprisonment by the Zambian
authorities.
8. Complainant states that Banda and Chinula have obtained two
judgements at the High Court of Malawi confirming that they were
not citizens of Malawi. The government of Malawi has failed to
comply with the judgement of the Court which ordered that they
be assured to return to Zambia. They have therefore exhausted
all available local remedies at their disposal.
9. Complainant prays that the Commission adopt interim measures
to allow the deportees to return to Zambia immediately.
Complaint:
10. Complainant alleges that Articles 2, 5, 7(1)(a), 8, 9, 9(2), 10, 12(2), 13(1), 18(1), 18(2) of the African Charter have been violated.
Procedure:
11. Communication is dated 6 March 1998 and was sent by mail.
12. On 18 March 1998, a letter was sent to the complainant acknowledging
receipt.
13. At its 23rd ordinary session held in Banjul, The Gambia,
the Commission decided to be seized of this matter and declared
the communication admissible. The Commission also requested that
provisional measures be adopted by the Government of Zambia, namely
to allow the burial of Mr. John L. Chinula, in Zambia and the
return of Mr. William S. Banda to his family in Zambia pending
the finilization of the matter by the Commission.
14. On 10 July 1998, the Secretariat of the Commission wrote
to the Ministry of Foreign Affairs, Zambia, informing them of
the decision of the 23rd Ordinary Session, drawing attention to
the request for provisional measures to be taken by the government
of Zambia.
15. A copy of the Note was also sent to the Embassy of Zambia
in Addis Ababa. When there was no reply, the Secretariat sent
a reminder on 17 September 1998. The Embassy replied on 21 September
that the Note Verbale was received but did not enclose the communication
referred to.
16. The representative of the Government of Zambia appeared before
the Commission on 26th and 27th of October 1998 at the 24th ordinary
session. He presented a statement in response to the communication.
17. At the 24th ordinary session, the Commission postponed consideration
of this for a decision on the merits to the next session.
18. On 26th November 1998, the Secretariat conveyed the decision
of the Commission to the parties concerned.
19. In preparation for a hearing on this matter, the Rapporteur
for this communication requested the parties to address only some
of the critical matters he had identified. Mr. Ahmed Motala represented
Amnesty International. Mr. Clifford Msika of the Centre for Human
Rights and Rehabilitation, Lilongwe, Malawi, assisted him. Mr.
William Steven Banda was also present. The Zambian Government
was represented by Mr. Palan Mulonda, Senior State Advocate in
the Ministry of Legal Affairs accompanied by Mr. K.K. Nsemukila,
Deputy Permanent Secretary, Home Affairs Department and Ms. Lucy
M. Mungoma of Foreign Affairs Department with responsibility for
Africa and OAU relations. The Commission also heard testimony
from Mr. William Steven Banda.
The Argument:
20. Mr. Motala argued that Zambia was bound by the African
Charter which it ratified in 1984. It, therefore, was obliged
to extend the rights in the Charter to "every individual"
except where political rights are specifically indicated as in
Article 13 for example. He argued that Zambia was in violation
of Article 12 especially sub article 2 which provides that "every
individual" has a right to leave one's country and to return.
It also says that a "non-national legally admitted in a
territory of a State Party may only be expelled from it by virtue
of a decision taken in accordance with the law…". He
alleged discrimination on the basis of ethnic group and social
origin (Article 2) and on the basis of political opinion. The
treatment the complainants received violated the victims rights
to human dignity and freedom of movement. In the case of Chinula,
he was deprived of the right to have his cause heard (Article
7). He insisted that the actions against complainants were politically
motivated. They have been left in a strange country destitute.
21. Mr. Mulonda, for the government, stated that the government
did not act with political malice. It acted within the law.
The investigations against Banda began in 1976 and against Chinula
in 1974 long before the present regime came into power. He denied
that the deportees were drugged and dumped across the border.
He stated that the Malawi authorities received them. The government
of Zambia was acting within its sovereign rights in ordering its
internal affairs, regulating immigration and was within the provision
or limitation of the right stipulated in Article12: "This
right may only be subject to restriction as provided for by law
for the protection of nation security, law and order, public health
and morality".
LAW
Admissibility:
22. Admissibility of communications under the African Charter
is governed by Article 56, which sets out conditions that must
be met before they are considered by the Commission.
23. Article 56 of the Charter reads:
"Communications … shall be considered if they:
…
(5) are sent after exhausting local remedies, if unless it is
obvious that this procedure is unduly prolonged".
24. This provision of the Charter is necessarily first considered
before any substantive consideration of a complaint.
25. In the present case all local remedies have been exhausted
and there is documentary evidence made available to the Secretariat
of the Commission in support of this claim. As already stated
in the case of Chinula, the arbitrary deportation prevented him
from exercising this right.
26. The complainant has attached to the communication copies
of the following judgements/orders obtained by William Banda
and John Chinula;
· Consent Order of 13 March 1995, High Court of Lilongwe,
in Miscellaneous Cause No. 2 of 1995;
· Judgement of 30 June 1997, High Court of Malawi in Lilongwe,
in Miscellaneous Cause No. 2 of 1995;
· Judgement No. 16 of 1994, Supreme Court of Zambia in
Lusaka, in Banda vs. Chief Immigration Officer and Attorney General;
· Judgement No. JH/12 of 1991, High Court of Zambia in
Chipata, in Banda vs Chief Immigration Officer and Attorney General.
For these reasons the Commission declares the communication admissible.
MERITS:
27. Zambia ratified the African Charter on Human and Peoples'
Rights in January 1984.
28. A number of supporting documents were submitted: On Banda,
the transcript of the judgement by Kakusa J in the High Court
of Zambia held at Chipata; the judgement on appeal by Bweupe DCJ
in the Supreme Court in Lusaka. The various decisions of the
Malawi Court and affidavits submitted in support. The Government
also submitted documents on Banda and Chinula.
29. Regarding William Steven Banda, the judgement of Justice
Kakusa in the High Court is instructive. The judge found that
there was no evidence, on a balance of probabilities, to prove
that Banda was born in Zambia of Zambian parents. He found that
Banda was an unreliable witness. He, however, refused to rule
as to where Banda originated from. He dismissed all evidence
that suggested that Banda was from Malawi, as inadmissible and
hearsay. He also noted that the government had failed to produce
the alleged Malawian father of Banda. The judge also made the
following obiter dictum without justifying his opinion, that "once
it is shown on a balance of probabilities that a petitioner is
not a citizen of this Republic he becomes a deportable person
even if the country to which he must proceed is unknown …
possession of a National Registration Card … does not confer
citizenship…" (at p J25). It appears that the authorities
relied on this statement in deporting William Steven Banda.
30. The judge also expressed himself in sympathy with Banda's
predicament. He said "the petitioner has been in Zambia
for a long time and has, in his own way, contributed in the political
arena … Zambia has become almost the petitioner's only home
- a de facto situation - upon which the executive may exercise
its discretion and, maybe, consider normalising the status of
petitioner should he apply… If this court were empowered
to declare persons like petitioner be Zambians, the petitioner
would have received a favourable declaration considering his long
stay in Zambia and the role he played" (J25).
31. It is not denied that on the day of the judgement, William
Steven Banda was taken into custody and deported to Malawi. In
addition, Banda charges that his pleas that he be taken to South
Africa were ignored including his request for a five-days stay
of execution of the warrant.
32. It is evident that the Malawi Courts are irrelevant for purposes
of deciding this matter against Zambia. The fact that they declared
complainants not to be Malawi citizens is neither here nor there.
Secondly, the Commission is not competent to substitute the judgements
of the Zambian courts, especially on matters of fact. It must
be accepted that the legal processes were appropriate and conducted
in a manner that showed respect for the rule of law. The legal
processes in Zambia did not violate the principles of the Charter.
The Commission must, therefore, accept that William Steven Banda
was not a Zambian by birth or descent.
33. This does not mean, however, that the Commission should not
raise questions of law especially as the Zambian courts did not
consider the obligations of Zambia under the African Charter.
The court also failed to rule on the alleged reason for the deportation,
namely, that his presence was likely "to endanger peace and
good order in Zambia…". There was no judicial inquiry
on the basis in law and in terms of administrative justice for
relying on this 'opinion' of the Minister of Home Affairs for
the action taken. The fact that Banda was not a Zambian by itself,
does not justify his deportation. It must be proved that his
presence in Zambia was in violation of the laws. To the extent
that neither Banda nor Chinula were supplied with reasons for
the action taken against them means that the right to receive
information was denied to them (Article 9(1)).
34. The Rapporteur invited the parties to give guidance on the
authority of the Charter where it was in contradiction to domestic
law. That seems relevant because Zambia ratified the Charter
by Executive Act. That means that there is legislative process
that domesticates international human rights treaties. Mr. Mulonda
affirmed Zambia's commitment to abide by the treaties it is party
to. He also confirmed that Zambia operated a dual legal system
and that the Charter is not considered to be a self executing
measure. Nonetheless, Zambia accepted the binding character of
the Charter in Zambia.
35. By all accounts, though, Banda was in possession of Zambian
national registration certificate and a passport. For many years
he freely used these without challenge. Immediately following
the verdict of the Supreme Court, he voluntarily presented himself
to the police but he was forcibly deported. This meant that he
was denied the opportunity to pursue the option of applying for
citizenship by naturalisation in terms of the Citizenship Act.
Granted, the government argues that Banda had obtained the documents
of registration and Passport by making false claims about his
place of birth. He could not therefore, be approaching the court
with clean hands. The unstated implication being that the chances
of his obtaining naturalisation were negligible. In truth, of
course, the Court did not say that Banda was an illegal immigrant.
It simply disputed his claims to being Zambian by birth. It
was not proved, therefore, that Banda was in Zambia illegally.
It was not proved, therefore, that Banda was in Zambia illegally.
36. Zambia has contravened Article 7 of the Charter in that he
was not allowed to pursue the administrative measures, which were
opened to him in terms of the Citizenship Act. More importantly,
Zambia is in breach of Article 7(2) which says that "no one
may be condemned for an act or omission which did not constitute
a legally punishable offence at the time it was committed…"
By all accounts, Banda's residence and status in Zambia had been
accepted. He had made a contribution to the politics of the country.
The provisions of Article 12(4) have been violated.
37. The allegations of violations of Articles 2, 4, 5, 6, 9 and
10 may now be addressed. The evidence that William Steven Banda
was a political opponent of the ruling MMD cannot be lost sight
of. The manner in which he was treated was demeaning of the dignity
and status of somebody of his standing in society. It appears
that he was singled out for action because of his ethnic origin,
which incidentally, is also found in Zambia. The authorities insisted
on deporting him to Malawi even though, he told them that he knew
nobody there. There was no compelling evidence that he had roots
in Malawi having lived in Zambia, by their own admission, since
about 1964. Counsel for Zambia argued that Banda was "accepted"
by the Malawi immigration authorities. Whatever may have been
the "legal" basis for such "acceptance", Malawi
courts have ruled that they were not citizens of Malawi. In addition,
unlawful deportation could not be said to obliterate their rights
in Zambia.
38. John Lyson Chinula was in an even worse predicament. He was
not given any opportunity to contest the deportation order. Surely,
government cannot say that Chinula had gone underground in 1974
having overstayed his visiting permit. Chinula, by all account,
was a prominent businessman and politician. If government wished
to act against him they could have done so. That they did not,
does not justify the arbitrary nature of the arrest and deportation
on 31 August 1994. He was entitled to have his case heard in the
Courts of Zambia. Zambia has violated Article 7 of the Charter.
Having made that finding, the findings in para 30 of above also
obtain in this circumstance.
39. The Commission had requested provisional measures in terms
of Rule 111 of the Rules of Procedure. Zambia must be required
to allow the return of William Steven Banda with a view to making
application for citizenship by naturalisation. No evidence was
led before the Commission for compensation. The evidence is that
Banda had lost his job as governor after the 1991 elections. No
award for compensation is called for.
40. John Lyson Chinula died in Malawi. He was a prominent businessman.
His deportation must have caused prejudice to his business interests.
His family is requesting the return of his body for burial in
Zambia. The Government of Zambia should be required to grant that
wish.
41. The Government of Zambia has relied on the "caw-back"
clause of Article 12(2):
"This right may only be subject to restrictions, provided for by law for the protection of national security, law or order, public health or morality…"
42. The deportation order also stated that the deportees were
considered " a danger to peace and good order to Zambia".
The Commission is of the view that the "claw-back" clauses
must not be interpreted against the principles of the Charter.
Recourse to these should not be used as a means of giving credence
to violations of the express provisions of the Charter. Secondly,
the rules of natural justice must apply. Among these are in the
audi alterm partem rule, the right to be heard, the right of access
to the Court. The Court in Zambia, in Banda's case failed to examine
the basis of administrative action and as such, it has not been
proved that the deportees were indeed a danger to law and order.
In any event the suggestion that they were "likely"
to be a danger was vague and not proved. It is important for
the Commission to caution against a too easy resort to the limitation
clauses in the African Charter. The onus is on the state to prove
that it is justified to resort to the limitation clause. The Commission
should act bearing in mind the provisions of Articles 61 and 62
of the Charter.
43. Article 2 of the Charter reads:
"Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion political or any other opinion, national and social origin, fortune, birth or other status".
44. By forcibly expelling the two victims from Zambia, the
State has violated their right to enjoyment of all the rights
enshrined in the African Charter. This Article imposes an obligation
on the Zambian Government to secure the rights protected in the
African Charter to all persons within their jurisdiction irrespective
of political or any other opinion. This obligation was reaffirmed
by the Commission in Rencontre Africaine pour la Défense
des Droits de l'Homme / Zambia (Communication 71/92). The arbitrary
removal of one's citizenship in the case of Chinula cannot be
justified.
45. Article 9(2) states:
"Every individual shall have the right to express and disseminate his opinions within the law".
46. Both Banda and Chinula were leading politicians and businessmen.
Both had lived in Zambia for decades. Even if deportation action
had been initiated against them in 1974 and 1976, it can be safely
assumed that the action had been advanced unless it is proved
that that was due to unlawfulness, fraud or obstruction of the
course of justice. None of this was alleged. Action was accelerated
upon the assumption of office of MMD government in 1991, we are
therefore persuaded that the deportations were politically motivated.
This provision of the Charter reflects the fact that freedom
of expression is a fundamental human right, essential to an individual
personal development, political consciousness and participation
in the public affairs of his country. The Commission has to determine
whether the "deportations", being politically, motivated
violate the provisions of Article 9(2) of the African Charter
as the two victims were denied the right to freedom of conscience
as stipulated in Article 8 of the Charter.
47. Article 8 of the African Chater states:
"Freedom of conscience, the profession and free practice
of religion shall be guaranteed.
No one may, subject to law and order, be submitted to measures
restricting the exercise of these freedoms".
48. Article 10 of the Charter, which states;
"Every individual shall have the right to the free association provided that he abides by the law".
49. In deporting the two men, the government of Zambia has
denied them the exercise of their right to freedom of association.
This is so since they have been prevented from associating with
their colleagues in the United National Independence Party and
participating in their activities.
50. As the African Commission ruled in the case of John K. Modise
/ Botswana, by forcing Banda and Chinula to live as stateless
persons under degrading conditions, the government of Zambia
has deprived them of their family and is depriving their families
of the men's support, and this constitutes a violation of the
dignity of a human being. Thereby violating Article 5 of the
Charter, which guarantees the right to:
" the respect of the dignity inherent in a human being
and to the recognition of his legal status".
51. The forcible explusion of Banda and Chinula by the Zambian
government has forcibly broken up the family unit which is the
core of society thereby failing in its duties to protect and assist
the family as stipulated in Article 18(1) and 18(2) of the Charter;
(1) "The family shall be the natural unit and basic of society.
It shall be protected by the State…"
(2) "The State shall have the duty to assist the family
which is the custodian of morals and traditional values recognised
by the community".
52. Article 7(1)(a)states that:
"Every individual shall have the right to have his cause
heard…
…
(a) "the right to an appeal to competent national organs
against acts of violating his fundamental rights as recognised
and guaranteed …"
53. The Zambia government by denying Mr. Chinula the opportunity to appeal his deportation order has deprived him of a right to fair hearing which contravenes all Zambian domestic laws and international human rights laws.
FOR THESE REASONS, THE COMMISSION
holds a violation of Article 2
holds a violation of Article 7(1)(a)
holds a violation of Article 8
holds a violation of Article 9(2)
holds a violation of Article 10
holds a violation of Article 18(1) and (2)
Bujumbura, 5th May 1999.
221/98 - Alfred B. Cudjoe v Ghana
Rapporteur:
24th session - Commissioner B. Pityana
25th session - Commissioner B. Pityana
_____________________________________________________________________
The facts:
1. The complainant is a Ghanaian citizen, formerly employed at
the Embassy of Ghana in Conakry, Guinea.
2. He alleges that his contract as translator/bilingual secretary
at the said Embassy was wrongly terminated, by letter dated 24
June 1994.
3. He claims that his dismissal was based on a report produced
by the Guinean authorities, describing him as the brains behind
an attack against the Ghanaian Chancery and the Ghana Airways
offices in Conakry, perpetrated by furious Ghanaian residents.
4. The complainant states that he did not have the opportunity
of seizing any appellate authority before being dismissed for
the above-mentioned reasons.
5. The complainant presented a decision handed down by the Commission
on Human Rights and Administrative Justice of Ghana, dated 18
May 1997, to the effect that the complainant's dismissal without
benefits was null and void and that Mr. Alfred Cudjoe was entitled
to some compensation.
6. He further states that the Ministry of Foreign Affairs refused
to comply with this decision.
7. He sent a copy of the said decision to the Commission.
Substance of Grievance:
8. The complainant alleges violation of articles 7, 4 and 15 of
the African Charter on Human and Peoples' Rights.
Procedure before the Commission
9. At the 24th ordinary session held in Banjul, The Gambia,
from 22 - 31 October 1998, the Commission decided to be seized
of the communication and requested the complainant to provide
it with more information as regards the exhaustion of all internal
remedies.
10. On 26 November 1998, letters were dispatched to both parties
to inform them of the Commission's decision.
11. At the 25th session, held in Bujumbura, Burundi, from 26
April - 5 May 1999, the Commission deliberated on the admissibility
of the communication.
Law:
Admissibility:
12. In terms of the provisions of article 56, 5 of the African
Charter on Human and Peoples' Rights, "communications [......]
relating to Human and Peoples' Rights received by the Commission,
shall be examined if they [......] are sent after exhausting local
remedies, if any, unless it is obvious that this procedure is
unduly prolonged."
13. The African Commission observes that while the complainant
has attached to his dossier the decision granted in his favour
by the Ghanaian Human Rights Commission, he does not give any
indication (despite the request made to him in this regard following
deliberations at the 24th session) as to the procedure he has
followed before the courts. For, it should be clearly stated,
the internal remedy to which article 56, 5 refers entails remedy
sought from courts of a judicial nature, which the Ghanaian Human
Rights Commission is clearly not. From the African Commission's
point of view, seizing the said Commission can taken as preliminary
amicable settlement and should, in principle, considering the
employer's failure to react, be followed by an action before the
law courts.
For these reasons, the Commission:
14. In conformity with the above-mentioned provisions of the
Charter, declares the communication inadmissible due to non-exhaustion
of internal remedies.
Bujumbura, 5 May, 1999.