UNION AFRICAINE
AFRICAN UNION
African Commission on Human & Peoples' Rights
(|fi)
UNIAO AFRICANA
Commission Africaine des Droits de I'Homme & des Peuples
31 Bijilo Annex Layout, Kombo North District, Western Region,P. O. Box 673, Banjul, TheGambia
Tel: (220) 4410505/4410506; Fax: (220) 4410504
E-mail: au-baniul(Q)africa-union.org: Web www.achpr.org
Communication 427/12
SERAP (on behalf of Daniel Nsofor and Osayinwinde Agbomien)
Adoptedby the
African Commission on Hitman and Peoples' Rights
during ihe 57* Ordinary Session,from ihe 4 to 18 November 2015
Banjul, The Gambia
^rf
Hon. Commissioner Faith Pansy Tlakula
Chairperson ofthe African Commission
on Human and Peoples' Rights
Dr. Mary Maboreke
Secretaryto the AfricanCommission on
Human and Peoples' Rights
Communication 427/12: SERAP (on behalf of Daniel Nsofor and Osayinwinde
Agbomien) v Nigeria
13th Extra-Ordinary Session
57th Ordinary Session
Summary of the Complaint
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received a Complaint on 25 October 2012 from the Socio-Economic
Rights and Accountability Project - SERAP (the Complainant), against the
Federal Republic of Nigeria1 (the Respondent State). SERAP is a Nigerian
registered human rights organization with Observer Status with the
Commission. The Complaint is submitted in terms of Article 55 and 56 of the
African Charter on Human and Peoples Rights, (the African Charter).
2. The Respondent State is a State Party to the African Charter having ratified the
same on 1 October 1984.
3. The Complainant alleges that despite its obligations under the African Charter
and other international treaties to which it is a Party, the Government of the
Respondent State, through the Edo State authorities, has violated the right to a
fair trial of Daniel Nsofor and Osayinwinde Agbomien (the Victims), who are
two death row inmates at the Edo State Prison. It alleges that the Respondent
State has committed serious, persistent and irreparable violations of the Victims'
rights: to life; to competent and effective legal representation; to trial by a
competent, independent and impartial tribunal established by law; to the
presumption of innocence; to appeal to an independent and impartial tribunal;
and to fair trial guarantees during appeals.
4. The Complainant further alleges that the Victims are at risk of imminent
execution, having been convicted of murder. Under Nigeria's penal laws the
death penalty is mandatory for murder. The Complainant states that in March
2010, a Nigerian NGO - Legal Defence and Advocacy Project (LEDAP) - had filed
an Appeal on behalf of 840 inmates - including the Victims, following which an
injunction was granted by the court upholding the Appeal, but which was later
lifted in April 2012. The Complainant states that LEDAP subsequently filed
another Appeal in April 2012 following the court's decision, and that the
judgment on that Appeal is pending.
5. The Complainant alleges that it has received reports that the gallows at the Benin
prison, in Edo State, were inspected and tested on 22 October 2012, and that it
1The Federal Republic of Nigeria ratified the African Charteron 22June1983.
1
feared that the Victims would be executed by the Edo State Authorities. The
Complainant avers that the decision by the Governor of Edo State to sign the
death warrants of the Victims, whilst their Appeal is pending, constitutes a
fundamental breach of their right to fair trial, including the right to an appeal to
an independent and impartial tribunal.
6. The Complainant further alleges that the Governor of Edo State signed the
execution warrants two weeks after prison authorities informed him that death
row inmates in the Benin prison were 'becoming unmanageable.' It informs the
Commission that some death row inmates had been involved in a recent jailbreak
incident in Oko prison in Edo State. The Complainant alleges that as a means to
decongest the country prisons, the resumption of executions by Edo State follows
an announcement by State Governors in June 2011 that they would review all
cases of death row inmates and sign off executions as a means of decongesting
the country's prisons.
7. The Complainant argues that the planned execution of the Victims on the sole
ground that they are 'becoming unmanageable' while they still have their appeal
pending, does not offer a fair and effective solution to the perceived problem of
prison overcrowding.
The Complainant alleges that not only have the Victims been deprived of their
liberty and other fair trial rights, but also alleges that the Victims' conditions are
now characterized by depression/loss of sense of reality and physical and mental
deterioration; massive deprivation of personal autonomy critical to psychological
rvival; and emotional emptiness.
9. The Complainant avers that the 2004 National Study Group on Death Penalty
and the 2007 Presidential Commission on the Administration of Justice both
stressed that the Nigerian criminal justice system cannot guarantee a fair trial,
and called for a moratorium on the death penalty.
10. Quoting the Universal Declaration of Human Rights, the Complainant states that
"recognition of the inherent dignity and the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in
the world", that "[e]veryone is entitled in full equality to a fair and public
hearing... of any criminal charge", and that "[ejveryone charged with a penal
offence has the right to be presumed innocent until proven guilty according to
law in a public trial".
11. It further argues that the right to a fair trial is a fundamental safeguard to ensure
that individuals are not unjustly punished. It is indispensable for the protection
of other human rights such as the right to freedom from torture and cruel or
rfTDE5
inhuman treatment, and the right to life. It states that, however, when people are
subjected to unfair trials, justice cannot be served.
12. The Complainant further states that the Commission at its 44th Ordinary Session
in Abuja, Nigeria, in November 2008 adopted a resolution calling on African
States, including Nigeria, that still retain the death penalty to "observe a
moratorium on the execution of death sentences with a view to abolishing the
death penalty." It avers that the resolution recalled Article 4 of the African
Charter, which recognizes the right of everyone to life, and Article 5(3) of the
African Charter on the Rights and the Welfare of the Child, which guarantees the
non-application of death penalty for crimes committed by children. The
resolution expresses concerns about "the failure of some African states
[including Nigeria] to give effect to the UN resolutions and African
Commission's own 1999 resolution calling for a moratorium on executions", and
about the application of "the death penalty in conditions not respectful of the
right to a fair trial guaranteed under the African Charter on Human and Peoples'
Rights and other relevant international norms".
13. The Complainant states that the resolution also asked AU member states,
including Nigeria, that still retain the death penalty to: fully comply with their
obligations under the African Charter and guarantee to every person accused of
crimes for which capital punishment is applicable, fair trial standards; and to
include in their periodic reports information on the steps they are taking to move
towards the abolition of the death penalty in their countries.
14. The Complainant states that it considers that the application of the death penalty
in these cases will be illegal and unjust. The Complainant further considers
supervening factors such as those highlighted above to be sufficient grounds for
stopping the Edo State authorities from going ahead with the planned execution
of prisoners on death row with the unjustified and illegitimate ground that the
prisoners are "becoming unmanageable". The Complainant argues that prisoners
are not denuded of their rights by mere conviction. If carried out, the death
sentences on the Victims would amount to inhuman or degrading treatment and
unfair trial as many of the prisoners on death row have not exhausted their right
to appeal.
15. The Complainant concedes that generally, local remedies must be exhausted
prior to submitting a Communication to the Commission. However, it submits
that there are exceptions to this general rule, as the Commission has stated that
local remedies must be available, effective and sufficient. It avers that a local
remedy is considered available if the petitioner can pursue it without
impediment; it is effective if it offers a prospect of success and it is sufficient if it
is capable of redressing the complaint. It claims that the Victims' case before the
Nigerian court of appeal has been ignored by Respondent State.
Articles alleged to have been violated
16. The Complainant alleges that the Respondent State has violated Articles 1, 2, 3,4,
5, 6, and 7 of African Charter.
Prayers
17. The Complainant prays the African Commission to:
(i) Consider the present Communication under Articles 55, 56 and 58 of the
African Charter, and to undertake an in-depth study, based on the "series
of serious" and "massive" violations alleged in this Communication;
(ii) Find the Respondent State to be in violation of the Victims' right to life
under Article 4 of the African Charter; and
(iii)
Request the Respondent State to pay appropriate compensation to
the Victims for the multiple violations of their Charter rights and
freedoms.
Procedure
18. The Communication was received at the Secretariat on 25 October 2012. During
its 13th Extra-Ordinary Session held from 19 - 25 February 2013, the Commission
considered the Communication and was seized of it. On 4 March 2013 and 5
March 2013, Complainant and the Respondent State were respectively informed
of the Seizure decision, and the Complainant was requested to forward its
submission on the Admissibility of the Communication within two months of
notification, in accordance with Rule 105(1) of the Commission's Rules of
Procedure; that is, by 3 May 2013.
19. The Communication was considered between the 14th Extra-Ordinary Session of
the Commission held from 20 - 24 July 2013 and its 18th Extra-Ordinary Session
held from 29 July - 7 August 2015, but deferred due to non-submission of the
Complainant's arguments on Admissibility.
Analysis of the Commission to strike out
20. Rule 105(1) of the Commission's Rules of Procedure establishes that when the
Commission has decided to be seized of a Communication, it shall request the
Complainant to present arguments on Admissibility within two (2) months.
21. Rule 113 of the Commission's Rules of Procedure provides that when a deadline
is fixed for a particular submission, either party may apply to the Commission
for extension of the period stipulated. The Commission may grant an extension
of time for a period not longer than one (1) month.
22. To date, and more than two (2) years after the stipulated deadline, the
Complainant has not (i) made any admissibility submissions, and (ii) has not
requested for an extension of time to submit.
23. Consequently the Commission does not have sufficient information upon which
to make a determination on the admissibility of the Communication.
Decision of the Commission
24. In view of the above, the Commission decides to strike out the Communication
for lack of diligent prosecution.
Done in Banjul, The Gambia, during the 57th Ordinary Session of the African
Commission on Human and Peoples' Rights, 4 to 18 November, 2015