UNION AFRJCAINE
AFRICAN UNION
UNIAO AFRJCANA
African Commission on Human & Peoples' Rights
31 Bijilo Annex Layout,
Commission Africaina des Droits de /'Homma & des Paup/as
Kombo North District,
Western Region, P. 0.
Box 673, Banjul,
ThaGambia
Tai: (220) 4410505/ 4410506; Fax: (220) 4410504
E-mail: au-ban"u/
africa-union.or
· Web www.achpr.o,
C o m m u n i c a t i o n 653/17
Desmond Nunugwo
v
Nigeria
Adopted by the
,4frlcan Commission on Human and Peoples' RighJs
during the 65"0rdtnary Session heldfrom 21 October to JO November 2019
Banjul, The Gambia
........•
,
Ms.
.
Lindiwe KbnmaJo
.
'
• Ag. Secretaly to the Afiican Commission on
H
uman
and Peoples' Rights
Decision of the African Commission on Human and Peoples' Rights
on Admissibility
Communication 653/17 - Desmond Nunugwo v. Federal Republic of Nigeria
Summary of the Complaint:
1.
The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat),
Desmond
received
a
Nunugwo
Complaint
(the
on
Victim),
25
February
from
Rose
2017
on
Breivogel
behalf
and
Mr
of
Elizabeth
Baumerich (the Complainants), who are represented by Rechtsanwalt Holger
Hembach of Hembach Legal (the Representative).
2.
The
Complaint
is
submitted
against
the
Federal
Republic
of
Nigeria
(the
Respondent State), State Party to the African Charter on Human and Peoples'
Rights (the African Charter).'
3.
The
Complainants
submit
that
they
are
the
Victim's
sisters,
and
that
they
currently reside in Germany. The Complainants state that the Victim was born
in Lagos, Nigeria, in 1965. They further state that the Victim was Chief Protocol
Officer at the Ministry of Defence of the Respondent State, and died "in the
night of 9/10 June 2016 after being taken
into custody
and
interrogated by
officials of the Economic and Financial Crimes Commission (EFCC)."
4.
The Complainants allege that on 9 June 2016, the Victim went to his attorney's
office to obtain legal
advice on a private matter. They further allege that at
approximately 5 p . m . , operatives of EFCC entered the Jaw office and took the
Victim
to
the
premises
of
EFCC
in
Abuja.
The
Complainants
add
that
"it
appears that he was questioned".
5.
The Complainants aver that about six (6) hours after his detention, the Victim
was
taken
to
an
Complainants add
undisclosed
hospital,
where
he
died
shortly
after.
The
that the Victim was 51 years old and that he had been in
perfect health condition before his detention.
6.
The
Complainants
submit
that
the
EFCC
issued
a
press
release
after
the
Victim's death, stating that the Victim "had fraudulently obtained 91 Million
Nigerian
Naira
(approximately
3,
143,
619
U SO)
from
an
acquaintance
by
le a ding her to belie ve that he coul d invest it in a profitable way in Dub a i . " The
Complain a nts furthe r subm i t that the
had
confessed
tr ansferring
30
to
havi n g
M illion
received
Nigerian
press
the
N aira
release contends that the Victim
money
from
his
ac
to an account in Nor
nee
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and
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7.
The Complainants allege that the press release also states that an investigation
into the circumstances of the Victim's death would be launched, but they add
that
as
at
the
time
of
submission
of
the
Complaint,
"no
effective
and
independent investigation has been carried out."
8.
The
Complainants
established,
no
state
autopsy
that
has
the
been
Victim's
cause
performed,
of
the
death
has
officers
interviews have not been identified and questioned,
not
been
conducting
the
no indictment has been
lodged, no arrests have been made and no information on the circumstances of
the Victim's death has been made available to his family.
9.
The
Complainants
contend
that
family
members
of
the
Victim
and
legal
representatives engaged by the family, have on multiple occasions drawn the
attention of authorities, including the EFCC Chairperson, the divisional police
station, the Minister of Justice and Attorney General of the Respondent State
and
the
Nigerian
Embassy
in
Germany,
to
the
unclear
circumstances
surrounding the Victim's death and the need to investigate the matter.
10. The Complainants aver
that the EFCC has not responded
to two (2)
letters
dated 27 June 2016 and 11
August 2016; the divisional police station has also
not
urging
responded
to
a
letter
the
conduct
of
an
investigation;
and
the
Nigerian Embassy in Germany informed the Complainants that it would pass
the letter to the appropriate bodies.
11. The Complainants submit that upon further inquiry at the police station, they
were informed
that
the
Victim
died
of natural
causes,
without any
further
explanation.
12. The
Complainants
further
representative of the Ministry
submit
that
of Justice and
following
their
complaint,
Attorney
General
a
had assured
them that an independent probe into the Victim's death would be carried out.
The
Complainants
state
that
upon
follow-up
letters
by
their
legal
representative as well as Amnesty International in Nigeria, which seized itself
of the matter, the Ministry of Justice ultimately referred the case back to local
police. The Complainants add that local police "consulted on matters regarding
the case with the EPCC, the very body suspected of being responsible for Mr
Nunugwo's death."
13. The Complainants allege that w h i l e there has been some discussion on experts
suitable to conduct the post mortem and the way to proceed, there is v i r tu a l l y
no progress in the investigation, and no serious steps have been taken to clarify
the circumstances of the Victim's death.
14. The Complainants state that the widow of the Victim appeared on a television
reality
show
aimed
at bringing
human
rights
issues
to
the attention
of
the
public, in which she related how she became aware of the death of the V" .,4-.n=:=;,=,;,:::'
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through a press release issued by the EFCC. The Complainants further
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evidence of questions regarding the Victim's death in the custody of the EFCC
being put to the Acting Chairman of the EFCC on the occasion of a hearing in
the Senate of the Respondent State on 15 March 2017, to which he was unable
to offer an explanation or present any tangible outcomes of the investigation.
15. The
Complainants
submit
that
on
24
March
2017,
a
representative
of
the
Victim's family wrote to the President of the Senate, informing him about the
Victim's death, the steps taken by his family to ensure an effective investigation
and
the failure of the authorities
to act.
They
state
that on
29 March
2017,
Senator Benjamin Uwajumogu drew the attention of the Senate to this petition,
and that after urging the Senate to look into the matter, it was referred to the
Committee
on
Ethics,
Privileges
and
Public
Petitions.
The
Complainants
submit that they are not aware of any outcome in this regard.
Articles alleged to have been violated
16. The Complainants alleges violation of Articles 1, 4, 5, 6, and 7 of the African
Charter.
Prayers
17. The Complainants request the African Commission on Human and Peoples'
Rights
(the
African
Commission)
to
find
a
violation
of
the
above-stated
provisions of the African Charter.
Procedure
18. The Secretariat received the Complaint on 25 February 2017 and acknowledged
receipt of the same by letter dated 3 A p r i l 2017.
11
19. The Commission considered
and
decided
to be seized
the Complaint during its 60'
of it.
The seizure decision
Ordinary Session
was transmitted
to
the
Parties on 13 J u n e 2017 and the Complainants were requested to submit on the
Admissibility of the case within two (2) months.
20. By letter and Note Verbale dated 25 August 2017 the Secretariat informed the
Parties
that
the
Commission
deferred
consideration
of
the
Communication
during its 22 d Extra-Ordinary Session.
01
21. The Complainants' submissions on Admissibility dated 11 August 2017 were
received
at
the
Secretariat
Respondent State by
Respondent
State.,
on
22
September
Note Verbale dated
·;-·-·
sit on
2017
and
transmitted
to
the
24 November 2017, requesting the
Admissibility
within
sixty
(60)
days
from
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22. By letter and Note Vcrbale dated 07 J u n e 2018 the Parties were informed that
the Respondent State had been granted an additional thirty (30) days within
which to submit on Admissibility.
23. By letters and Notes Verbales dated 18 September 2018 and 16 November 2018
the Parties were informed that the timeline for submission by the Respondent
State had expired.
24. By letters and Note Verbales dated 08 March 2019 and 06 June 2019, the Parties
were informed that consideration of the Communication was deferred to a later
Session.
Admissibility
The Complainants' Submissions on Admissibility
25. The Complainants submit that
the Communication
is admissible,
as all
the
requirements under Article 56 of the African Charter have been met.
26. The Complainants submit that the requirement under Article 56(1) is fulfilled,
as
the
Complaint
indicates
the
authors,
contains
their
names,
places
of
residence, date of birth, professions and relation to the deceased Victim.
27. The Complainants aver that the Communication is compatible with the African
Charter, as the Complainants invoke a violation of the right to life and personal
integrity (Article 4), the prohibition of torture (Article 5), the right to liberty and
security (Article 6), the presumption of innocence (Article 7) and the obligations
of State Parties under Article 1 to adopt legislative or other measures to give
effect to the rights under the Charter.
28. The Complainants further submit that the Communication is neither written in
disparaging
nor
insulting
language,
and
merely
contains
an
account of the
events which have taken place following the arrest of the Victim.
29. The Complaints further s u b m i t that the Complaint is not exclusively based on
news disseminated through the mass media, as the Complainants are the sisters
of the Victim and have personal knowledge of the circumstances of his death.
The Complainants aver that the Victim's family
them before the Nigerian authorities and
hired a lawyer to represent
to ensure that light is shed on the
circumstances surrounding the Victim's arrest and demise. They submit that
they
are
regarding
regularly
their
informed
case,
and
through
the
consequently,
personal knowledge of the matter.
lawyer
their
about
Complaint
all
is
developments
based
on
their
of the EFCC, and
suddenly
died
incumbent
that despite being in
a few
on
the
hours after
Nigerian
perfect health
prior
to his arrest,
he
he was detained. They submit that it was
authorities
to
carry
out
a
swift
and
thorough
investigation into the circumstances that led to the Victim's death, and that they
have failed to comply with this obligation.
31. The Complainants state that members of the Victim's family have pointed out
to the authorities that the circumstances of his death have to be investigated,
but his cause of death has not been established to date, the person responsible
for his death had not been identified and no light has been shed on the events
leading to his passing.
32. The Complainants reiterate the facts as captured in paragraphs 9 to 12 above,
adding that no autopsy had been carried out to the date of submission of the
admissibility submissions that the Victim's body remains in the morgue and
his
family
is
unable
to
give
him
a
proper
burial
and
obtain
closure.
The
Complainants submit that the Victim's family cannot be expected to take any
further legal step in order to exhaust domestic legal remedies, as it is incumbent
on
the State
custody.
to carry
The
underscores
out an
Complainants
effective investigation if a person dies
refer
to
the
large
body
of
case
law
in State
which
this obligation on states,2 submitting that the Respondent State
cannot dodge this obligation by referring the Complainants to take further legal
steps
on
their
own.
The
Complainants
also
submit
that
the
procedure
of
domestic legal remedies is unduly prolonged.
33. The Complainants aver that the Complaint was submitted w i t h i n a reasonable
time frame, in that they waited several months to give the Nigerian authorities
time to investigate the matter. In addition, they s u b m i t that they also went to
the
Attorney General and
the Senate of Nigeria.
However,
they submit that
when it became clear that the authorities are not going to shed
light on the
circumstances leading to the Victim's death, they submitted the complaint to
the African Commission. The Complainants submit that they neither submitted
their complaint prematurely nor did they hesitate too long before submitting
the complaint. In conclusion, the Complainants state that the case has not been
settled.
The Respondent State's S u b m i s s i o n s on Admissibility
34. Despite the fact that the Commission requested the Respondent State to submit
its arguments and evidence on a d m i s s i b i l i t y in accordance with Rule 105 (2), as
well as granting an extension in this regard, no response has been received. In
such cases the Commission has held that in the absence of a response from the
2
European Court of Hu ma n Rights in Fnnziyevn v Russia; Sl111111kavn v. Russia; Sli111a11i v. France; Mu rndynn
Respondent
State,
it
must
decide
on
the
submissions
provided
by
the
Complainant.'
Analysis of the African Commission on Admissibility
35. The Commission recalls that Article 56 of the African Charter sets out seven
requirements that a Communication brought under Article 55 of the African
Charter must satisfy in order to be admissible, which apply conjunctively and
cumulatively."
36. In relation to the requirement in Article 56 (1) of the African Charter, which
provides that Communications should indicate their authors even if the latter
requests anonymity, the Complainants submit that this requirement is fulfilled,
as
the
Complaint
indicates
the
authors,
contains
their
names,
places
of
residence, date of birth, professions and relation to the deceased Victim. The
Commission confirms
indicated
in
the
that
the identity
Communication,
and
address of
and
the Complainants
accordingly
finds
that
is
the
Communication satisfies Article 56 (1) of the African Charter.
37. Article 56 (2) requires that the Communication must be compatible with the
Charter of the OAU or the African Charter. The Complainants aver that the
Communica tion
is
compatible
with
the
African
Charter,
as
it
invokes
a
violation of the right to life and personal integrity (Article 4), the prohibition of
torture (Article 5), the right to liberty and security (Article 6), the presumption
of innocence (Article 7) and the obligations of State Parties under Article 1 .
38. The Commission confirms
that
the Respondent State is a State Party to the
African Charter, having ratified the Charter on 22 June 1983. Additionally, as
the
alleged
violation
took
place
in
2016,
the
Commission
finds
that
the
Complaint was brought after ratification. ln relation to the requirement that the
must allege pri111n facie violations of rights protected by
Communication
African
Charter,
the
Commission
takes
note
of
the
submission
the
by
the
Complainants relating to the specific provisions of the Charter alleged to have
been
violated,
Commission
and
finds
thus
finds
that
these
that
do
the
indicate
a prinw jacie
Communication
violation.
complies
The
with
the
"written
in
requirements under Article 56 (2).
39.
Article
56
(3)
requires
that
a
Communication
must
not
be
disparaging or insulting language directed against the State concerned and its
institutions or to the OAU (now
that
the
Communication
is
African
neither
Union)." The Complainants submit
written
in
disparaging
nor
insulting
language, and merely contains an account of the events which have taken place
following
the
arrest
of
the
Victim.
The
Commission
has
in
reading
the
Complaint not come across anything which would amount to disparaging or
insulting language. The Commission therefore finds that the requirement in
Article 56 (3) has been met.
40. Article 56 (4) of the Charter requires that the Communication must not be based
exclusively on news disseminated through the mass media. The Complainants
submit
that
the
Complaint
is
not
exclusively
based
on
news
disseminated
through the mass media, as the Complainants are the sisters of the Victim and
have personal knowledge of his death. The Complainants further aver that the
Victim's
family
hired
authorities,
who
their
and
case,
a
lawyer
regularly
to
informs
consequently,
represent
them
them about all
their
Complaint
is
before
the
Nigerian
developments
regarding
based
on
their
personal
knowledge of the matter. Based on this submission, the Commission finds that
the requirement in Article 56 (4) has been met.
41
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43.
e
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7,
9,
t d to
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espond nt
with
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May
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C
EFC
para
31.
respect of Zamani Lakwot and six others) v
Nigeria, 22 March 1995, 'adcqaute and effective'. Communication 7 1 / 9 2 : Rencontre africaine pour la
defence des droits de !'Homme (RADDHO) / Zambia, 31 October 1997, para 6.Communication 318/06
- Open Society Justice Initiative v. Cole d'Ivoire, 27 May 2016, para 40. Communication 435/12 - Eyob
B. Asemie v the Kingdom of Lesotho, 13 February 2015, para 63. Communication 284/03 Zimbabwe
Lawyers for Human Rights & Associated Newspapers of Zimbabwe/Republic of Zimbabwe, 3 A
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para
81.
African Commission
on
H u m a n and Peoples'
Rizhts v.
ts
Republic of Kenya,
Aprv.:
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Chairperson, the divisional police station, the Minister of Justice and Attorney
General
of the Respondent State and
the
Nigerian Embassy
in Germany.
In
addition, it is submitted that the EFCC in a press release also made reference to
the death of the Victim and indicated that it would be investigated.
44. The
Complainants
in
this
regard
submit
that
to
date,
"no
effective
and
independent investigation has been carried out", noting in particular that the
Victim's
cause
of
death
has
not
been
established,
no
autopsy
has
been
performed, the officers conducting the interviews have not been identified and
questioned, no indictment has been lodged, no arrests have been made and no
information on the circumstances of the Victim's death has been made available
to his family. In addition, they state that no responses were received to letters
to the EFCC and divisional police station, that the Ministry of Justice referred
the case back to the local police, who "consulted on matters regarding the case
with
the
EFCC,
the
very
body
suspected
of
being
responsible
for
Mr
Nunugwo's death."6 The Complainants also allege that while there has been
some discussion on experts suitable to conduct the post mortem and the way
to proceed, there is v i r t u a l l y no progress in the investigation.
45. Whereas the State had clearly failed in its duty to investigate, the Commission
should in addition be satisfied that the Complainants had exhausted all local
remedies
available
to
vindicate
their
rights
through
the
national
judicial
processes. The fact that the State knew or should have known of the violation
is not enough to relieve the Complainants of fulfilling this requirement. Local
remedies in this regard should be exhausted
violations
which
are
brought
before
the
in respect of the alleged rights
Commission.
Thus
it
should
be
determined whether there are any judicial remedies at domestic level which
could
have
been
pursued
by
the Complainants
to compel
the State and
its
responsible authorities to take the steps to undertake the requisite investigation
and facilitate access to justice for the rights allegedly violated. The purpose of
requiring the exhaustion of domestic remedies is to affirm the primacy of the
national
courts,
where
remedies
are
faster
attainable
and
more
readily
enforceable, with regional mechanisms f u l f i l l i n g a complementary role where
national judicial remedies are unavailable, ineffective or insufficient.
46. In the present case the Complainants have failed to indicate that they had taken
any such steps, and neither did they indicate that they approached local courts,
nor that it was impossible to do so. In this regard, the Commission takes note
from general information on the Nigerian legal system that the high courts of
Nigeria have inherent jurisdiction to supervise the proceedings and decisions
of a person or body of persons charged with the performance of a public duty,
by way of judicial review of administrative decisions, as provided
for under
Order 34 of the Federal High Court Rules 2009; and also that by virtue of the
Fundamental Rights (Enforcement) Procedure Rules and the African Chart
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on
Human
and
Peoples'
Rights
(Ratification
and
Enforcement)
Act,
1990,
human rights actions could have been instituted. The Complainant has neither
referred to these possible procedures, nor steps taken in respect of the same, or
why they may not be available or sufficient. For these reasons, the Commission
finds that the Complainant had failed to meet the requirement under Article 56
(5).
47. Article
56
(6)
of
the
African
Charter
provides
consider Communications which "are submitted
from
the
time
domestic
Commission
is
seized
requirement
"is
quite
remedies
of
the
related
are
the
The
the
Commission
or
from
Commission
principle
shall
within a reasonable period
exhausted
matter."
to
that
of
the
the
date
the
held
that
this
of
local
exhaustion
remedies in accordance with article 56(5)," and that where domestic remedies
have
not been exhausted,
Complainant
the
time
opportunity
has
to
not begun
to
run
bring a Complaint.
7
such as
to
afford
the
As domestic remedies
have not been exhausted in the present case, the reasonable time period cannot
be computed,
and
the Commission finds
that the admissibility requirement
under Article 56 (6) of the African Charter is not met.
48. The
Complainants
Complaint
has
Commission
not
thus
indicate
been
finds
that
settled
that
the
in
compliance
before
any
other
with
Article
international
requirement under
Article
56
56
(7),
forum.
(7)
has
the
The
been
complied with.
49. For the reasons set out above, the Commission finds that Article 56 (1), (2), (3),
(4) and (7) have been met, but that the Complainant has failed to meet the
criteria for Article 56 (5) and (6).
Decision of the African Commission on Admissibility
50. In view of the above, the African Commission on Human and Peoples' Rights
decides to:
1.
Declare the Communication inadmissible for failure to comply with Article 56
(5) and (6) of the African Charter; and
ii.
Notify its decision to the parties in accordance with Rule 107 (3) of its Rules of
Procedure.
Done in Banjul, The Gambia, at the 65th Ordinary Session, held from 21 October
to 10 November 2019
9