Communication 425/12- Legal Defence and Assistance Project (on behalf of Mr.
Abiodun Subaru) v. The Federal Republic of Nigeria
52nd Ordinary Session
16th Extra- Ordinary Session
18th Extra- Ordinary Session
1. The Complaint was received by the Secretariat of the African Commission on
Human and Peoples’ Rights (the Secretariat) on 2 October 2012. The Complaint is
filed by Legal Defence and Assistance Project (the Complainant) on behalf of Mr.
Abiodun Subaru (the Victim) against the Federal Republic of Nigeria (the
Respondent State1), a State Party to the African Charter.
2. The Complainant alleges that on 29 August 2009, the Victim was sleeping in his
house in Lagos State, Nigeria, when four officers of the Nigerian Police Force
stormed his house and arrested him. The Police officers broke his door and had
in their company, his neighbor and friend called Mr. Hope Ufot. The police
officers asked him whether he knew the said Hope Ufot, to which he answered
in the affirmative.
3. The Complainant further alleges that the Police officers immediately handcuffed
the Victim and took him to the Police Station. While at the Police station, the
Victim was informed that there had been a robbery incident at a neighboring
house. The Victim was informed that Hope Ufot was the first suspect and that
since he and Ufot were friends, they suspected that he knew something about the
robbery. The Complainant states that the Victim denied knowledge of the
incident and refused to sign a confessional statement.
4. The Complainant avers that in the course of interrogation by the Police officers,
the Victim was subjected to torture. He was beaten with a wooden baton and
cutlass on his back and hands, thereby inflicting deep injuries; and an engine
block was placed on his back causing him to defecate involuntarily.
5. The Complainant states that on 31 August 2009, the Victim was brought before a
Magistrate Court in Lagos, together with Ufot, on charge of conspiracy to
commit armed robbery and was remanded in Ikoyi Prison, pending the advice of
the Directorate of Public Prosecution (DPP) of Lagos State on his case. The
Complainant further states that the Victim was merely brought before the
Magistrate Court for the sole purpose of remanding him in prison as Magistrate
Courts in Nigeria do not have jurisdiction to try capital offences. Armed robbery
1 The Federal Republic of Nigeria ratified the African Charter on 22 June 1983.
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is an offence punishable with death under the Criminal Code Law of Lagos State
and the Robbery and Firearms (Special Provision) Act. The Complainant alleges
that the Victim has been in prison since then and has not been brought to Court
till date.
6. The Complainant avers that by virtue of section 35 (4) and (7) of the Constitution
of the Federal Republic of Nigeria, 1999 (Nigerian Constitution), persons arrested
upon suspicion of committing offences other than capital offences must be
brought before a court of law within three (3) months or be released
unconditionally or on bail; but however, that persons arrested upon suspicion of
committing capital offences (such as the Victim) do not have to be taken to court
within the three (3) months period. They are also not entitled to bail, and in the
absence of any obligation requiring the State to conclude criminal proceedings
instituted against them, most of them, including the Victim, may remain in
detention for long periods of time before their trials are concluded.
7. The Complainant alleges that it is therefore not possible for accused persons such
as the Victim to constitutionally challenge their detention for indefinite periods
of time since their detention is sanctioned by the Nigerian Constitution which is
supreme. The Complainant further alleges that Nigerian Courts have
consistently held that in the event of a conflict between the African Charter and
the Nigerian Constitution, the latter prevails.
Articles alleged to have been violated
8. The Complainant alleges that Articles 1, 2, 3,4,5,6 and 7(1) of the African Charter
have been violated by the Respondent State.
Procedure
9. The Communication was received by the Secretariat on 2 October 2012, and was
seized by the African Commission on Human and Peoples’ Rights (the
Commission) at its 52nd Ordinary Session which took place from 9-22 October
2012, in Yamoussoukro Cote d’ Ivoire.
10. On 5 November 2012, the Secretariat informed the parties of the seizure decision,
and requested the Complainant 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.
11. On 21 December 2012, the Complainant forwarded its submissions on
Admissibility. This was transmitted to the Respondent State on 4 January 2013,
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and it was requested to forward its submission on Admissibility within 2 months
of notification, in accordance with Rule 105(2) of the Commission’s Rules of
Procedure.
12. On 30 April 2013, the Secretariat informed the parties that the deadline for
submission by the Respondent State on Admissibility had passed and that the
Commission had, at its 53rd Ordinary Session held from 9 to 23 April 2013,
decided to proceed with the determination of the Admissibility of the
Communication, on the basis of the available information.
13. At the 15th Extra-Ordinary Session and the 55th Ordinary Session of the
Commission, the Communication was deferred due to time constraints.
14. At its 16th Extra-Ordinary Session, held in Kigali, Rwanda, from 20 to 29 July,
2014, the Commission considered the Admissibility of the Communication and
declared the same admissible.
15. On 5 August 2014, the Secretariat informed the parties of the Admissibility
decision and requested the Complainant to forward its submission on the Merits
of the Communication within sixty (60) days of notification, in accordance with
Rule 108(1) of the Commission’s Rules of Procedure, that is, by 4 October 2014.
16. The Communication was considered during the 17th Extra-Ordinary Session of
the Commission held from 19-28 February 2015 and its 56th Ordinary Session
held from 21 April-7 May 2015, but deferred due to non-submission of the
Complainant’s arguments on the Merits.
Analysis of the Commission to strike out
17. Rule 108(1) of the Commission’s Rules of Procedure establishes that once a
Communication has been declared admissible, the Commission shall request the
Complainant to submit observations on the Merits within a period of sixty (60)
days.
18. 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.
19. To date, and more than nine (9) months after the stipulated deadline, the
Complainant has not (i) made any submissions on the Merits and (ii) has not
requested for an extension of time to submit.
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20. Consequently the Commission does not have sufficient information upon which
to make a determination on the Merits of the Communication.
Decision of the Commission
21. In view of the above, the Commission decides to strike out the Communication
for lack of diligent prosecution.
Done in Nairobi, Kenya, during the 18th Extra-Ordinary Session of the African
Commission on Human and Peoples’ Rights, 29 July to 7 August, 2015
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