40/90 : Bob Ngozi Njoku / Egypt
The Facts as alleged by the Complainant
1. The communication is submitted by a Nigerian student who was in transit from New Delhi to
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Lagos. He complains that at the Cairo Airport, on 20 September 1986, while he was waiting for his
connecting flight, Colonel Mohamed El Adile of the Egyptian police stamped a false entry visa for
Egypt on his travel papers.
2. As a consequence, his luggage was searched. A suitcase bearing another person's name, of a
different weight than that recorded on his ticket, and for which he had no key, was ascribed to him.
The Egyptian police did not ask the airline to identify the owner of the suitcase. Drugs were found in
the suitcase.
3. In the presence of two Nigerian diplomats, Mr Njoku denied that the suitcase was his. A police
officer wrote down a statement in Arabic, which the three signed, without it having been translated for
them. The subsequent trial was held behind closed doors, without a translator being present for the
defendant.
4. Apparently, the Arabic statement signed by the Complainant contained the admission that the
suitcase was his. The Complainant did have a lawyer, but complains that the lawyer was ineffective
and appeared afraid of the judge. The trial lasted only 5 minutes and there was no translator present.
The Complainant was given a life sentence under a law specifying this punishment for importers of
drugs who have visas for Egypt, whose final destination is Egypt and who cross into Egyptian territory.
The complaint argues that none of these three conditions applies to him, as he was a transit
passenger with no Egyptian visa who wished to remain in the airport. The Complainant's appeal was
rejected.
5. Article 33 of the Egyptian Criminal Code prohibits the searching of transit passengers. The
Complainant argues that the interception and search of transit passengers is a common practice by
the Egyptian police, and has been condemned by Dr Adwar Gali of the Legal Commission of Egypt.
The former director of the Drug Enforcement Agency has stated that the Egyptian criminal code
nowhere provides for transit related cases and that Egypt is intercepting people only because of
international conventions on drug abuse.
6. The Complainant argues that the judge who sentenced him, Mr Anwe Gebali, believed the
testimony of the police colonel who forged the Egyptian visa in the Complainant's passport. The
Complainant exhausted his last appeal in March 1991.
Facts According to the Government of Egypt
7. The government agrees that on the date in question the Complainant was arrested in the transit
lounge at Cairo airport, and that the visa for Egypt was stamped in his passport only so that he could
be admitted into Egypt for investigations of the case, but that the time at which he acquired the visa
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was found irrelevant by the courts. The government representative stated at the 19 Session that the
transit area is "a free zone for customs only", not for crime, and under the anti-drug convention of New
York, States parties may not permit individuals to carry drugs into another State party.
8. The government states that the validity of the Complainant's arrest in the transit lounge was raised
by his lawyer during his trial, and that this was his first grounds for overturning his conviction on
appeal, but the Supreme Court refused his appeal and the conviction became final.
9. The government states that the Complainant then availed himself of a special process by which
appeal to the attorney general is possible, and raised the point that the confession attributed to him
was not valid. The government said that in the attorney general's review of the case it was found that
the court did recognise that the Complainant had denied guilt in the case; no confession was used.
10. The government states that the Complainant had access to all the protections of Egyptian law,
that during the investigations he was represented by a private attorney, a representative of the
Nigerian consulate, and during the trial he had a lawyer chosen by the bar association and paid for by
the court. As evidenced by the appeals brought before the High Court, the Supreme Court, and the
Court of Cassation, the lawyer did a competent job.
11. The government states that the Complainant was tried and convicted under the 1961 Egyptian
drug law, which was in force in 1986. This law was revised in 1995, but the changes made the law
harsher and would not be to the advantage of the Complainant.
12. The government further claims that the communication is inadmissible because the Working
Group of the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN
decided not to take any action in respect of a communication from Mr Njoku.
Procedure
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13. The communication is dated 10 October 1989. It was originally sent to the Secretary General of
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the OAU, who forwarded it to the Commission. It was received on 12 April 1990.
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14. The Commission was seized of the communication at the 7 Ordinary Session, and the Ministry
of External Affairs and Ministry of Justice of Egypt were notified on 31st May 1990. The Complainant
was also notified of this decision.
15. Between 1990 and 1995, several letters were exchanged between the Secretariat and the parties
to ascertain the various issues raised by the protagonists as well as the exhaustion of local remedies.
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16. At the 17 session, held in March 1995 the Commission declared the communication admissible
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and it was decided that the case should be heard on its merits at the 18 Session.
17. On 31st March 1995, a letter was sent to the Complainant stating that his case had been
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declared admissible at the 17 Session.
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18. On 31st March and 20 May 1995 letters were sent to the government of Egypt requesting further
information.
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19. On 23 June 1995 copies of the letter of 31st March and decision were sent to him.
20. On 1st September 1995, a letter was sent to the Complainant requesting him for further
information with regard to the legal basis for the sentence he received.
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21. On 11 September the Complainant responded to the Secretariat's letter of 1st September.
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22. On 30 November 1995 the Secretariat sent a Note Verbale to the Ministry of Foreign Affairs of
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Egypt informing it that it would examine the case at the 19 Session.
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23. On 19 December 1995 a letter was sent to the Complainant acknowledging receipt of his
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previous three letters, and informing him that his case would be heard on its merits at the 19 Session.
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24. On 20 December 1995 the Complainant wrote to the Secretariat with details on a court
judgement relating to transit cases, enclosing a photocopied newspaper article describing the
judgement, and a translation of it that he had made.
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25. On 23 January 1996, the Secretariat of the Commission sent a copy of the complainant's
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20 December 1996 letter and a copy of the newspaper article to the Ministry of Foreign Affairs of
Egypt.
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26. On 13 February 1996 the Commission received a letter, dated 6 February 1996, from the
Embassy of Egypt in Dakar with a copy of the government's submission on the case.
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27. At the 19 session, in March 1996, the Commission heard the representative of the Egyptian
Government, but deferred taking a final decision, pending receipt from the Egyptian Government of the
Egyptian law or laws under which the complaint was dealt with.
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28. On 26 July 1996 the Secretariat received a letter from the Complainant acknowledging receipt of
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the letter of 8 May 1996 and stating that as he could not appear in person at the session in October
1996, he requested that the Secretary or an NGO represent him.
29. On 1st August 1996 a copy of the Secretariat's last letter to the Complainant was sent to the
priest indicated by the Complainant. With it was sent a summary of the presentation of the government
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at the 19 Session.
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30. On same date a copy of the Secretariat's letter of 8 May 1996, requesting copies of laws, was
sent to the government of Egypt. With it was sent a summary of the presentation of the government at
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the 19 session, for the government's approval.
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31. On 13 August 1996 the Secretariat acknowledged receipt of the letter dated 22 June and
informed the Complainant that as neither the Secretary nor the Commission could represent him at the
session, a list of NG0s was attached whom he could contact.
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32. On 13 August 1996 the Secretariat sent a letter to the Egyptian Organisation for Human Rights
requesting that they represent Mr Njoku at the session.
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33. On 13 August 1996 the Secretariat received a letter from the Complainant informing it that he
had already contacted the Egyptian Human Rights Organisation who had agreed to represent him at
the session.
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34. On 27 August 1996 the Secretariat received a letter from the Complainant giving the names of
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the two lawyers who would be representing him at the 20 Session, in their private capacities.
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35. On 23 September 1996 the Secretariat received a letter from the Egyptian Organisation for
Human Rights with the Complainant's power of attorney.
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36. On 8 October 1996 the Secretariat received a letter from the Complainant stating that his
punishment was harsher than authorised by Egyptian law.
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37. On 9 October 1996 the Secretariat received a Note Verbale from the Embassy of Egypt in Dakar
giving additional information and asking whether it would still be necessary to send a representative to
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the 20 Session of the Commission.
38. The same date, the Secretariat sent a letter to the Embassy of Egypt in Dakar acknowledging
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receipt of the latter's Note Verbale of the 9 October 1996 and answering that the Secretariat still
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found it important that Egypt send a representative to the 20 Session.
39. On 21st October 1996 the Secretariat received a letter from the representative of the
Complainant asking the Commission to postpone the consideration of the communication because of
new information.
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40. At the 20 Session held in Grand Bay, Mauritius, October 1996, the Commission decided to
postpone the decision to the following session.
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41. On 10 December 1996 a Note Verbale to this effect was sent to the government. The Note
Verbale also asked the government to send relevant laws to the Secretariat.
42. On the same date, the Secretariat sent a letter to the Complainant, informing him of the decision
of the Commission to postpone the consideration of the communication.
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43. On 10 January 1997 the Secretariat sent a letter to Mr Monieb, informing him of the decision
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taken by the Commission at its 20 Session.
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44. On 23 January 1997 the Secretariat received a Note Verbale from the Embassy of Egypt in
Dakar, informing the Secretariat that the Working Group on Communications of the Sub-Commission
on Prevention of Discrimination and Protection of Minorities of the UN had decided not to take any
action in respect of a communication submitted by Mr Njoku.
45. On 31st January 1997 the Secretariat received a letter from Mr Njoku summarising his case and
giving examples of Egyptian case-law in drug related cases.
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46. On 3 February 1997 the Secretariat sent an acknowledgement of receipt to Mr Njoku, enclosing
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a copy of the Embassy's letter of 23 January 1997.
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47. On 11 February 1997 the Secretariat sent a letter to the Embassy of Egypt in Dakar informing it
that all relevant information would be taken up by the Commission at its 21st session and requesting it
once more to send copies of the relevant laws.
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48. On 8 April 1997, the Secretariat received letters from the Complainant reiterating the facts of the
case and indicating cases of individuals prosecuted on similar grounds and who, according to the
Complainant, received lighter sentences.
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49. On 23 April 1997, the Secretariat renewed its request to the Embassy of Egypt in Senegal for
the provision of the relevant legislative enactment against drug trafficking, as well as examples of
case-law dealing with passengers on transit charged with drug trafficking. The Embassy was also
informed of cases presented to the Secretariat by Mr Ngozi Njoku.
50. On 21st May 1997, the Secretariat received a Note Verbale from the Embassy of Egypt in
Senegal forwarding copies of the legislative instruments in force relating to drug trafficking in Arabic
(as well as amendments made thereto) as requested by the Commission. The Note Verbale also
underscored that there was no special law applicable to passengers on transit in Egypt and therefore
that the latter were subject to the same law.
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51. On 28 May 1997, the Secretariat informed the Complainant of the defendant's response.
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52. On 9 July 1997, the Secretariat acknowledged receipt of the Complainant's last letter and on the
same day sent a Note Verbale to the Embassy of Egypt seeking the reaction of its government to the
information provided by Mr Ngozi Njoku.
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53. At the 22 Ordinary Session held in Banjul, (The Gambia) from 2 to 11 November 1997, the
Commission took a decision on the merits of the case.
Law
Admissibility
54. Article 56, paragraph 7 of the African Charter on Human and Peoples' Rights stipulates inter
alia that “communications shall be considered if they do not deal with cases which have been settled
in accordance with the principles of the Charter of the United Nations, or the Charter of the
Organisation of African Unity or the provisions of the present Charter."
55. The Defendant State maintains that the communication should be declared inadmissible on the
grounds that the Working Group of the United Nations Sub-Commission on the prevention and
protection of minorities seized of the matter by Mr Ngozi Njoku decided not to entertain the case.
56. The Commission, considering the provisions of the above-mentioned article, observes that the
said text talks about "cases which have been settled…’’ It is therefore of the view that the decision of
the United Nations sub-commission not to take any action and therefore not to pronounce on the
communication submitted by the Complainant does not boil down to a decision on the merits of the
case and does not in any way indicate that the matter has been settled as envisaged under Article 56
paragraph 7 of the African Charter on Human and Peoples’ Rights. The Commission therefore
rejected the arguments of the Defendant.
57. On the issue of exhaustion of local remedies as provided for by Article 56 paragraph 5, the
Commission observes that the Complainant has exhausted all local remedies provided for by Egyptian
Law, including the possibility of having the case reviewed. Moreover, the government has not
indicated existence of remedies other than those used by the Complainant.
58. For all these reasons, the Commission declared the communication admissible.
Merits
59. Both the Complainant and the Defendant (State) admit that Mr Ngozi Njoku was arrested in the
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transit zone of Cairo Airport on 20 September 1986, whilst he was on his way to Lagos from New
Delhi. They also admit that drug was found in a suitcase which was alleged to belong to the
Complainant, the latter was tried and sentenced to life imprisonment, that he was provided with the
services of a Lawyer and that he exhausted all local remedies in 1991.
60. Apart from these points of convergence, the rest of the communication contains serious
divergences as regards the information provided by the parties. It does not however behove the
Commission to judge the facts. This is the responsibility of the Egyptian courts.
61. The role of the Commission in such a case is to ensure that during the process from the arrest to
the conviction of Mr Ngozi Njoku, no provision of the African Charter on Human and Peoples' Rights
was violated. It is also incumbent on it to ensure that the Defendant State respected and indeed
enforced its own law in total good faith. To all these questions, the Commission responded in the
affirmative.
Holding
On these grounds:
1.
2.
The Commission considers that no provision of the African Charter on Human and Peoples' Rights has
been violated and therefore declares the communication closed.
Gives mandate to Commissioner Isaac Nguema to pursue his good offices with the Egyptian government
with a view to obtaining clemency for Mr Ngozi Njoku on purely humanitarian grounds.
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Banjul, The Gambia, 11 November 1997.