87/93 : Constitutional Rights Project (in respect of Zamani Lakwot and
six others) / Nigeria
Summary of Facts
1. Communication 87/93 was brought on behalf of seven men Zamani Lekwot, James Atomic Kude,
Yohanna Karau Kibori, Marcus Mamman, Yahaya Duniya, Julius Sarki Zamman Dabo and Iliya Maza
sentenced to death under the Civil Disturbances (Special Tribunal) Decree No. 2 of 1987 from Nigeria.
This decree does not provide for any judicial appeal against the decisions of the special tribunals and
prohibits the courts from reviewing any aspect of the operation of the tribunal.
2. The communication also alleges that the accused and their counsel were constantly harassed and
intimidated during the trial, ultimately forcing the withdrawal of the defence counsel. Despite the lack of
defence, the tribunal condemned the accused to death for culpable homicide, unlawful assembly and
breach of the peace.
Argument
3. The communication argues that the prohibition on judicial review of the special tribunals and lack
of judicial appeals for judgments of these tribunals violates the right to an appeal to competent
national organs against acts violating fundamental rights, guaranteed by Article 7 paragraph 1(a) of
the African Charter.
4. The communication complains that the conduct of the trials before these tribunals, which included
harassment of defence counsel, and deprivation of defence counsel, violated the right to be defended
by counsel of one’s choice, guaranteed byArticle 7 paragraph 1.
5. The communication finally complains that the practice of setting up special tribunals, composed of
members of the armed forces and police in addition to judges, violates the right to be tried by an
impartial tribunal guaranteed by Article 7 paragraph 1(d).
Law
Admissibility
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6. The case was declared admissible at the 14 Session of the Commission on the following
grounds: The case raises the question of whether the remedies available are of a nature that requires
exhaustion.
7. The Act complained of in Communication No. 87/93 is The Civil Disturbances (Special Tribunal)
Act, in which Part IV, Section 8 (1) provides:
The validity of any decision, sentence, judgment, ... or order given or made, ... or any other thing
whatsoever done under this Act shall not be inquired into in any court of law.
8. The Civil Disturbances Act empowers the Armed Forces Ruling Council to confirm the penalties of
the Tribunal. This power is a discretionary, extraordinary remedy of a non-judicial nature. The object of
the remedy is to obtain a favour and not to vindicate a right. It would be improper to insist on the
Complainant seeking remedies from a source which does not operate impartially and have no
obligation to decide according to legal principles. The remedy is neither adequate nor effective.
9. Therefore, the Commission is of the opinion that the remedy available is not of a nature that
requires exhaustion according to Article 56 paragraph 5 of the African Charter.
Merits
10. The Civil Disturbances (Special Tribunal) Act, Part IV, Section 8(1) provides:
The validity of any decision, sentence, judgment ... or order given or made... or any other thing
whatsoever done under this Act shall not be inquired into in any court of law.
11. A “decision, sentence, judgment...order given or made.. or any other thing whatsoever done
under” the Civil Disturbances Act may certainly constitute an “act violating fundamental rights” as
described in Article 7.1.a of the Charter. In this case, the fundamental rights in question are those to
life and liberty provided for in Articles 4 and 6 of the African Charter. While punishments decreed as
the culmination of a carefully conducted criminal procedure do not necessarily constitute violations of
these rights, to foreclose any avenue of appeal to “competent national organs” in criminal cases
bearing such penalties clearly violates Article 7.1.a of the African Charter, and increases the risk that
even severe violations may go unredressed.
12. The communication alleges that during the trials the defence counsel for the Complainants was
harassed and intimidated to the extent of being forced to withdraw from the proceedings. In spite of
this forced withdrawal of counsel, the tribunal proceeded to give judgment in the matter, finally
sentencing the accused to death. The Commission finds that defendants were deprived of their right to
defence, including the right to be defended by counsel of their choice, violation of Article 7.1.cas cited
above.
13. The Civil Disturbance (Special Tribunal) Act, Part II, Section 2(2) says that the tribunal shall
consist of one judge and four members of the armed forces. As such, the tribunal is composed of
persons belonging largely to the executive branch of government, the same branch that passed the
Civil Disturbance Act.
14. Article 7.1.d of the African Charters requires the court or tribunal to be impartial. Regardless of
the character of the individual members of such tribunals, its composition alone creates the
appearance, if not actual lack, of impartiality. It thus violates Article 7.1.d.
Holding
For the above reasons, the Commission
Declares that there has been a violation of Articles 7(a), (c) and (d) of the African Charter;
and Recommends that the Government of Nigeria should free the Complainants.
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At the 17 Session the Commission decided to bring the file to Nigeria for a planned mission in order
to make sure that the violations have been repaired.