102/93 : Constitutional Rights Project / Nigeria
The Facts as submitted by the Author
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1. On 12 June 1993 a presidential election was held in Nigeria. Both foreign and local election
elections was [sic] free and fair.
2. Three days later, the National Electoral Commission began announcing the election results. The
National Electoral Commission announced the results from 14 states including the Federal Capital
Territory, Abuja, before it was restrained by an Abuja High Court from announcing the election results.
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On June 23 the Federal Military Government announced the annulment of the June 12 election
results. Various reasons were given for this action. The communication alleges that these reasons
included the fact that the military government was not happy that Abiola, the Social Democratic
candidate, appeared to have won the election.
3. Dissatisfied with the decision of the Federal Military Government to annul election results, Abiola,
together with the Governors of all the States controlled by the Social Democratic Party, went to the
Supreme Court to seek redress. Shortly thereafter the Federal Military Government promulgated
several Decrees ousting the jurisdiction of the courts and restating the decision of the Nigerian
government to annul the election results.
4. Decree No. 41 of 1993 states in part:
Notwithstanding anything contained in the Constitution of the Federal Republic of Nigeria 1979, as
amended, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act or
any other enactment, no proceeding shall lie or be instituted in any court for, or on account of any act
matter or thing done or purported to be done in respect of this Decree.
5. The other Decrees promulgated are Presidential Election (Basic Constitutional and Transitional
Provisions) (Repeal) Decree No. 39, 1993; Transition to Civil Rule (Disqualification and Prohibition of
Certain Presidential Aspirants) (Repeal) Decree No. 42, 1993. These Decrees gave legal backing to
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the annulment of 12 June election results and ensure that the two presidential candidates were
banned from contesting any presidential elections in the country.
6. When activists and journalists protested the annulment of the elections, the government arrested
and detained many persons, several of whom are named in the communication.
7. The government also seized thousands of copies of magazines. The News Magazine was
proscribed by military decree in June 1993. Even prior to its proscription, copies of the magazine were
seized by security agents and four of its editors declared wanted by the police. 50,000 copies
of Tempo, a weekly news magazine, were seized by security agents and the police.
The State party’s response and observations
8. The government has made no written submission in respect of this case. In an oral submission
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before the Commission (31 March 1996, Ouagadougou, Burkina Faso, Chris Osah, Head of
Delegation), the government stated that the elections were held in circumstances that “the government
felt were not propitious” . The representative of the government stated that“[A]nnulling the election and
setting up a government, as was done, to all intents and purposes, was a coup”. The government
admitted that many people were arrested and detained at the time the elections were annulled, but
that “many have now been released” .
9. The government contends that it was within its own constitutional rights to make laws for the order
and good governance of the country, which it did in annulling the election results. The government felt
that there were irregularities which may not have been detected by the observers and that although
the elections may have been adjudged to be free and fair by all, there were fundamental problems
which the government could not brush aside. In such circumstances the government decided that
rather than put in place a government that was going to create more problems, it should form a
different government. The government formed was in any case not a military government but an
interim national government in which people from both parties were appointed to serve.
10. The government maintains that these actions were justified because some people abandoned
their offices and went to their villages, creating a chaotic situation. “What the government did was to
salvage a situation that was bad. And whatever laws it made at that time, I want this Commission to
look at it in terms of [the government] holding a solution to the problem, not as if this were geared to
any particular group of people or human rights activities...The government felt that it had to avoid
chaos and it restored an interim government, rather than even perpetuating its own regime. I think the
Commission should look rather carefully into that because it was not an ordinary situation. I could say
it was just a military coup.” (See above statement of Chris Osah).
Complaint
11. The Complainant alleges violation of the following Articles 6 and 13 of the Charter.
Procedure before the Commission
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12. The communication was received on 29 July 1993.
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13. On 6 January 1994 the Secretariat of the Commission notified the government of Nigeria.
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14. On 22 September 1994 the Secretariat of the Commission sent a reminder to the Ministry of
Foreign Affairs.
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15. At the 16 Session, the Commission reiterated the need to send a mission to Nigeria. The
Commission also decided to invoke Article 58 of the Charter by writing to the Chairman of the OAU,
drawing his attention to the grave violations of human rights in Nigeria.
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16. At its 16 session, the Commission has decided that the communication should be added to the
other files that its Members going to Nigeria were to discuss with the military authorities of this country.
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17. At the 17 Session, held in March 1995, it was decided that the communication should be added
to the cases to be taken up with the authorities by members of the mission to Nigeria.
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18. On 20 April 1995 the Secretariat of the Commission sent letters to both Complainants to inform
them of this decision.
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19. On 7 June 1995 the Secretariat to the Commission sent a letter to this effect to the Ministry of
Foreign Affairs.
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20. At the 18 Session, held in Praia, Cape Verde, the Commission renewed its decision to join this
file with those to be considered by the mission to Nigeria.
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21. On 20 December 1995 the Secretariat of the Commission sent a letter to each Complainant to
this effect.
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22. On 20 December 1995 a letter was sent to the government of Nigeria to this effect.
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23. At the 19 Session, held in March 1996, these cases were due for a decision on admissibility.
The Commission heard M Chidi Anselm Odinkalu who was duly instructed to appear for the
Complainants in all the cases except the International PEN, and heard Mr Osah and Mr Bello for the
Nigerian Government in reply.
24. At the end of the hearing the Commission took a general view on the cases and deferred taking
final decision in each case pending the accomplishment of its proposed mission to Nigeria.
25. The Commission declared the communication admissible. It further decided that all the ten files
on Nigeria in respect of which the parties were heard during this session should be entrusted to its
mission to Nigeria for consideration during the proposed visit.
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26. On 9 May 1996 a letter was sent to the Nigerian Government informing it that at the 19 session
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it renewed the decision taken at the 17 Session to send a mission to the country. It also stated that
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the communication would be considered on the merits at the 20 Session in October 1996.
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27. On 9 May 1996 letters were sent to both Complainants informing them that the communication
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had been declared admissible at the 19 Session and that the Commission had decided to undertake
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a mission to Nigeria. The merits of the case would be examined at the 20 Session.
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28. At the 20 Session held in Grand Bay, Mauritius, October 1996, the Commission decided to
postpone the final decision on the merits of the case to the next session, awaiting the result of the
planned mission to Nigeria.
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29. On 10 December 1996 the Secretariat sent a Note Verbale to this effect to the government.
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30. On 10 December 1996 the Secretariat sent letters to this effect to the Complainants.
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31. On 29 April, the Secretariat received a letter from Mr Olisa Agbakoba entitled ‘Preliminary
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objections and observations’ to the Mission of the Commission which visited Nigeria from March 7 th
14 1997. The document was submitted on behalf of INTERIGHTS with regard to 14 communications,
including this one.
32. Among the objections raised and or observations made were: “the neutrality, credibility and
relevance; and composition of the mission”.
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33. At its 21 Session held in April 1997, the Commission postponed taking decision on the merits to
the next session, pending the submission of scholarly articles and court case by the Complainants to
assist it in its decision. The Commission also awaits further analysis of its report of the mission to
Nigeria.
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34. On 22 May 1997, the Complainants were informed of the Commission’s decision, while the
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State was informed on May 28 1997.
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35. At the 22 Ordinary session, the Commission postponed taking a decision to the next session
pending a discussion of the Nigerian Mission report.
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36. At the 23 Ordinary session held in Banjul, The Gambia from 20 -29 April 1998, the
Commission postponed consideration of this case due to lack of time.
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37. On 25 June 1998, the Secretariat of the Commission sent letters to the parties involved
informing them of the status of the case.
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38. During the 24 Ordinary session, the Complainants furnished the Commission with
a “supplementary submission on pending communications on Nigeria”, basically urging the
Commission to continue consideration of communications against Nigeria including the instant one
because the violations have not abated, and the change in government following the death of General
Sani Abacha has not changed any State responsibility of Nigeria.
Law
Admissibility
39. Article 56 of the African Charter reads:
Communications...shall be considered if they:
Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged...
40. The annulment of the elections was brought before various Nigerian courts by various parties, as
was the seizure of the magazines. None of these actions resulted in a remedy of the prejudice alleged,
either reinstatement of the election results or compensation for the confiscated magazines.
41. Additionally, the jurisdiction of the courts to entertain these actions in the first place is in serious
question. Decree No. 43, like almost all decrees promulgated by the military government, contains
ouster clause which specifies that the Decree cannot be challenged in the national courts. The ouster
clauses create a legal situation in which the judiciary can provide no check on the executive branch of
government. A few courts in the Lagos district have occasionally found that they have jurisdiction; in
1995 the Court of Appeal in Lagos, relying on common law, found that courts should examine some
decrees notwithstanding ouster clauses, where the decree is "offensive and utterly hostile to
rationality" (Reprinted in Constitutional Rights Journal). In a unanimous opinion the Court of Appeal
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holden at Lagos on December 12 1996 in the case of Chief Gani Fawehinmi v General Sani Abacha,
Attorney-General of the Federation, State Security Services, Inspector General of Police, held that the
African Charter being the joint effort of States, no legislative body in Nigeria could oust its operation
and application in Nigeria. Dr A.H. Yadudu, Special Adviser (Legal Matters) to the Head of State of
Nigeria underscored the importance of this case in a written address to the members of the
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Commission to Nigeria on Friday, March 14 1997. However, it is fair to state that at the time the case
came before the Commission no effective legal remedy existed in Nigeria of which the appellants
could avail themselves.
42. Furthermore, the Constitution (Modification and Suspension) specifies that even decrees that
may lack an internal ouster clause cannot be challenged. Thus, Nigerians face huge legal obstacles in
challenging any new law.
43. The Commission, in its decision on communication 129/94, decided that in this situation, "it is
reasonable to presume that domestic remedies will not only be prolonged but are certain to yield no
results.” ( ACHPR\S1\129/94:9 ).
44. For these reasons the Commission declared the communication admissible.
Merits
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45. In his presentation at the 19 Session, the representative of the Complainants expressed his
view that an amicable resolution of the alleged violation of Article 13, concerning the annulled
elections, was impossible because the government had already indicated that the issue was not
negotiable. The representative of the Complainant requested the Commission to clarify the legal
situation by indicating if there had been a violation of the Charter.
46. The Government of Nigeria, through its official representative, referred to "irregularities that may
not have been detected by the [international] observers.” and that "though the elections may have
been adjudged free and fair by all.", they were held in" circumstances that the government felt were
not propitious.” (See statement of Osah, above.)
47. The government stated that "[A]nulling the elections and setting up a government, as was done,
to all intents and purposes, was a coup.” These statements accord with the Complainant's argument
that the question of the election can no longer be the subject of meaningful negotiation. Although the
present government contends that there were "irregularities” in the elections, it fails to explain what
these were. The government acknowledges that international observers of the elections, applying
international standards, judged them to be free and fair. Yet it discounted the judgement of these
international observers and substituted its own, unsupported, judgment.
48. A basic premise of international human rights law is that certain standards must be constant
across national borders, and governments must be held accountable to these standards. The criteria
for what constitutes free and fair elections are internationally agreed upon, and international observers
are put in place to apply these criteria. It would be contrary to the logic of international law if a national
government with a vested interested in the outcome of an election, were the final arbiter of whether the
election took place in accordance with international standards. In the case the government does not
even attempt to defend its decision to overrule the judgement of international observers
49. Article 13.1 of the Charter reads:
Every citizen shall have the right to participate freely in the government of his country, either directly or
through freely chosen representatives in accordance with the provisions of the law.
50. To participate freely in government entails, among other things, the right to vote for the
representative of one's choice. An inevitable corollary of this right that the results of free expression of
the will of the voters are respected; otherwise, the right to vote freely is meaningless. In light of this,
the annulment of the election results, which reflected the free choice of the voters, is in violation
of Article 13.1.
51. Article 20.1 of the Charter provides:
[All peoples] shall freely determine their political status...according to the policy they have freely
chosen.
52. The right of a people to determine their "political status" can be interpreted as involving the right
of Nigerians to be able to choose freely those persons or party that will govern them. It is the
counterpart of the right enjoyed by individuals under Article 13.
53. The election at issue here, held in conditions adjudged to be free and fair by international
observers, was an exercise of the right of Nigerians to freely determine this political status. The
subsequent annulment of the results by the authority in power is a violation of this right of the Nigerian
people.
54. Article 6 of the African Charter guarantees that:
Every individual shall have the right to liberty and to the security of his person. No one may be
deprived of his freedom except for reasons and conditions previously laid down by law. In particular,
no one may be arbitrarily arrested or detained.
55. The government does not dispute that many people, including human rights activists and
journalists, were detained without having charges brought against them and without the possibility of
bail. The government maintains that "many" of these individuals have since been released. Where
individuals have been detained without charges being brought, particularly since the time of the
elections, a period of now over three years, this constitutes an arbitrary deprivation of their liberty and
thus violates Article 6.
56. In the words of Article 9 of the African Charter:
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.
57. The government justifies its actions with regard to the journalists and proscription of publications
by reference to the "chaotic" situation that transpired after the elections were annulled. The
Commission decided, in its decision on communication 101/93, with respect to freedom of association,
that "competent authorities should not enact provisions which limit the exercise of this freedom. The
competent authorities should not override constitutional provisions or undermine fundamental rights
guaranteed by the constitution and international human rights standards” ( ACHPR\A\101/93:16 ).
58. With these words the Commission states a general principle that applies to all rights, not only
freedom of association. Government should avoid restricting rights, and take special care with regard
to those rights protected by constitutional or international human rights law. No situation justifies the
wholesale violation of human rights. In fact, general restrictions on rights diminish public confidence in
the rule of law and are often counter-productive.
59. Given that Nigerian law contains all the traditional provisions for libel suits, a governmental
proscription of a particular publication, by name, is of particular concern. Ad hominem legislation, that
is laws made to apply to specifically one individual or legal entity raise the acute danger of
discrimination and lack of equal treatment before the law guaranteed byArticle 2. The proscription
of The News thus constitutes a violation of Article 9. Equally, the seizure of 50,000 copies of
Tempo and The News Magazine justified in the face of Article 9 of the Charter.
Holding
For the above reasons, the Commission
Holds a violation of Articles 1, 6, 9 and 13 of the African Charter;
Appeals to the Government of Nigeria to release all those who were detained for protesting against
the annulment of the elections; and to preserve the traditional functions of the court by not curtailing
their jurisdiction.
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Banjul, 31 October 1998.