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AFRICAN UNION
UNION AFRICAINE
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African Commission on Human & Peoples' Rights
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UNIAO AFRICANA
Commission Africaine des Draits de f'Homme & des Peuples
31 Bijilo Annex Layout, Kombo North District, Westem Region,P. O. Box 673, Banjul, TheGambia
Te/.' (220) 441050514410506, Fax: (220) 4410504
E-mail: au-banju/@africa-union .org; Web wwwachpr.org
COMMUNICATION 270/2003
ACCESS TO JUSTICE
V
FEDERAL REPUBLIC OF NIGERIA
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Communication 270/2003 - Access to Justice v Nigeria
SUMMARY OF THE COMPLAINT
1. The Secretariat of the African Commission on Human and Peoples' Rights
(the African Commission or the Commission) received a Complaint on 2
November 2002 from Access to Justice (AJ), a Non-governmental
Organization, hereinafter called the Complainant.
2. The Communication is submitted against the Federal Republic of Nigeria, a
State Party to the African Charter (hereinafter 'referred to-. as the Respondent
State or Nigeria), concerning the "sev~r-al ·hundre~ v.i ctims
relatives of
victims of extra-judicial, summary anct'arBitrary _ ~xeG1:lifi\>ns and oTher human
rights violations.,,1
ana
3. The Complaint alleges that alt).llo11gh t\1~ ascension to poWer of President
Obasanjo in 1999 offered high hop_e s of Raradigm shift in Nigeria's human
rights practices, the latter's Gover ent.J1as don~ little to effect a positive and
meaningful change in the 'human v'ghtsi andscap,e, particularly by ending the
n1:ement ptac-tices. he Complaint states that
legacy of impuni in law
abuses of hUll1M iil tliroug ' itrary, summary and extra-judicial killings
are wide spread and rife and ill mearly four years since Nigeria's transition
to democrati __r Ie, many hun eds continue to lose their lives to summary
and arbitrary Rillings by law en:f;prceme;, t agencies and militia groups.
a
4. Th '
~1; a lthough criminal standards for punishing
deliD ra te omic;ides em~1n
he statute books, political will to prosecute
law e~}femen1t,officers who arbitrarily kill is virtually absent or at best, very
slack. ~. J~residenttaI authority, the Complaint alleges, the military has
continued to be drafted mto vengeful civil operations that inflict huge human
casualties ap~ displacements in densely populated areas exacerbating a
frightful pan'- ernic of arbitrary killings across the country. It further alleges
that the incumbent Police Chief's order to policemen to open fire at any
person who attack police stations, formations and barracks gave what is
literarily a "blank cheque,,2 to police officers to inflict further indiscriminate
violence against civilians, exacerbating an already staggering record of
human killings.
1 Page 1 of Complainant's Initial submission.
2 Page 3 ofInitial submission.
5. The Complaint states that extra-judicial killings have been carried out by both
police and paramilitary (vigilante) groups as a result of raging crime and the
abysmal failure of the police to secure lives and property. These groups - the
0' duaPeoples Congress (OPC) in the west, the Bakassi Boys in the East, and
the Egbesu in Niger Delta, the Complaint states - all receive a wide measure
of community approval and acclaim for their work in exterminating those
alleged to constitute threats to public security, peace and property. The
Complaint states that these vigilante groups carry out gruesome, wide spread
killings of their own, whilst they have also been used in politically motivated
killings.
6.
7.
8.
instances at all stages of the
9.
to investigate promptly
• The Odi, C oba, Zaki Biam incidences;
• Richard Okoro and Celestine Okoroafor;
• Ajah 4 killings;
• Ayuba Parakoyi case;
• Miss Olajumoke Akinseye;
• Alleged extra-judicial killings have been carried out by both police and
paramilitary (vigilante) groups - including the 0'duaPeoples Congress (OPC) in
the west, the Bakassi Boys in the East, and the Egbesu in Niger Delta;
2
8
Alleged extra-judicial killings by state agents that span until January 2004
including, among others, the killing of between 9 to 14 civilians in July 2003 in
Lagos, Abuja and Port Harcourt during civil protests to which the police
responded with live bullets;
• The Complainant has also enclosed several written affidavits from various
individuals alleging the various killings enumerated in the complaint and a
video coverage of a conference in which various statements were made in light of
the claims made by the complaint;
" Murder of the Apo Six;
• The alleged murder of hundifetls of people in Odi, a town in Bayelsa State,
also in the oil-rich South-South region oi the t · . try, on 13th November 1999 by
soldiers acting on Presidential orders fQllq ing
murder of 12 police officers
by some unknown Odi miIitan:ts;
• Several inei.dents of extra-judicial killings perpetrated by vigilante groups;
8
Akinseye and Obiajulu killings;
" The 2005 case of some Enugu State Uruversity students' (namely: Murphy
Opara, Emeka Madubosa, Uchenna Asogwa, lkechukwu Asogwa, Chemezie
Ugwu and Kelechi Chukwu);
• In July 2003,9 - 14 civilians were allegedly killed in Lagos, Abuja and Port
Harcourt durig civil protests. Police fired live bullets into unarmed crowds of
supporters. The police issued blanket denials of culpability for the killings even
3
before carrying out any investigations. It alleges that the killings were widely
condemned in the country. The Senate (Upper house of the National Assembly)
asked one of its Standing Committees to investigate the killings. The Committee
whose report was endorsed indicted the police and recommended the
identification and appropriate sanctioning of the policemen who were
responsible for the Killings. The Police authorities have not complied with the
Senate recommendations;
State
• On 31 ® cember 2003, a policeman on guard duty at the premises of a
bank in Idolow I~agos, reportedly shot one Emmanuel Ikechukwu in the head;
• In the mo . g of 13 January 2004, two police officers pursued Emeka
Okoye, 26, a bus conductor, until he fell in a Lagoon and drowned. The
policemen were reported to have ask him to surrender his money which he
refused. He ran and the policemen pursued him, caught him and clubbed him.
He attempted to jump over a railing, but one of the policemen caught his feet and
he fell into the Lagoon;
- - -- - - - -- - - - - -
--
of anti-robbery policemen at Tettlow Road, Mbaise Junction, Owerri, Imo State.
The policemen, who reportedly were acting on a distress message that a Toyota
Hilux has been stolen shot father and son in cold blood. The police could not
establish that they were robbers;
In its 15 December 2004 request for Provisional Measures,
Complainant cites over a 100 cases of extra-judicial killings by the police.
•
the
• In late January 2004, three men, two of whom were police officers were
shot dead by police officers. The police officers were sllot dead in Abia State
under circumstances that police authorities describep: as mistil"ken identity. The
third, an unidentified commercial motobiker was' shot dead when he refused to
yield to a demand for N20 by a police constable.
11. PRAYERS OF "FHE CO PLAINANJ
The Complainant is calling upon ; e Commission to:
• Conderi1;n the human }:"ghts v~olations, which constitute the subject
matter ofi:Mis Communica,tion, in the strongest terms;
e t State to respect its human rights obligations
•
espondent State to bring the perpetrators of the
u pon
violati0ns to justice.
•
Establisn an Independent Committee to
investigate extra-judicial
killings with powers to recommend the prosecution or otherwise of
culprits of unlawful killings and make recommendations of adequate
compensation to be paid to families of victims of unlawful killings,
among other things.
•
Pay adequate compensation to all victims or their families.
5
PROCEDURE
12. The Complaint was dated 2nd November 2002 and received at the Secretariat
on 13 th November 2002 by post.
13. At its 33 rd Ordinary Session held in Niamey, Niger from 15 th to 29 th May 2003,
the African Commission examined the complaint and decided to be seized
thereof.
15. A similar reminder was sent out to the' parties on 6th August'and 17th October
2003.
to the 35 th Ordinary
Session.
19. On 13 th Pebrua'iy 2004, the Secretariat forwarded a copy of these submissions
to the Respondent State reminding it to also forward its written submissions
on admissibility of the communication. This was copied to the Respondent
State's High Commission in Banjul, The Gambia.
20. On 6th April 2004, the Secretariat received further submissions on the issue
from the complainant.
6
21. On 29 th April 2004, the Secretariat forwarded a copy of the Complainant's
further submissions to the Respondent State and reminded it to forward its
written submissions on admissibility of the communication.
22. At its 35 th Ordinary Session held in Banjul, The Gambia from 21 sl May to 4th
June 2004, the African Commission examined the complaint and decided to
defer its consideration on admissibility to the 36 th Ordinary Session,
requesting the Respondent State to forward its written submissions on
admissibility and for the complainant to send more information on the
allegations contained in the complaint with relevant .evidentiary materials
substantiating the same.
23. On 17th June 2004, the Secretariat informed both paKties of this de.cision.
24. A reminder was sent to both parties on ')';th Sep't~m.ber 20,04.
~r ary
Q 5· the Secretariat wrote to the Respondent State
informing it of this decision and forwarding to it the complainant's
submissions _n admissibility through the delegation of the African
Commission C)111 a promotional mission to the Respondent State.
29. That of the Respondent State was forwarded to the Complainant on 28 th
February 2004.
30. The Chairperson of the African Commission sent an appeal for a provisional
measure to the President of the Respondent State through the latter's High
Commission in Dakar, Senegal on 12th April 2005.
7
31. At the 37th Ordinary Session held in Banjul, The Gambia from 27ih April to
11th May 2005, the African Commission considered this Communication and
decided to defer its decision on admissibility to the 38 th Ordinary Session to
give more time to the Respondent State which claimed that it had not
received the complainant's submissions.
32. On 5 th May 2005, the delegates of the Respondent State at the said Session
were informed of this decision and furnished with copies of the submissions
from the complainant on the admissibility. The complainant was similarly
notified of this decision on 5 th May 2005.
33. On 21 st July 2005, the Secretariat received the summary of the oral
submissions of complainant, which was forwaraed to the Res'pondent State.
34. On 12th September 2005, the Secretaria
State.
the
of the
a COR
complainant ~ijt were received
37. On 30 th Febrtiary 2006, the
deciSion at the 38fli' Session.
of the
38. On
rdinary session held from 11 - 25 May 2006 in Banjul, The
Gambia, the ommission considered the communication and decided to
defer consideration on admissibility to its 40 th session.
40. At its 40 th Ordinary Session, the African Commission considered and decided
to defer its decision on admissibility to the 41 st Ordinary Session.
41. At its 41 st Ordinary Session, the African Commission considered the
Communication and decided to declare it admissible.
8
42. On 8 th July 2007, the Secretariat of the African Commission notified both
parties of this decision.
43. On 4th September 2007, the Secretariat received the complainant's written
submissions on the merits.
44. On 20 th September 2007, the Secretariat received the Complainant's updated
version of its written submission on the merits.
45. The Secretariat forwarded these to the Respond~t State on 7th September
2007.
46. On 21 st November 2007, the Secretariat received, f om 1;:lie d elegation of the
Federal Republic of Nigeria attending the 42Q,d,0rdinary~~sion, the
Respondent State's submission on themeflts.
A
47. These were hand-delivered to
Ordinary Session.
'
"-"\
~. e c roplainanttS·lawyer a,tt~nding the 42 nd
49. On 14th May 28rr O, at 47th Ordina1W; ession, in Banjul, Gambia, the Secretariat
received additional Exhibits from Com;Rlainants.
Session inf N ovember 2012, the Communication was
ADMISIBILITY
Submission on Admissibility
50. The Admissibility of a Communication submitted in conformity with Article
55 of the African Charter is governed by the conditions stipulated in Article
56 of the same Charter. This Article lays down seven (7) conditions, which
generally must be fulfilled by a Complainant in order for a Communication to
be declared Admissible.
51. Of the seven conditions, the Respondent State claims that the Complainant
has failed to fulfil two of the conditions, namely, Article 56(4) and 56(5).
9
Consequently, these are the only two provIsIOns of Article 56 that are
contentious between the parties in respect of the question of Admissibility of
the Communication. The Commission will therefore focus on the said
provisions only.
52. In its submission under Article 56, the Complainant avers that
a. although the Communication makes considerable references to media
sources, it was not filed on the strength of ihform'atien derived from
media sources alone as it includes cas~s w ith resHec to which the
Complainant carried out its own investigatiolls and wi
espect to which
it made legal representations to the. .-reletr,qnt au~ql!iges fl .helialLof the
families of the victims [Article 56(4)];:
.
53. In pleading the Commission f ' .exempt .it fToJil;it~ the requirem ents of Article
56(5) of the Charter, the ComplainCi.Rtfargues t:1{at
1.
2.
The Respondent State's Submission on Admissibility
54. In its rebuttal of Article 56(4), the Respondent State claims that the allegations
of the Complainant are exclusively based on news reports which should not
be given credence and an exaggeration with the objective of embarrassing the
Government of Nigeria and exploit the provisions of Article 58(1).
3 It cites Communications 29/89, 47/90,56/91, 100/93 .
10
55, Concerning Article 56(5), the Respondent State avers that exhaustion of local
remedy is one of the conditions precedent before the Commission shall be
seized of a matter submitted to it. It argues that it 15 a fundamental
requirement that must be met and can and shall only be waived under very
limited circumstances. It further argues that exhaustion of local remedy is a
well established principle in customary international law that must be
exhausted by the aggrieved party..
56. In addreSSing the exceptions to Article 56(5) the RespondeQ.t State argues that
the question now is whether the Complainants' ~ase ·falls within the exception
to Article 56(5) to warrant the African Commissien to waiv.e ~ompliance with
this mandatory requirement. It submits that the Complainants' c,ase does not
fall within the exceptions for the following reasons - that
•
•
Ample local remedies 'are , availaJjje to vi'G:,t ims who allege
violation of their rights, includiPg, civil ytechanisms ~P ' ~o the Supreme
Court of Nigeria;
,
There are other addition,a l mecli~sms for redress, such as the
National Human 'Rights Co~mis.sion, 'Rublic Complaints Commission,
Federal Characte'f E'Qmmissi n, Gode ot ~onduct Bureau, Citizens'
Rights DepaI'tment 0f the:. Federal ,' 'say of Justice and Legal Aid
Council,
•
•
THE AFRICAN COMMISSION'S ANALYSIS ON ADMISSIBILITY
57. The African Commission has examined the Complaint and the submissions of
both parties under Article 56 of the African Charter.
58. While the submissions of the Respondent State on Admissibility do not
appear to challenge the Complainant under sub-Articles 1,2,3,6, 7 of Article
56, the parties' submissions are at variance under sub-Articles 4 and 5.
11
59. Under sub-article 4, the Respondent State claims that the Complaint is
exclusively based on media reports of allegations of violations of human
rights. The Complainant, on the other hand, avers that while its Complaint
makes considerable references to media sources, it was not filed on the
strength of information derived from media sources alone as it includes cases
with respect to which the Complainant carried out its own investigations and
with respect to which it made legal representations to the relevant authorities
on behalf of the families of the victims.
60. In examining Article 56(4), the Commission relies on . its jurisprudence
wherein it dealt with similar cases. In Communication 147(95 and 149/96 Sir
Dawda K Jawara/The Gambia,4 the Commission h ad -.held tnat "w He it would
be dangerous to rely exclusively on ne\VS' q.iS&emina,"ted frpm th mas,s media,
it would be equally damaging if tHe COJIl.:l;Ilissi6n were to eject a
Communication because some aspec'!i$ of it are based on n ews disseminated
through the mass media. This ' borne):l.!;lt of ilie fact that the ,Charter makes
use of the word 'exclusively.'" rt '~nt on to aa&
.
61. The CQ ,missrom,has taken a careful look at the submissions from the
Compla' ant!
ile ', ~s admitted that some of the allegations draw upon
media repor ,most of the information contained therein cannot be said to be
based excl sfvely on news disseminated through the mass media. For one
thLl1g, the Q , lainant has indicated that on occasions, it did its own
research in asc"ertaining the facts, which the Respondent State has not denied
in its entirety. The Complainant alleges extra-judicial execution and has
enumerated a number of such cases in its submissions. The Respondent State,
on the other hand, while claiming that the Complaint relied on news reports,
still admitted that there were indeed instances of extra-judicial killings in the
country which it said its authorities continue to deal with.
4 13th
Annual Activity Report of the African Commission.
12
62. Reading through the Complaint, it is clear that that the Communication is not
based exclusively on news disseminated through the mass media, but rather
on primary information provided by the Respondent State itself, the
Complainant's research and an exhaustive list of names and addresses as
provided by the Complainant, which has not been denied by the Respondent
State. The African Commission, thus, is of the view that the claim that the
Complainant's allegations as filed before the African Commission are
exclusively based on news report cannot be sustained. Accordingly, the
Commission rilles that the Communication complies with Article 56(4) of the
African Charter.
63. The core of contention of the two parties on tll.e issue of A;:dmissibility lies
over the requirement of exhaustion of local rem edies s s tip,ulated under
Article 56(5) of the African Charter . . '1'hJs JjQVision pFOvip,es that
Communications should be 'sent atter exlia:usting 10GaI remedies, if any,
unless it is obvious that this proce Ulie is unduly! p olonge- "
64. In human rights law it is suprei ely imp~rtantfot a person wliose rights have
been violated to make use of dorriespc remedies to right the wrong, rather
than address the issu to an interllatiO .' al body. 5 The rule of exhaustion of
local remedies is widel . ecognifedU>y tlie.majoii:i!Rternational human rights
treaties. For instanCle, the
t rpational "'Q 0venant on Civil and Political
Rights 6 and its. opu0~al Pro col f, the 'g irropean Convention on the
Protection of H uman Rights and Fundamental Freedoms 8and the American
Convention o~ uman Righ 9' all rec§.gnize the principle of exhaustion of
local remedies. Similarly, the M rican Charter, as indicated above, has a
prd' . l IDn that dea with exhaustion of local remedies. The rille is founded on
the
~ . e . that
. ' n , .d ' effective implementation of international
obligati ' IlS in . ' e field of human rights is designed to enhance the enjoyment
of human rigJ;i'ts nOt ~damental freedoms at the national level and this is
5 Nsongurua 1. Udomba a So Far, So Fair: The Local Remedies Rule in the Jurisprudence of the African
Commission on Human and Peoples' Rights (2003) 97 The American Journal ofInternational Law (2003)
9.
6 International Covenant on Civil and Political Rights adopted on 16 December 1966, Art 41 (1)( c).
Optional Protocol to the International Covenant on Civil and Political Rights adopted on December
1966, Art 2.
7
8
European Convention on the Protection of Human Rights and Fundamental Freedoms, Art 35(1 ) .
9 American Convention on Human Rights adopted on 22 November 1969, Art 46.
13
supplemented by the fact that "local remedies are normally quicker, cheaper,
and more effective than international ones."IO
65. The rationale, therefore, behind the exhaustion of local remedies rule is that a
state should be given the opportunity to address the issue before the matter is
brought before international treaty bodies. In the African human rights
system, the Commission has confirmed and reconfirmed this position in its
decisions. For example in Free Legal Assistance Group and Others v Zaire and
Recontre Africaine pour la Defense des Droits de ['Homme v Zambia, the African
Commission stated that the requirement of exhausu", - of local remedies is
founded on the principle that a government Sftoul(l hav~ notice of human
rights violation in order to have the opportuhi~ to remedy such violations
before being called before an international boay.ll./f'his rovision also
enables the African Commission to avoiQ 121~ing e role of Gouti1 of first
instance, a role that it cannot under an}( circurrtstances arrogate to itsel1.12
a
Cl evaluate the submissions
68. The Gompla' an owe er. argues that in the present Communication an
exceptio , to tlfte emaustion of domestic remedies rule would apply if the
local re e6'fe. are un v ilable, inadequate or ineffective. It argues that the
Complainf ~onstitutes a compelling exception to the requirement of
exhaustion f local remedies and requests the Commission to waive this
requirement a fiemonstrated in its jurisprudence. In rebutting the allegations
10 Ibid.
Free Legal Assistance Group and Others v Zaire
(1995) para 36 & Communication 71/92 - Reconfre Africaine pour La Defense des Droits de I'Homme v
Zambia (1997) para 10. 10th Annual Activity Report: 1996-1997.
11 Communication Nos. 25/89, 47/90, 56/91, 100/93 -
and arguments of the Complainant, the Respondent State avers that the
exhaustion of the local remedy rule is a fundamental requirement that must
be met and can and shall only be waived under very limited circumstances. It
calls upon the Commission not to admit what it describes as 'spurious claims
that cannot be substantiated.,l3 It further argues that ample and effective local
remedies are available to victims who allege violation of their rights,
including civil mechanisms up to the Supreme Court of Nigeria. 14
69. The Commission has always held the view that the i11!tial burden is on the
Complainant to prove that they have met the requirement set out in Article 56
(5) of the African Charter. Thereafter, the burden shifts to the Respondent
State, if it contests the Complainant's allegations that remedies are available,
effective and sufficient. The Commission has uneq'l1Jvocally heM that when a
Government "argues that the Commuui:c.atiOn must pe dec area IDgdl:nissible
because local remedies have not bee~ exhausted, the Government then has
the burden of demonstrating the existence of silc1n. remed.ies./Il5 The onus is
thus on the Respondent Sta'te; to demonsttafe that lo<saI remedies are
available, sufficient and effective. 1.6.
70. As has been stated supra, th 'ugh
concerned an qpporhmiJY t Fern dy a grieN,a nce through its own domestic
legal system,l7 tHe Commission: . las stated that
not hold this requirement
to apply liter:ally in cases where it' impracticable or undesirable for the
Complainant to . seize the aomesflc courts. lS Accordingly, the African
Co~ssion in Dawda Jawara v IEJre Gambia,l9 stated that for a Complainant to
will
14 See supra, para5S.
15 Recontre Africaine Pour la Defense des Droits de I'Homme v. Zambia, Comm.71192, 21 sl Ordinary
Session, Tenth Annual Activity Report(l997) at para.12.
16 See Dawda K Jawara v. Gambia, 147/95 and 149/96.
17 See for example the Social and Economic Rights Action Center and the Center for Economic and Social
Rights v Nigeria, Communication No. 155/96, para 37-39, 2001.
18 See for example, Amnesty International v Sudan, Communication Nos. 48/90, 50/91, 89/93; Malawi
African Association v Mauritania, Communications 54/91, 61/91, 98/93, 164/93, 196/97,210/98; and Free
Legal Assistance Group v Zaire, Communications 25/89,47/90,56/91 and 100/93.
15
be able to exhaust local remedies, such remedies must meet three basic
criteria - they must be available, effective and sufficient. 20
71. It is instructive to note that the Commission also w ent on to state in the Jawara
case that, if the availability of a remedy is not evident it 'cannot be invoked by
the state to the detriment of the Complainant.,21 In the instant matter, the
burden of proof, therefore, falls on the Respondent State to prove that
effective local remedies exist and that they are reasonably accessible,
available, effective and sufficient. The Commission not~s that while there are
72. Unfortunately, fue letter states '.our 'e,tf rts and other efforts to get the police
to investigate the killings we' e not ' fruitful. We could not escape the
imRl;~ssion that
ere was
: , sufficient disposition to our quest, or a
deli . el',~~ sGheme t . ither for.es 11 proper investigation into the killings, or
wear 0ut, oy delay anti'C's' e victims' families resolve to pursue their quest
for justice ,,22 C~msectuent1y, the Complainants initiated coronial processes
before
gistrate sitting at Yaba. It informs the Commission that
throughou ' 'the inquest sittings, the police authorities made only one
appearance, i)ut only to inform the Coroner that a report of the killings which
had been subw.ltted to the Commissioner of Police, Lagos State would be
19 Sir Dawda Jawara v The Gambia, Communication 147/95 and 149/96. A remedy is considered
available if the petitioner can pursue it without impediment, it is deemed effective if it offers a
prospect of success, and it is found sufficient if it is capable of redressing the complaint."19
20 Ibid. Para 31.
21 Ibid, Paras 32-34.
22 See Exhibit G2.
16
- - - - - - - - -- -- , - --
-
--
made available to her during the inquest. It says no official report was
subsequently submitted to the Coroner.
73. In the view of the Commission the Respondent State has the responsibility to
prove accessibility, availability and sufficiency and in its opinion has not
done so. The Commission agrees with the Complainant that the Respondent
State had enough notice and time to adequately address the violations which
it stands accused of and it chose not to address the alleged violations
adequately.23
75. Impol'tlm y, m the p es ' .t G '!ID.munication, the Respondent State does not
entirel
eny :' e alie:gations made by the Complainant as it also claims that
measures a.r..e being taWe ' to address the situation. In effect, the Respondent
State is not Unaware of the serious and massive human rights violations in
the country. has also not denied that the Complainant has taken numerous
steps to brin such violations to its notice, including litigating (without any
concrete resul s) on behalf of some of the alleged victims. The African
Commission cannot but agree with the Complainant, (in accordance with its
earlier decisions on cases of serious and massive violations of human rights
that and in view of the vast and varied scope of the violations alleged and the
large number of individuals involved) that the present Complaint need not
23 See Amnesty International and Others v Sudan, where the Commission also stated that the exhaustion of
local remedy is to make governments against which allegations of human rights violations are made the
opportunity to remedy such violation(s).
17
exhaust domestic remedies.2~ To require a literal exhaustion of local remedies
would in effect result into maintaining a technicality for the sake of it, with
the result of allowing the Respondent State to benefit from its own wrongs.
With all the publicity around the case, the Respondent State is well informed
of the matter and that has had every opportunity to initiate an investigation,
bring the perpetrators to justice and clear its name. The Respondent State
chose not to do that.
76. For these reasons, the African Commission des:lares the Communication
Admissible.
THE MERITS
24 See Communications in 27189, 46191, 49191, 99193 Organisation Mondiale Contre La Torture and
Association Internationale des JuristesDemocrates, Commission Internationale des Juristes (C.I.J), Union
Interafricaine des Droits de I 'Homme/Rwanda, where the Commission read Article 56 (5) in the light of its
duty to protect human and peoples' rights as provided for by the African Charter, and did not hold the
requirement of exhaustion of local remedies to apply literally. See 10th Annual Activity Report.
18
Right to Life Violations Have Continued Since Filing of Communication
Against Nigeria
79. The Complainant alleges violations of Articles 4, 6, and 7 of the African
Charter by the Government of Nigeria. 25 It states that since the
Communication was filed, grave human rights violations have persisted, and
several more Nigerians have lost their lives to extra-judicial, arbitrary and
summary executions by law enforcement and state security agents while the
Government remain aloof and indifferent to the abuses.
SELECTED INCIDENTS OF EXTRA-JUDICJ.AL .KIL, ~If\.rGS SUBSEQUENT
TO THE COMMUNICATION
80. It states that on the 8 June 2005, in tq~ cApo distti€t of Abuja five young male
traders and a female student (Ja'amely:' 1£eanJi zor, Chinedu Meniru, Isaac
Ekene, Palinus Ogbonna, Antho~ N'wokme and Augustina Arebun) had an
encOlmter with some police officers m. Ab ja" ~hi1e the policemen were on
patrol duty. All six persQDS, popular!re£~rreCl:t0 as "Apo six" were brutally
and gruesomely mmdere . v " clillliI\g, €Old-blooded circumstances, after
which they wer,e;l,r,anaed as." i
ed robbers."
81. It states that l idespread public
the visit of the United
Nations SpedaJ: Rapporteur en h ' i1trary, Summary and Extrajudicial,
~gs, Mr. ~'~ Alston,. p e s:ure ~e Gover.runent into setting u~ a
Judi- . CommISsIon: of Inqm ta mvestigate the CIrcumstances surroundmg
the e"
the A p , . ' : ~ . e ommission of Inquiry found that the victims
t ar '~ r.obbers s the police had earlier claimed, but innocent
civilians
e,CQmp amant alleges that of the six persons killed, one had tried
to escape an ~ another ene had managed to survive after the first volley of
bullets fire'l. e n them. The escapee was caught, and murdered immediately,
while the otlie person who had survived was killed (allegedly strangled) on
arrival at the , olice station. The Complainant alleges that no post-mortem
was conducted neither was a death certificate completed by a medical doctor
before the bodies of the deceased were hastily buried. 26
25 In its original submission, the Complainant alleges violation of articles 1, 2, 4, 6, 7, 9, 13, and 16 of the
African Charter.
26 The full report of the Justice Goodluck Judicial Commission of Enquiry can be obtained from the
website of The CLEEN Foundation, under the title Opportunity for Justice.
(www.c\een.org/apo%20killing.pdf).
19
82. It states that after the ,-omrrusslOn or tmquiry 's Recommendations, the
OIusegun Obasanjo Government in a rare and unprecedented act, paid
monetary compensation to the relatives of the victims of the killings, and
began prosecution of the perpetrators of the killings. The Complainant states
that this display of action towards reinforcing values of accountability turned
out to be mostly fortuitous, and the Government was never to repeat similar
action to other cases of extra-legal killings by law enforcement agencies
afterwards.
83. The Complainant informs the Commission that Mr~Phillip Alston, the United
Nations Special Rapporteur on Extra-judicial/ Summa,py and Arbitrary
Executions, in his Report of an official Fact-finq.iI1g visit to NHgeria between 27
June and 8 July 2005, noted that
.
The Nigerian Police Force put forth various prete; t t01lJ.Slliy exn-a-Judicial execunoFtS. When
a victim is killed in custody, an attempt~d escape may 'i?e cited. ~en the victim is killed
before being taken into custody, his status as.: armed robjJcl may be·<;ifed.
ew days late , after more than one month in police custody,
a1i e six suspects, alleging attempts by the victims to escape
from cust'o ~. It states at the claims of escape were spurious, unfounded
and entire y': 'ontrived. It avers that nothing showed, from the manner of the
shootings,
shots fired were meant to restrain attempts at escape. It also
alleges that aPt~r the victims were killed, no autopsies were carried out, the
families never saw the bodies of the victims, and it is unknown where they
were buried. It state that no credible inquiry was conducted into the killing,
and no charges have been brought against the police officers who carried out
the killings, nor have relatives of the victims been offered any compensation.
- - - -- - - - - _ .. _- .
Umuahia, Abia State. The suspects, some of whom displayed gunshot
wounds were alleged to have been arrested after an exchange of gunfire with
the police during which four others were killed at Olokobe Ndume
community in Umuahia , North Local Government Area of the State.
87. It states that following the parade during which double barrel guns, pistols
and other weapons, as well as an international passport purportedly
recovered from the suspects were displayed, the police killed all the suspects
and dumped their bodies at the premises of the Federal Medical Centre,
Umuahia after obtaining confessional statements . from them. The
Complainant alleges that the police admitted sponsibility for the killing
during a press briefing afterwards. The bodi~ of the suspects were later
buried in a mass grave by authorities of the Fe . ·r al MedicahCentre on the 17
August 2006, about a week after they were dump d'there, "and w ere already
decomposing. It states that the Government aile ' to -arty out any autopsy or
investiga tion.
88. The Complainant also informs tfie Comritissi011 that as it was preparing to
write a report on the alleged 12 ro'b bery sus, e c;ts, news media carried another
police killing - that of Ml,1 Olusegun OP.e ·yi. 27 The Complainant says that Mr
Olusegun Openiyi waS' staff of: Cel~e Nige ia, one of the leading
telecommunications-servic .roviders in Nig~ia, and was driving his car at
about 8.00 p.m. ?li:e ~ ·
was t~. ,red by poltliemen from Saba Police Station
close to gate lea:ding to the Univer.silY. of Lagos.
ne
ca~se
90. The Complainant argues that these mentioned cases have been mostly
selected, as representative samples, from a much larger portfolio of abusive
deaths brought about by law enforcement officers acting under the cover of
their state authority. It says that some reports say that deaths resulting from
police abuses, and in extra-judicial circumstances, run up to over a thousand
27 As reported in the Guardian Newspaper of 19 August 2007.
21
each year. It states that many ot these cases are however not reported
principally because they are perpetrated under cover and records of such
killings are not kept.
91. To substantiate its claims of extra-legal killings, it quotes again the UN
Special Rapporteur: "that while armed robbery does plague much of Nigeria,
the label of 'armed robber' is often used to justify the jailing and/ or extra
judicial execution of irmocent individuals who have come to the attention of
the police for reasons ranging from refusal to pay a bribe to insulting or
inconveniencing the police."
DEATHS RESULTING FROM TORTURE
93. The Compl¥lmant alleges that whilst lfezina was suffering this pain, the
interrogating Qrcficer then began to insert and withdraw an unsterilized needle
into and ·out
his penis through the urinary tract while asking him
questions. It states that blood coursed out of Ifezina's genitals in the
meanwhile and spattered the floor while he helplessly screamed from pain.
The penis which became swollen subsequently oozed and emitted rancid pus.
The police, the Complainant alleges, neither treated him nor allowed him to
treat himself which led to his eventual death.
of
94. The Complainant alleges that this case and
investigative torture are reported in
Justice Website, www.accesstojustice-ng.org. Some other accounts of
custodial deaths in Nigeria were reported in Human Rights Watch report
titled Rest in Pieces - Police Torture and Deaths in Custody in Nigeria"
published in July 2005 (www.hrw.org/reports/2005/nigeria0705).
1/
95. It maintains that as a signatory to the African Charter, Nigeria is bound to
uphold the principles of human rights enshrined in the African Charter by
safeguarding the lives of its citizens. This Charter obligation, it avers, has
been repeatedly emphasized by international courts as in the case of the
Mapiripan Massacre (Columbia).28 It argues that whije still stressing the same
treaty obligation, the British House of Lords in me ease of Middleton, R v. HM
Coroner for West Somersetshire (2002),29 stated that the dty to protect life
imposes two complementary obligations on tlie state. IiirstlY7 a substantive
duty not to take life and to take reaso:r;Ui:bIfr preve:ri:tativermeas 'res to )I'otect
an individual whose life is at risk. Secon(U.y, an au,jectival procedural
obligation to investigate deaths wHere arguably ~ere has :~een a breach of the
substantive obligation. This s~c0nd as, ect, the €omplainant~gues, requires
reasonable, effective and prorriJ~' . vestiga'tion as stated in the European
Court of Human Right case of Men ese and otliers v Turkey.3o
INEFFECTIVE INVESTIG~T"'VE '
AND OVERSIGHT
INCOMPETEI':lCE
96. The Complainant alleges that d espite the recurrence of gross human rights
abuses in Nig?ria, both intern , an '0 ersight mechanisms for investigating
police miscontl ct (includin e~tra-juaiciaI killings), and holding police
offieel' accoun hIe for thes "abuses are too weak, slack and grossly
inadeq'ttate to curb ' e , Iture ot impunity in Nigeria. It states that, according
to th ' Fhilli ,~lton's Rs ' r . " On paper, the system for investigating police
miscon u ct is . . p-Fess·ve. In practice, it is too often a charade. The outcome
of the . , e.sti'gatio
:usually seems to justify inaction or to ensure that
complaints e dealt with internally through orderly room hearings" or the
like. While ' a lice officers are certainly disciplined and some dismissed, the
system has r ely worked in cases in which police are accused of extra
judicial execu ·ons .... The result gives the appearance of a functiOning
investigative system, while in fact promoting the goal of defacto police
.
'ty .,,31
lllipuru
/I
th
28 Inter-American Court of Human Rights, Judgment of 15 September, 2005, the court stated inter alia
that States are required to take all necessary measures to guarantee the effective protection of human rights.
29
30
See EWCA CIV 390 (27'h March, 2002).
(Application No 36217/97), Judgment of 18/04/2005.
23
97, The Complainant alleges that the internal disciplinary system of the police
force is largely undependable and indicts the police force for its systematic
failure to bring policemen to justice for abuses they commit. Quoting the
Philip Alston Report, it notes: "Indeed the single greatest impediment to
bringing police officers to justice for crimes is the Nigeria Police itself.
Evidence indicates that it systematically blocks or hampers investigations and
allows suspects to flee. In order to break this cycle of impunity, a new
investigation and prosecution mechanism is required.,,32
31 See the Phillip Alston Report.
32 Ibid.
33 Ibid.
24
diverse ways towards making the law enforcement agents a let-loose, trigger
excited cops of licensed killers.
RESPONDENT STATES' SUBMISSIONS ON THE MERITS
100.
The Respondent State affirms its written response of 2004 and its oral
response of April 2005. It also states that the present submission is a further
response to the supplementary address by AJ.
d the zal l;>iam: inGident, where nineteen soldiers of the Nigeria
. de ed By-m ill. ants of Tiv tribal origin, the Respondent State
lcl:iers ere sent on a peace-keeping mission to prevent the
escalatio of
inter-c'emmunal crisis between neighbouring tribes in Benue
and Taraba States in Nigeria's Middle Belt axis. It states that the soldiers were
abducted an - brutally murdered by the Tiv militants following an ambush
and all entrea :'e that both the corpses of the slain soldiers and their arms and
ammunition be produced were rebuffed. It informs the Commission, that a
security operation was, therefore, mounted to recover the bodies of the slain
soldiers and to prevent the further deterioration of the situation in the area
which was fast approaching the level of anarchy. It avers that it was this
operation, which was in pursuance of the duty of the State, to maintain law
and order in all parts of the country that AJ erroneously refers to as a 'reprisal
. . ,
mISSIon.
25
103.
Ine Respondent ~tate further informs the Commission that a highpowered 10 - man Judicial Commission of Enquiry headed by the Hon.
Justice Okwuchukwu Opene of the Court of Appeal was set up by the Federal
Government chaired by a Justice of the Court of Appeal to investigate the
incident and any excesses that may have been committed by the militants and
the Nigeria military, respectively.34 It states further that the Commission of
Enquiry Report which has been submitted is still passing through the various
stages of Government for consideration. Furthermore, it says, some aggrieved
citizens from the area have sued the Federal Government of Nigeria at the
Federal High Court in Enugu, claiming compensati0n for loss of lives and
properties. It states that in the final jud ment, the Court granted
compensation in the sum of N 41.8 billion to ' e"'victims as gompensation. It
says that the Federal Government dissatisfied ' )th this judgment appealed
against it on the ground that the awar was excessive. 1lie matter,.-it stiltes, is
still pending in Court, confirming its, earlier positipn that local reme ies were
not exhausted by AJ. FlUthermore, 't states, that tlie Government commenced
negotiations with the victims to eac an amicab settlement. It says that an
arbitral panel would soon star sitting on th£:.m tter. It says that the victims
affected by the incident have not milliqateCl '. or any other body or person to
take action on their behcflf
104.
It informs tho Gommis,.Sl@1ii .that at the .Chi f of Army Staff Annual
Conference, in :'Ma'K de Benu€
tate, the Chi€!f of Army Staff, Lt. General
Luka Yusuf apo ogized to the peopl of Benue for the incident.
105.
this Issue, the Respondent State lUges the
in extreme cases,
of Reference, was attached to its Response.
26
Allegations of Frequent Killings by The Nigeria Police Force
106.
The Respondent State says it notes with a serious sense of responsibility
and concern, the allegations of frequent reckless killings by the Nigeria Police
Force (~rpF) . It says that the Government's concern derives primarily from
the fact that the NPF was established with the statutory mandate to protect
the lives and property of all persons and institutions within the geographical
territory of the Federal Republic of Nigeria. It cites Section 4 of the Police Act
(Chapter 359, Laws of the Federation of Nigeria 1990) which expressly sets
out the primary duty of the Nigeria Police Force as follows:
107.
The police shall be employed for the prevention and detection of crime, the
apprehension of offenders, the preservation of law and order, the pr .tection of life and
property and the due enforcement of all laws and regulations wit which they are
directly charged, and shall perform such mihtaryduties within or with(iut Ni.geria as
may be required by them by, or under theauthority_pf, this:,iYr any other Act.
108.
It says that in view of thes~ clear and exp ess provisions of the law, the
Government will view with serious r eseryati0ils any allegation that any
member of the police force is ac~g . ontr~:::to his mandate and rather than
protect lives, has become an instrument for Ute d.e privation of the right to life
of any citizen or resident ot;,.Niger· ;
109.
It informs th C -nunissio)) that folloWing detailed investigations, the
Government does not deny tha uch unfortunate hlcidents have occlined in
parts of the c -untry at different time in the last few years. However, it says,
it is the official.J?olicy and praGtiG~ tha such policemen are usually dismissed
from -S,ervice an<1 prosecuted in e law courts for such_crimes. It states that
the $ta-e d oes not ·ondone ex -'udicial killings by policemen. It argues that
seve or s ~ cases
ebee· rosecuted in court while other policemen are
in custo y awaitin . _triaL It refers the Commission to the recent high-profile
Apo Si%' . € i den t Wi e policemen accused of killing six Nigerians in cold
blood were ;Rromptly arrested and were put on trial for culpable homicide in
Abuja. It als0 $ays that the Government has moved further to offer financial
compensatioI\ of not less than N3.5 million each to the families of the
unfortunate victims, following a Judicial Commission of enquiry headed by a
Judge of the High Court, Justice Goodluck. 35 It further states that a high
powered Federal Government delegation accompanied the corpses of the
deceased and handed them over to their relations at a solemn ceremony held
in Enugu International Airport.
I
35 Paragraphs 11 and 12 at Page 5 of Respondent State Response.
27
110.
In the case of the Ajah Four killings, the Respondent State informs the
Commission that Shuaibu Bala, Mustapha Mohamed, Sulaiman loris and
Olagunju LawaI had confessed to the crime of armed robbery.36 It states that
the arrested persons were being taken to the scene of the crime by the
investigating team when it was ambushed by other members of the gang. It
claims that in the ensuing gunfight the Ajah Four were killed. The
Respondent State says that in the cases of Messrs Shuaibu Bala, Mustapha
Mohammed, Suleiman ldris, OlagW1ju LawaI and Messrs Celestine Chuke
Okoro and Richard Okoroafor allegedly killed by the police between 12 and
13 June 2001 and 29 January 2002, respectively, tlte ~m~)Urable Attorney
General of the Federation requested a briefing ftomJ>f:he NPF and the response
is being awaited.
111.
112.
Alleged Existence Of Vigilante Groups
36 Page 8 AI original submission and AIs Oral Submission at the 37
37 Ibid.
28
th
Ordinary Session.
113.
The Respondent State says that contrary to the statement made at Page 2
of AI's Supplementary Address in respect of vigilante groups, the
Government has reiterated the fact that all such vigil~f1te groups that bear
arms, remain proscribed under the extant laws. Indeed, it avers, that the
Government has commenced the prosecution of some leaders of such groups
for various crimes against the State, including Mujaheddin Dokubo Asari of
the Niger Delta Volunteer Force (Treason, before the Federal High Court,
Abuja), Ralph Uwazurike of the Movement for the Actualization of the
Sovereign State of Biafra (Treason, before the Federal High Court, Abuja) and
Dr Frederick Fashehun / Chief Gani Adams of the Qdtia Peoples' Congress
(Murder/ Unlawful Possession of Firearms, befof'e the til-gos State High
Court), respectively. It concludes that it is, theFefore, incorrect to say that the
vigilante groups are operating with State indulgen6e.
114.
The Respondent State argues that .A:.J"aepel'l{;led lar:gely on media reports
to gather the evidence adduced, as admitte,d by it ;at Page 10 of its
Supplementary Address. It argues ,' at Nigepia is not aw~e that AJ was
called upon to intervene by an~ @£ theJ.i1jured parties, nor ' d'id it go to the
alleged scenes of the incidents eutioriea, i JUt depended largely on the
aforesaid media reports a)1.d speculatiens to make its submissions contrary to
the provisions of Article €)~4) of the @na'Il't .
115.
the fore-going submission, it says, the application for waiver
116.
under Article 8(1) should not have been entertained on the ground that it is
not a waiver · ~rticle 56(5). It argues that the waiver to Article 56(5) can only
be entertained if it is shown that recourse to local remedy was unduly
prolonged. It also argues that there is no evidence that the Complainant took
recourse to any local remedy let alone such remedy being unduly prolonged.
Article 56, it avers, is mandatory, succinct and clear. Furthermore, it claims,
Article 58 does not dispense with the requirements of Article 56 and
therefore, Nigeria reaffirms her submission to the effect that Access to Justice
has not exhausted local remedies.
29
117.
Reacting to the submission by AJ at Page 11 of its submission, the
Respondent State says it is a flagrant exaggeration of the situation in Nigeria.
It states that allusion by AJ to massive human rights violations in Nigeria as
occasioned by the Odi, Zaki-Biam and Choba incidents contained in its
submission is an exaggeration. It says that it can only be construed as an
attempt to embarrass the Government of Nigeria, underscored not only by
the reluctance and impatience of AJ to exploit and exhaust local remedies to
issues raised, as well as genuinely intervening on behalf of the injured parties,
but also by the fact that AJ intends to exploit Article 58(1) of the African
Charter to take the case to the Assembly of Heads-Gf State and Government
without thorough and in-depth investigation.
119.
It implores the Commission to efrain from assisting AJ achieve its aim
which is not itt. onsonance with the<o· jectives for which the Commission was
setup.
120.
,e case f hS.}'lecor Abah Olobi allegedly killed by Police Constable
Yohanna ARaji and Sergeant Yakubu Biri on 12 October 1997, in Bassa Local
Governme It!
ea of Plateau State, the Respondent State informs the
Commission tljat the accused persons were arrested and arraigned before the
High Court of Plateau State on a charge of Murder. It says that the accused
persons pleaded not guilty to the five charges against them. After the plea of
the accused was taken on 23 July 1996, the Commission was informed, a
lengthy strike action embarked upon by Civil Servants in Plateau State
contributed to the delay in the commencement of hearing in the case, coupled
with the fact that the prosecution encountered difficulties in serving
summonses on the witnesses for the prosecution. It further states that
regrettably, the Counsel (Prosecutor) handling the case died and the Plateau
~
State Ministry of Justice was unable, unfortunately to re-assign the c rj.
4iq,
30
{~:~
'I
' -\
AU·UA
.~~~~
~'I£ ET ot'l ~
another Counsel (due to a paucity of Counsel) between the period of 21 June
and 29 November 2001 when the case was struck out for want of diligent
prosecution.
The Respondent State argues that, whatever the case, its municipal
system was not exhausted by the Complainant. It states that the Plateau State
Ministry of Justice made a request to the State Judiciary for the re-assignment
of the case as the Judge handling the case is no longer in service, while the
police have been directed to re-arrest the accused persons. It also says that
detectives are on their trail and they should soon be ta!Ketl into custody. These
steps, it says are pre-conditions for either revisiting the-.s truck-out case or
filing fresh charges against the accused persons..
121.
The Case of Ms Olajumoke
The Respondent State admits thatthe case .df. Miss Olajum oke is a rather
pathetic and unfortunate inci · ent( wfHch the bJ3Vernment itself has viewed
with sympathy and deep concern; It ~elates the facts as follows as ascertained
by Nigeria Police Force onducting Hj e· vestigations:
122.
123 .
. Additional Submission by the Complainant in
Respondent State Submission on the Merits
Response to the
124.
The Complainant states that this Communication is based primarily on
incidences of rampant extra-judicial killings prevalent in Nigeria and
enumerated in its earlier submission. It says that the practice of extra-judicial
killing in Nigeria is systematic, entrenched and routine. In other words, it
avers, grave human rights violations have persisted relentlessly and several
Nigerians lose their lives to extra-legal, arbitrary and summary executions by
31
law enforcement agents while the Nigerian Government remains aloof and
indifferent to these abuses. It states that despite being a signatory to many
international treaties, including the African Charter, the Goverrunent has
contrary to its provisions failed to respect, protect and safeguard the right to
life.
125.
It states that between 1999 and 2004, state agents who acting on
Presidential orders perpetrated serious violations of the right to life. 38 It states
that overwhelming pogroms in Odi, Choba, Zaki Biam and in the Niger Delta
region in South-South Nigeria depict with shockfr)
etails state authorship
of the largest incidents of extra-judicial killirigs in ' igeria, which by
reputable local and international accounts run into"severq.h housands. 39
126.
38
See pages 5 - 10 0riginal Communication and the supplementary address on the Merit for case
samples of violation to lIfe perpetuated by law enforcement officers in Nigeria.
39 See the following reports earlier submitted to the Commission: Licenced killers: A Blowing Tide of
Extra-Judicial and other Killings under Obasanjo 's Administration, 1999-2001, published by Access to
Justice. See photocopies of relevant pages from Blood Trail: Repression and Resistance in the Niger Delta
published by Civil Liberties Organization, and Hope Betrayed, A Report on Impunity and State Sponsored
Violence in Nigeria published by the World Organization Against Torture and the Center for Law
Enforcement Education in Nigeria. More recently is the report embodying the outcome of an official fact
finding visit to Nigeria by the United Nations Special Rapporteur on extra-judicial summary and arbitrary
executions, Mr. Philips Alston, which was also contained in Opportunity for Justice published by Center
for Law Enforcement Education in Nigeria.
32
"We must however observe that the police did not conduct a proper investigation
into this case before sending the case file as they are duty bound to obtain
statements of other eye-witnesses in order to give a clearer picture of the event ... "
127. The Complainant claims that cases like the above are abound, but the
police have not only demonstrated unwillingness to investigate and
prosecute erring officers, they have shown disregard for civilian
mechanisms of oversights, and for judicial processes and inquiries. It
accuses the police of habitually shunning judici . processes and making
independent attempts at engaging these processes:ftustra ting. 40
128. It says that generally, the exercise of the unfettered co~trol that the police
enjoy over investigative processes does. nd ,eoorm to . inte national
standards such as those set by tHe Bniteu Nations Principles on the
Effective Prevention Investigatio ofExtra-tegal, ~rliitrary and Summary
Execution. It claims that police investigative Rrocedutesnot only detract
from these standards, they ake ~0r.eteIlCe at sustainiil-g the detraction.
It alleges that most cases of killings ;b~ . ,e police escape investigations,
and outcomes of th~ few investiga : ons c®nducted are hardly ever made
public in line with the above stan4aras, or (djsclosed to the families of the
..victims.
"
40 It refers the Commission to Richard Okoroafor and Celestine Okoro killings and also the killing of Miss
Olajumoke Akinseye (described in its Original Communication).
33
130. The Complainant affirms that the Government, by its systematic failure
to carry out thorough, impartial investigation into cases of killings by law
enforcement officers, has violated the provisions of the African Charter.
Citing Communication 74/92 Commission Nationale des Droits de l'Homme et
des Libertes/Chad, it argues that the Commission stated that when a
government fails to investigate assassinations or prosecute those
concerned it violates of Article 7 of the Charter.
131. It states that the Government alleged in paragraphs 4 and 5 of its written
response on the Merit that a panel of inquiry was set.1W to look into the
Odi killing and that the Government is looking'into the report, while an
arbitration panel for the consideration of cpmpensation to be paid to
victims of Zaki-Biam killing will soon be set up , urthe"tmQ);-e, it states, the
Government alleged that Odi and Z~i-:Biam indigenes hav:e instituted
lawsuits for damages. It argues t at it.lis dep..ressin-g and anti-human rights
for a Government to say that it ~ still considering the anel's report or still
planning on setting up a paRel for ·the consi , ed ltion of compensation after
seven to ten years of the maSSive kil1iri.gs jn G)di and Zaki-Biam. It submits
that seven years to ten years IS tQO 101lg"'£or the report to still be under
consideration or th Ranel for (0.1npensa ·,On . to be still in- formation. It
insists that the dela -~ not only, 'mexc : sabli3, i smacks of a culture that
places little regard on h uman life. t avers that responses to events
xtra~j!l1dicia1
,illings, pa~cularly with respect to
, and punishmen '€I£ Herpetrators must be prompt. 41
ond to this additional response from
The Afliioan Cam 'i ssion's Analysis on the Merits
133. The ' oIDRla'inant l1a ased its claims against the Respondent State on the
violations ' Articles 1, 2, 4, 6 7, 9 13 and 16 of the African Charter. The
Complainan' :has not canvassed its cause under the articles which it says have
been violated E the Respondent State. The Respondent State has similarly
not addressed or articulated its responses under the relevant articles for
which it is being accused of violating. That will, however, not prevent the
Commission from analyzing the matter and (not) finding a violation of the
African Charter if there was (not) one. The narrative from both parties is clear
enough to allow the African Commission to proceed with a determination on
the Merits.
134. The African Commission also notes that in its submission on the Merits
(see for example paras: 103, 105, 114, 116, 118, 119, 120), the Respondent State
still refers to provisions in Article 56 and the fact that AJ has taken an actio
popuiaris position in this Communication. Those arguments are not addressed
as it pertains to arguments which have been addressed and settled at the
Admissibility stage.
Alleged Violation of Article 4
135. Article 4 of the African Charter guarantee~ that every human being is
entitled to respect for his life and the integvi' of his person and that any
harm inflicted against any person constitutes a violation ..o f the physical
integrity of that person.
136.
levied
State says tHat the case is being investigated
culprits will be brought to justice at the end.
137.
In the case of Inspector Abah Olobi allegedly killed on 12 October 1997,
the Respondent State says that a lengthy strike action embarked upon by
Civil Servants in Plateau State contributed to the delay in the commencement
42 Italics (ours) for emphasis.
35
of hearing in the case. 43 It has not informed the Commission of the eventual
outcome.
138. However, before determining whether there has been a violation of Article
4, it is important to understand what mischief the article intends to cure. In
Communication 25/89-47/90-56/91-100/93 : Free Legal Assistance Group, Lawyers'
Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les
Temoins de Jehovah/ DRe, the Commission stated that the article is intended to
protect the right to life. 44 This prompts the question: what then is a violation
of the right to life? In Communication 54/91-61/91-~6J9.2~98!93-164/97_196/97
210/98 : Malawi African Association, Amnesty Interna1iionaI, Ms Sarr Diop, Union
interafricaine des droits de I' Homme and RADD '.0; Collectif desJveuves et ayants
Droit, Association mauritanienne des droits de 1Homme '/ Ma ritania, the
Commission stated that arbitrary executions and su15Je ting peopl e to torture
to the point of death point to a sh ocking ack of respect for life, and
constitutes a violation of Article 4.4 5'- .
139.
45 13th Activity R(ep.ort: 1999 - 2000. Similarly in Communication : 27/89-46/91-49/91-99/93 :
Organisation mondial ' ntre la torture, Association Internationale des juristes democrates, Commission
internationaJe des juristes, Union interafricaine des droits de I'HommelRwanda, the Commission said that
extra-judicial exeutions amount to a violation ofthe right to life. See 10th Activity Report, 1996-1997.
46 See also Communication 223/ 98 - Forum ofConscience v Sierra Leone .
47. See for example, the consolidated Communications 54/91-61/91-96/93-98/93-164/97_196/97-210/98 .
Malawi African Association, Amnesty International, Ms Sarr Diop. Union interafricaine des droits de
I'Homme and RADDHO. Collectif des veuves et ayants-Droil. Association mauritanienne des droits de
I'Homme v Mauritania; Communications 27/89-46/91-49/91-99/93 : Organisation mondiale contre la
torture, Association Internationale des juristes demo crates, Commission internationale des juristes
.
4>\lC~HUij.~A"O.
interafricaine des droits de I'HommelRwanda.
~'i
36
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requirements that the right shall be protected by law and that no one shall be
arbitrarily deprived of his life mean that the law must strictly control and
limit the circumstances in which a person may be deprived of his life
arbitrarily.
The Commission notes that while the Complainant alleges various and
serious incidences of extra-judicial killings, it has also been able to provide
evidences of Government and or police inaction to support many of its
allegations. It has for example, filed civil action damages after efforts to
prompt police investigations in the Olajumoke· .0as.e, provided witness
testimonies, written letters to the (police) authpritles in Ajah Four killings,
instituted inquests into the Richard Okoro an~ Celestine. Dkoroafor case,
though the police refused to participate. In tfie- ease of Richard Okoro and
Celestine Okoroafor according to the pa,E'ers . submitte~#by the E;omp ainant to
the Commission, the Coroner fo~d that the " oficemen perpetrated the
killings. The police refused to participate in that'inquest. ·
140.
141.
. J'
142.
The
m mission is of the view that much of the defence of the
Responden s:tate lacks any commitment to the inviolability of human lives
and the protection of human rights. Article 4 is clear. It is intended not only to
prohibit absol tely the arbitrary taking of life by the State, but by implication,
any life which allegedly has been taken arbitrarily, should be investigated
and the violator(s) brought to justice. It notes that the Respondent State did
not provide evidence of what it has done to redress the various police killings
as alleged by the Complainant. It also notes that the Respondent State has
failed to provide evidence of the prosecutions they allege or adduce evidence
of law enforcement officers who were successfully prosecuted. The
Commission is of the view that prosecutions for extra-judicial killings by
policemen are isolated and far from what it ought to be, given the numerous
37
records of abusive killings, which has been enumerated by the Complainant.
The Commission is of the view that the claims by the Government are not
clear and are unsubstantiated with the intention to create the impression that
it is redressing the right to life violations as it should. The Commission is left
with alternative but to agree with the Complainant that there seems to be a
deeply entrenched culture of brutality and impunity within the police force
coupled with a culture of silence and cover-ups which is in total breach of
their duty as a police force.
143. The Commission agrees with the Complainant that the Respondent State
has a duty to investigate violations of human rights anti punish those
responsible for the violations where those respQ.us'ble a .e itS..agents or third
parties. The Commission finds it disturbing that the n~~-erous' eg'ltions of
violations of Article 4 (which it has not ~enied) that is levied against 'ttannot
be accidental, but stem from a dee.R· ~nd worrying cul~e of police violence
and a cavalier attitude for .thelives of olh.,er citizeQ,S. It notes that
investigations on extra-judicial ~gs ~T~ e1<!@: usively inve tigable by the
police under existing laws in Nigeri~and the f€ w investigations conducted by
the police were done after protracte"d p blic H:tsistence and the findings were
either not publicized, or ere ofteQjp IlQusive: .~ . e Commission also notes
the various obse)yations . the Special Ra2p,ortetir on Summary or Extra
Judicial Execu ,'01,1S qUlQJed by :tbe Complainanpand has to agree that there is
a pervading ~.' lure of impuni
. ithin the police force. It also notes that
effective remedies do not xist ,to. review police decisions, or where
a e been carri d out, there are no effective ways to bring out
144.
ssion OJ: ~a:rri e notes that the Ajah Four killings, the Ayuba
Parako ' " cases . u;slirates how the police deploys its institutional strength to
suppress (t;1.Uo · gh ~ats of assassinations) demands for investigations by
families on:victims and how the police can manipulate investigations to help
police officer. escape with lesser indicbnents for serious crimes.48 The
Commission agrees with the Complainant that cases like the above abound,
where the police have not only demonstrated unwillingness to investigate
and prosecute erring officers, but have also shown disregard for civilian
mechanisms of oversights, and for judicial processes and inquiries. The
Commission, for example notes the cases of Wale Agagu (not addressed by
the Respondent State) and Mr. Ifezina who was tortured to death (not
addressed by the Respondent State) and has to reach only one conclusion
that the incidences are a total violation of Article 4 of the African Charter. In
48
See paragraphs 125 of present Communication,
38
this regard, it is instructive to note that in Communication 205/97: Kazeem
Aminu v Nigeria, the Commission laid down a general principle that it is the
duty of the State Party to apprehend persons whom it reasonably believes
have committed or are in the process of committing offences recognized by its
laws. However, such arrests and/ or detentions must be in accordance with
known laws, which in turn must be in accordance with the provisions of the
Charter. The State is not given a license to unlawfully kill its citizens and then
use threats and sham investigations to cover its crimes.
145. The Commission also agrees that the Respondent .State has failed to
provide effective remedies for the relatives pf families ' (9f the victim. It
emphasizes that the duty to make reparation 0 Yictims or fa,milies of victims
of human rights violations exists under international 'law and has been
recognized by the African Com.nUssioR nt
Qc)mpla~ant . cites
Communication 59/91, Louis Emgba MekOn,go/ Ct1..111eroon wnere the
Commission held that the complaina11tt is entitleilio reparations for the prejudice
he has suffered".49 The Commisfoion a-gte·es with tlte Complainant that despite
being aware of the unlawful RilliNgs 6£ u n(b;eds of people (possibly even
thousands) mentioned by the Cornpiainan ~tlle Respondent State has failed to
make reparation to the lamilies of vic;~s 0 !these violations even where it
has expressly accepted th(lt the kiliifigs were
.w~l, or has impliedly done
so by- commencing prosecutiOl\.Against thos implicated in the killing. The
Commission f10tes with regr ts that eve ~, the one case where the
Respondent 9tafe conceded that i V{as vicariously responsible for the action
of its officers in the Zaki-B ·m~ . caSe ·and where the Federal High Court in
Enugu ordered a N41.8 billion ($) compensation, it has decided to appeal the
am0unt given to ' e elatives 0 Ute deceased. ·
II
146. Oli: e · !l~il1ings, tlie @ommission further notes the response from the
Respo dent Stat~ paragraphs 4 and 5 of its written response on the Merits
that a panel ali mquiry: was set up to look into the Odi killing and that the
Governmeru is looking into the report, while an arbitral panel for the
consideration of compensation to be paid to victims of Zaki-Biam killing will
soon be set }i? urthermore, it notes the reply of the Respondent State that
Odi and Zaki-Biam indigenes have instituted lawsuits for damages. The
Commission agrees with the Complainant that it is anti-human rights for a
In SERAC & Anor v. Federal Republic of Nigeria, the African Commission required the Nigerian
Government to ensure"adequate Compensation to victims of human rights violations ... ". Furthermore, the
Inter-American Court has said , "When a wrongful act that is imputable to a State, the State incurs
international responsibility for the violation of international law, and thus incurs a duty to make
reparation".
49
39
Government to say that it is still considering the panel's report or still
planning on setting up a panel for the consideration of compensation after
seven to ten years of the killings in Odi and Zaki-Biam. It further agrees that
seven years to ten years is far too long for the report to still be under
consideration or the panel for compensation to still be established, The
Commission wishes to state that such the delays are inexcusable, bordering
on a culture that places little regard for human life, for which Article 4 was
put in place. It agrees with the Complainant that responses to events
concerning extra-judicial killings, particularly with respect to investigation
and punishment of perpetrators must be prompt. 50
147.
50 See the
the
UN Prind jes on the Effective Prevention and Investigation of Extralegal Execution cited
above).
51 See Communications 25/89, 47/90, 56/93 and 100/93 para. 40.
52 See also Conununication 74/92 para. 25. In SERAC the Commission held that states have the "duty
to respect, protect, promote and fulfill these rights" and that these duties to various extents require states to
take action. In the SERAC the Complainants argued successfully that the state had actively participated in
violations of the rights of members of the Ogoni people and that the state had failed to protect the
population from harm. The Commission cited its own case law as well as the Inter-American and European
a
case law in Vel
squez Rodriguez v. Honduras and X and Y v. the Netherlands to demonstrate that
governments have a duty to protect their citizens from "damaging acts" perpetrated by priv~=amED!lrer
.
prut",
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Alleged Violation of Article 5
148. The Complainant did not specifically canvass a violation of Article 5 of the
African Charter, though it gave detailed and graphic accounts of instances of
torture. Upon reading the submission which was not contested by the
Respondent State, the Commission is of the view that itchas to address itself
to this article. But is the Commission able to add ress it v.iolation under a
specific article that has not been specifically canvassed by the Complainant?
The Commission answers that question in the affi! lllative ..iFhe <;> bjective of the
African Charter and indeed the Commission is to promote -an - ipro eGt human
rights in the continent. Would it not d.e tea ill- p 'urp 6 . e CWd entire spirit of the
Charter, if a glaring and gross huma·i;1 rights viplation is n ot addressed just
because a Complaint, for whate er re son, fails to canvass the violation under
a specific article? In the inst t case, th~ @:omplainant has informed the
Commission of instances of tot·tUlle whiGh it wants the Commission to
address. Yes, it did not cite such cases under ' Article 5 of the Charter, but it
wants the Commission to address th~ The ComI;Uission does so under the
relevant Article 5.
149.
150. The Commission will, thus examine the alleged violations under Article 5.
Article 5 guarantees respect for the dignity inherent in the human person and
the recognition of his legal status. This Article further prohibits all forms of
exploitation and degradation of man, particularly slavery, slave trade, torture
cruel, inhuman or degrading punishment and treatment. The guarantee of the
41
physical integrity and security of the person is also enshrined in Article 6 of
the African Charter.53
151. Before examining Article 5 in relation to the instant matter, it must be
stated that the Commission takes an uncompromising stand against torture,
inhuman and degrading treatment. In this regard, it has developed
Guidelines (Robben Island Guidelines for the Prohibition and Prevention of
torture in Africa) to assist states to address cases of torture including its
criminalization. The Guide is a set of norms that regulate the way states can
exercise powers of detention, setting out the miruI1llJm standards for
conditions of detention, and provide guidelines-"as~to how .those deprived of
their liberty should be treated. The Guidelines aJso require states to bring to
justice those responsible for acts of torture or ill~ - e'\,tme~t. ..
152. In Gabriel Shu mba v Zimbabwe th~ e oIllnllssion' oted
if is not a
mistake that along with genocide, tOl'fure is th only crime that every state
must punish, no matter whQ comIDils it op Where. It
ther stated in
Communication 279/03-296/05: Su an Hum an rRi hts Organiza ion & Centre on
Housing Rights and Evictions (COHI{F:) v Sudftr(, that while the African Charter
does not define the ~eaning of ~e worus, or the phrase torture or
degrading treatment or .- ' . . hment ·~~tiGle 5 is" :med at the protection of
both the dignity of. - .e hum@ pe son, analith~ phy sical and mental integrity
. e A'f.ri n Commi sJon further went to state in
of the individull1... '
Communication 79/03-296/05 tfiaf torture constitutes the intentional and
systematic infliction of physical or .sychological pain and suffering in order
to punish, intirni ate or gather: , ormation.
II
153.
of
53 See also the Inter-American Case in Border Action Network v US (REPORT No 78/08, PETITION 478
05) wherein a petition was presented on behalf of the presumed victims of twenty-four identified incidents
and the class of undocumented migrants, legal residents, and U.S. citizens who have been victims of
alleged acts of violence and intimidation at the hands of anti-immigrant vigilante groups and like-minded
individuals operating primarily along the U.S. - Mexico border in southern Arizona. The Respondent State
claim sed that the petition does not present a colorable claim of violation of any of the articles of the
American Declaration, or other applicable instruments and should be deemed inadmissible under Article 34
of the IACHR Rules of Procedure. The Inter-American Commission disagreed.
at the ends to d rope hanging from ceiling fan hook in the ceiling, was passed
between both legs and both arms, He was then raised towards the ceiling by
pulling at the loose ends of the rope, until he was suspended in the air in the
form of a human bow - a position that caused excruciating pain all over the
body but particularly in the shoulders, the spine and the waist. Whilst Mr
Ifezina was suffering this pain, the interrogating officer then began to insert
and withdraw an unsterilized needle into and out of his penis through the
urinary tract, while asking him questions. Blood coursed out of Hezina' 5
genitals in the meanwhile and spattered the floor while he helplessly
screamed from pain. The penis which became swolJen subsequently oozed
and emitted rancid pus. The police neither treated him nor allowed him
treatment. He eventually died.
154, Article 5 of the African Charter is clear. It pronibits absolutely any form of
the ill-treatment or infliction of physiea1 or psXcltolomcal pain and suffering.
The torture of Mr Hezina and ancl ill- eatment of wale Agagu is clearly a
violation of Article 5. The Cornmissicm h as in '€ past indic~ted that in terms
of Article 5 of the African Cha ter" every; p er oThdeprived ofItis or her liberty
has the right to be detained in con itions ~o~atible with his or her personal
dignity, and the state must guaran ee that '·erson the right to life and to
humane treatment. Cons ij'uently" s1n.e
sta· · is the institution responsible
for detention eSJablli?hments, it .is the . arantm of these rights of the
prisoners.55 In ' : e tnsJant case~, the two ~ tims died in police custody
through gross )pistreatment and intentional infliction of pain and suffering,
which has not been denied by the Respondent State. It agrees with the
Complainant tha the Respondent Stat e has failed in its duty to protect its
citiz~ns in the aforem entioned c · ses.
e
fri@aIT ommlSsl@riagrees that the Complainant has submitted more
155,
than a(}eguate . Yldences to support the allegations of torture and ill
treatme t''b:y: . e Nlg-erian police, which at least should have prompted an
official in . esjigation. In the instant case the Respondent State did not even
address the :very serious allegations of the torture of Mr !fezina and the ill
treatment of ale Agagu. The African Commission also agrees with the
Complainant at in seeking to refute the allegations, it is not sufficient for the
Respondent State to simply argue that they are unsubstantiated when they
are supported by range of documentation. Rather, the Respondent State must
provide evidence to the contrary.
SS Ibid.
43
156. As has been stated supra the burden of proof rests on the Government
arld 56 where the Government provides no evidence to contradict an
allegation of human rights violation made against it, the African Commission
will take it as proven, or at the least probable or plausible.
The African Commission,
157. Declares that the Respondent State has violated the right not to be
subjected to torture as recognized in Article 5 of the African Charter.
159.
160. Accor '
to the Afiican Commission's settled case-law, the presumption
under Artic ~ 6 is in favour of release. 57 As established in the Jawara case the
second limb 0 ~ Article 6 does not give judicial authorities a choice between
either bringing an accused to trial within a reasonable time or granting him
provisional release pending trial. Until conviction, s/he must be presumed
innocent, and the purpose of the provision under consideration is essentially
56 (See, ACHPRlS9/91, ACHPRl60/91, ACHPRl64/92, 68/92, 78/92, ACHPRl87/93, ACHPRIIOI/93).
to require his provisional release once his continuing detention ceases to be
reasonable,
In the instant Communication, the Commission notes that all of the
arrestees eventually died in prison. 58 They were never given the opportunity
to defend themselves before a competent court and the Respondent State did
not respond to the allegations of torture and false imprisonment. The
Commission has, however, laid down a general principle in Communication
101/93 with respect to freedom of association that competent authorities
should not enact provisions or take any actions whiCh limit the exercise of
this freedom. This principle applies not only to ,freedom of association but
also to all other rights and freedoms, including the right not-to be arbitrarily
arrested and detained. The Commission finds That the ~l'>rests <;md detention
161.
The African Commission,
162. Declares that the R<espondent
tat~
has viQlated the victims' right to
personal liberty and pr 'te.etion fr~m arbitrary arrest as provided in Article 6
of the African Charter.
"
.
Alleged Violation of Article 7
163.
It is not clear from the submissions of the Complainant whether it is
alleging that all ilie .limbs of Ailli€ le 7 have been violated by the Respondent
Sta'te, ' s none 6£ ~m weFe 'specifically canvassed. Nevertheless, the
Commissi'O 18;.able to a~fdre~ss-itSelf to this article from the submissions of tile
Comp1~ant. Argyably
e presumption of innocence is universally
reCOgniied,59 apd pf0~laimed by all major legal systems of the world. 6o The
police, in th . performance of their duties, are expected to be impartial and to
protect the i{l!lblic interest with objectivity, take proper account of the position
of the suspect a1;ld the victim, and pay attention to all relevant circumstances,
irrespective of whether they are to the advantage or disadvantage of the
suspect. 61 Adjunct to Article 7 is the right to an impartial hearing within a
58 See for example paragraph 159.
59 Communication No. 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and
Assistance Project! Nigeria, as in n 26 above, paragraphs 40 -41 .
60 See Antonio Cassese, page 390. See also UDHR, ACHR, ECHR and the Statutes of the ICTY (Article
21 (3), the ICTR (Article 20 (3), and the ICC (Article 66).
45
reasonable time when one is arrested and detained. The Commission wishes
to state that this article is specifically designed to ensure that the charges which
the penal procedure places on the individual are not unremittingly protracted
and do not produce permanent harm. An individual who is accused and held in
custody is entitled to have his or her case resolved on a priority basis and
conducted with diligence.
164. In its Resolution on the Right to Recourse Procedure and Fair Trial, the African
Commission had, in expounding on the guarantees of the right to fair trial
under the African Charter observed thus: " .. . the ,right~to fair trial includes,
among other t...hings, the following: (b) Perso
Who are arrested shall be
informed at the time of arrest, in a language wJiich they understand of the
reason for their arrest and shall be informed pro~,in~ tly 0 any- <;barges against
them.
'
165. In the instant Communication, v ictims such as Wale ~ Ifezina, the Apo
Six, Prince Vincent Omo-Oribbabor, Samuel aedonald Ep~Ue and his son
Stanley Epelle where never given the oppo,g 'ry- to prove their case in court.
They were not charged and not afforded " e opportunity of a trial and
counsel. 62 In its Princir!.les and GuideLines on the Right to a Fair Trial and Legal
Assistance in Africa, the Gommission reiterated that everyone charged with a
criminal offence hall...have' th:e rigfi t to be' p!~sumed innocent until proved
guilty accordtng 0 iaw. The pr~sumption of innocence, the Commission
further state ' 1a~es the burden of roof during trial in any criminal case on
the prosecuti0n In its Resolution 0 ' he Right to Recourse and Fair Trial, the
Commission Rtf lerrecognisea the e""s sential elements of a fair hearing to
inclUde, among' 0~ r things, ill t persons charged with a criminal offence
shail 1Je' presumed IDnQ(Eent untiLp roven guilty by a competent court. 63
2) of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance
62 in Communication 64192-68192-781923AR: Krishna Achuthan (on behalf of Aleke Banda), Amnesty
International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera
Chirwa) v Malmvi the African Commission siated that the fact that Vera and Orton Chirwa were tried
before the Southern Region Traditional Court without being defended by a counsel constitutes a violation
of Article 7( I) (1). See also Communication: 54/91-61/91-96/93-98/93-164/97_196/97-210/98 : Malawi
African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de I'Homme and
RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de I'Homme /
Mauritania where the Commission stated : 'In most of the cases brought up in these communications (para.
3, 4, 5, 9, 10, 11), the accused either had no access or had restricted access to lawyers, .... This constitutes
a violation of Article 7( 1)( c) on the right to defence.
63 ACHPR lRes.4(Xl)92.
46
As guaranteed in the African Charter, the principle constructs a
presumption in favor of an individual accused of a crime according to which he
or she is considered innocent until criminal responsibility is established in the
case before the courts. In Communication 301/05 - Haregewoin Gabre-Selassie and
IHRDA (on behalf of former Dergue Officials/Ethiopia, the Commission further
stated that the presumption of innocence is available not only to the
defendant in the strictest sense of the word but also to an accused person
prior to the filing of a criminal charge. It stated that the presumption applies
during the pre-trial investigations and should be considered even stronger
with regard to a person against whom 'not even a prima facie case has been
confirmed'. In the instant Communication, the RespondentState did not give
any convincing reason why many of the victims ere not·aEforded the right
to be tried before a properly constituted court or why ma~ of the trials
which they say have commenced did l}ot 'pr@Geed 0 their 10'gical~cpn.clusion.
Since the State is vicariously responsible fOr the action of its police, the
African Commission is of the vie fua't the polk e ,have ailed in one of their
key duties of ensuring that suspects ate broughtto trial as quickly as possible.
In some of the cases, the victims died in'poliee Clfstody and in very disturbing
circumstances and were never give~ the Opp'0~hmity to defend themselves.
166.
167. The Commission agrees :with the M'gu~ents ofComplainant made during
the oral hearing that the prmd pie efthe pt~tlmption of innocence constitutes
a fundamental pdrrcipl~ whic ,lfotects everybody against being treated by
public officials as if they were guiltY. of an offence even before such guilt is
established by,: a competent court. It'aJees with the Complainant that many
of the victims ho were arres eo an 'detained were treated as if they were
guilty~of the offenci~s even befo e they were charged or even before their guilt
waS estaBlished by Cbmpeten 'e(!mrt. As in the case of Communication 224/98: '
Mediamignts ' _genda v Nife'ria~ '" the instant matter the Respondent State has
not reaRx coutes en ~e veracity of the Complainant's allegation. In this
circumstarm.ce, the Arl'i@a:il: Commission is obliged to accept this as the facts of
the case and therefore finds the Respondent State in violation of Article 7 of
the African <;:h arter.
The African Commission,
168. Declares that the Respondent State has violated the victims' rights to have
their cause heard as provided in Article 7 of the African Charter.
169. Alleged Violations of Articles 2, 9, 13 and 16: The Complainant did not
address these rights and how they have been violated. In its subsequent
correspondences to the Commission, these articles were also omitted. Even if
47
they were not omitted in subsequent correspondences, the Commission could
not find sufficient submissions to address itself to them. Subsequently they
are not addressed.
170. Alleged Violation of Article 1: Article 1 of the African Charter requires
all the States Parties to the African Charter to recognize the rights guaranteed
therein and to adopt legislative and other measures to give effect to these
rights, duties and freedoms.
171. The Complainant argues that the Respondept State's -failure to recognize
the rights of the various victims enshrined ill the African Charter violates
African Charter. The Commission in Purohit ana Moore v c!;ro;nbia held that
Article 1 of the African Charter proclai..m.s: a:: und'amental prmc 'p ~ that not
only do the States Parties recognize the Figl1~, 9,uties and freedoms e . hrined
in the Charter, they also commi fl\emselves to- resped them and to take
measures to give effect to them. n o tQeFwords if .a State Party fails to ensure
respect of the rights contained in th' dVd an Charter, this constitutes a
violation of t.~e AfricaI'. Charter e:v.-~n if the $" ate or its agents were not the
perpetrators of the via if : on. 64 By failiiIg to respect the various victim' s right
to life (Article 4), right n t to be torblled 0I subjected to cruel and inhuman
and degrading tre~l:ment (Ar 'ele 5 , right · o liberty (Article 6) and a fair and
speedy trial gpaanteed 'in Article 7 of the A&ican Charter, the Respondent
State is in violation of Article l ol the African Charter. A violation of any
provision of
African Charter al:t,to:qlatically means a violation of Article
1. 65
the
.
.
Decision of the Commission
64 Communication 211198 Legal Resources Foundation vs. Zimbabwe. See also communications: No.
74/92 ; No. 137/94 ; No. 48/90 ; No. 50/91; No . 52/91; No. 89/93; [No . 137/941, No. 139/94; No. 154/96;
No. 161/97: No . 147/95; No. 149/96; No. 155/96; No. 211198; No.[b]223 /98. in which the African
Commission has had to clarify the scope of Article 1 of the Africa Charter. See further communications
74/92, National Human Rights and Liberties Commission vs. Chad; Communication 155/96, Social and
Economic Rights Action Centre and the Centre for Economic and Social Rights vs. Nigeria;
Communication 24512002, Zimbabwe Human Rights NGO Forum vs. Zimbabwe, parag. 143 .
65 Communications 147/95 and 149/96, Sir Dawda JawaraiThe Gambia, as in n 14 above.
48
173. In the light of the above analysis, the African Commission finds that the
Federal Republic of Nigeria has violated Articles 1, 4,5,6 and 7 of the African
Charter and requests the Respondent State should
a. Establish an Independent Committee to
investigate extra-judicial
killings with powers to recommend the prosecution or otherwise of
culprits of unlawful killings and make recommendations of adequate
compensation to be paid to families of victims of unlawful killings,
among other things;
b. Pay adequate compensation to all victims or tHeir families in conformity with
national law;
(,Report on the implementation of these 'recomm end tions within three months
from the date of notification.
Done in Banjul, The Gambi~; ~ uring theiJ'tti E.x traOr dinary Session held from 19
to 25 February 2013
.
49