Rapporteur:
25th Ordinary Session: Commissioner
Ben-Salem
26th
Ordinary Session: Commissioner Ben-Salem
28th
Ordinary Session: Commissioner Ben-Salem
Summary of Facts:
1.
The communication,
which was sent through e-mail is dated 25th May 1998, and was received
at the Secretariat on 26th May 1998
2.
The Complaint is
filed by Media Rights Agenda, a Nigerian Human Rights NGO based in Lagos on
behalf of Niran Malaolu, Editor of an independent Nigerian daily Newspaper,
The Diet.
3.
The author complains
that Mr. Niran Malaolu was arrested together with three other staff of the
Newspaper by armed soldiers at the editorial offices of the Diet Newspaper
in Lagos on December 28th, 1997.
4.
Neither Niran Malaolu
nor his three colleagues were informed of the reasons for their arrest or
shown a warrant of arrest.
5.
The three other
colleagues who were arrested along with Malaolu were later released.
6.
Niran Malaolu continued
to be held without charges until 14th February 1998 when he was
arraigned before a Special Military Tribunal for his alleged involvement in
a coup.
7.
Throughout the
period of his incarceration, Niran Malaolu was not allowed access to his lawyer,
doctor or family members.
8.
On 28th
April 1998, after a secret trial, Niran Malaolu was found guilty by the tribunal
of the charge of concealment of treason and sentenced to life imprisonment.
9.
The Complainant
further alleges that Niran Malaolu’s alleged involvement in the coup is connected
with the news stories published by his Newspaper on the coup plot involving
the then Chief of General Staff, Lt. General Oladipo Diya, as well as other
military officers and civilians who have also been convicted by the tribunal
and given sentences ranging from prison terms to death by firing squad.
10.
One of such stories
was an article entitled "The Military Rumbles Again", which was
published in the Sunday Diet of 28th December 1997 based upon the
announcement by the Military Government of the alleged coup plot it claims
to have uncovered.
11.
Further, the Complainant
alleges that Niran Malaolu was denied the right to be defended by lawyers
of his choice, and instead, assigned a military lawyer by the tribunal in
contravention of the right to fair hearing.
12.
The Special Military
Tribunal which tried Niran Malaolu was neither competent, independent nor
impartial in that members of the tribunal were hand-picked by the Head of
State, General Sani Abacha, and the Provisional Ruling Council (PRC) against
whom the alleged offence was committed. Besides, the President of the tribunal,
Major-General Victor Malu is also a member of the PRC, which is empowered
by the Treason and Other Offences (Special Military Tribunal) Decree No. 1
of 1986, to confirm the death sentences passed by the tribunal. These are
alleged to be in violation of the rules of natural justice and, in particular,
article 7 (b) of the Charter.
13.
The arraignment
and trial of Niran Malaolu, a civilian before the Special Military Tribunal
using special procedures is a breach of Principle 5 of the United Nations
Principles on the Independence of the Judiciary and article 7 of the Charter.
14.
The Complainant
alleges further that under the provisions of the Treason and Other Offences
(Special Military Tribunal) Decree No. 1 of 1986, which established the tribunal
that tried and convicted the accused, the right of appeal to a higher judicial
authority is completely extinguished and those convicted may only appeal to
the PRC, which composition and interests are as indicated in paragraph 12
above.
15.
The Author also
contends that the trial of Niran Malaolu in camera was a violation of recognised
international human rights standards, to wit: the right to a fair and public
hearing.
16.
Finally, that the
arrest, detention, arraignment, trial, conviction and sentence of Malaolu
were in grave breaches of the norms of fair trial as guaranteed in the Charter.
Complaint
17.
The Author alleges
that the following articles of the African Charter on Human and Peoples’ Rights
have been violated:
Articles
6, 7, 9 and 26.
Procedure:
18.
At its 25th
ordinary session held in Bujumbura, Burundi, the Commission decided to be
seized of the communication, and requested the Secretariat to notify the Nigerian
Government. It also requested the Secretariat to submit an opinion on the
admissibility of the communication, particularly in accordance with Article
56(7) of the Charter, vis-à-vis Nigeria's current political situation.
19.
On 19th
August 1999, the Secretariat of the Commission notified the parties of this
decision.
20.
At its 26th
ordinary session held in Kigali, Rwanda, the Commission declared the communication
admissible and requested parties to submit written arguments on the merit
of the case.
21.
On 17th
January 2000, the Secretariat notified parties of the above decision.
22.
On 17th
February 2000, the Secretariat received a Note Verbale from the High Commission
of the Federal Republic of Nigeria in Banjul, referring to the above Note
Verbale and requesting the Commission to forward the following documents to
the country's competent authorities to enable them prepare for appropriate
responses to the alleged violations:
a)
The Draft Agenda
for the 27th ordinary session and the letter of invitation to the
session from the Secretariat;
b)
A copy of the complaint
that was attached to the Secretariat’s Note;
c)
A copy of the Report
of the 26th ordinary session
23.
Further to the
above request, the Secretariat of the Commission on 8th March 2000,
forwarded all the documents as requested, except the Report of the 26th
ordinary session, together with a copy of the summary and status of all pending
communications against Nigeria, a copy each of the three communications (Nos.
218/98, 224/98 and 225/98) as submitted by their authors, and a copy
of the written response of the Complainant on the merits of this communication.
24.
At its 27th
ordinary session held in Algeria, the Commission reviewed the case and postponed
its further consideration to the next session to enable the government of
Nigeria respond to its request for arguments on the merits of the case.
25.
On 31st
May 2000, the Secretariat received a letter from the Complainant inquiring
about the decision of the Commission at the 27th ordinary session.
26.
The above decision
was communicated to parties on 6th July 2000. The Secretariat also
acknowledged receipt of the Complainant's letter of 31st May 2000.
27.
On 27th
September 2000, the Secretariat received a response from the High Commission
of the Respondent State in the Gambia intended to be arguments on the merits
of communications 224/98 and 225/98. The facts therein however focused on
the former communication.
28.
On 3rd
October 2000, the Secretariat of the Commission acknowledged receipt of Note
Verbale and indicated the discrepancy. Also, a copy of the submission was
forwarded to the Complainant for its observations.
29.
During the session
of the Commission in Benin, the Respondent State submitted additional arguments
on the matter.
State Party's Response
30.
The Government
of Nigeria contends that the trial was conducted under a law which was validly
enacted by the competent authority at that time. The Treason and Other Offences
(Special Military Tribunal) Act, Cap 444 of the Laws of the Federation of
Nigeria, 1990 under which Malaolu was tried arose from the ashes of the Treason
and Other Offences (Special Military Tribunal) Decree No.1 of 1986 enacted
by the Military government headed by General Ibrahim Babangida (Rtd.). Malaolu
was, therefore charged, tried, convicted and sentenced to life imprisonment
in accordance with the provisions of a known law.
31.
The Government
argues that Malaolu was tried along with a number of people accused of involvement
in alleged plot to overthrow the late Gen. Sani Abacha. It asserts that without
going into the merits or demerits of the trial, it was not an ostensible case
of victimisation against Malaolu or his profession. Indeed, one or two other
journalists were also sentenced to imprisonment at the same trial.
32.
It claims that
the whole episode took place during a prolonged military regime. It is well
known all over the world that military regimes are abnormal regimes and a
painful aberration. There was no way of controlling any wanton acts of abuse
of fundamental rights by a military junta determined to stay in power at all
costs, no matter whose ox was gored.
33.
In respect of the
allegation that the trial was not fair, it argued that the right to fair hearing
in public was subject to the proviso that the court or tribunal might exclude
from the proceedings persons other than the parties thereto in the interest
of defence, public safety, public order, etc.
34.
The government
of Nigeria affirms and reiterates its capacity and determination to defend
and promote the rights of its citizens and intends to provide effective and
adequate representation at the hearing of the case.
35.
Mr. Malaolu was
arrested, detained, tried and convicted under an existing legislation made
by a “legitimate” military administration, which was imposed on the people
of Nigeria. Be that as it may, the military regime of General Abdulsalami
Abubakar, caused Mr. Malaolu to be granted pardon and he can institute an
action in the ordinary courts on violation of his rights and also petition
the Judicial Commission of Inquiry of Human Rights violations. Meanwhile,
the obnoxious enactment has been repealed.
LAW
Admissibility
36.
At its 25th
ordinary session held in Bujumbura, Burundi, the Commission requested the
Secretariat to give its opinion on the effect of article 56(7) of the Charter
in view of the prevailing political situation in Nigeria. Relying on the case
law of the Commission, the Secretariat submitted that based on the well established
principle of international law, a new government inherits the previous government’s
international obligations, including responsibility for the previous government’s
misdeeds (see Krishna Achutan and Amnesty International /
Malawi, communications 62/92, 68/92 and 78/92).
37.
The commission
has always dealt with communications by deciding upon the facts alleged at
the time of submission of the communication (see communications 27/89, 46/91 and
99/93). Therefore, even if the situation has improved, such as leading
to the release of the detainees, repealing of the offensive laws and tackling
of impunity, the position still remains that the responsibility of the present
government of Nigeria would still be engaged for acts of human rights violations
which were perpetrated by its predecessors.
38.
Furthermore, the
Commission noted that although Nigeria is under a democratically elected government,
the new constitution provides in its section 6(6)(d) that no legal action
can be brought to challenge ‘any existing law made on or after 15 January,
1966 for determining any issue or question as to the competence of any authority
or person to make any such law’.
39.
For the above reasons,
and also for the fact that, as alleged, there were no avenues for exhausting
local remedies, the Commission declared the communication admissible.
Merits
40.
The Complainant
alleges that the arrest and subsequent detention of Malaolu was arbitrary
as he was neither shown any warrant of arrest nor informed of the offences
for which he was arrested. Further, that Malaolu was arrested by armed soldiers
from the Directorate of Military Intelligence at his office on 28 December
1997 and detained incommunicado at a military facility in Lagos until he was
moved to Jos, where his trial took place.
41. This, it is contended, is in contravention of Article
6 of the African Charter on Human and Peoples’ Rights. The said article provides
inter alia:
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 the reasons and conditions previously laid down by law. In particular,
no one may be arbitrarily arrested and detained.
42.
Further to this,
the Complainant alleges that until 14 February 1998 (that is, about two months
after his arrest) when he was arraigned before a Special Military Tribunal
for his alleged involvement in a coup, Mr. Malaolu was neither informed of
the reasons for his arrest nor of any charges against him.
43. In its Resolution
on the Right to Recourse Procedure and Fair Trial, the Commission had, in
expounding on the guarantees of the right to fair trial under the Charter observed thus:
… the
right to fair trial includes, among other things, the following:
(b) Persons who are arrested shall be informed at
the time of arrest, in a language which they understand of the reason for
their arrest and shall be informed promptly of
any charges against them;
44. The failure and/or
negligence of the security agents who arrested the convicted person to comply
with these requirements is therefore a violation of the right to fair trial
as guaranteed under Article 7 of the Charter.
45.
Complainant alleges
a violation of article 7 (1) (a) of the African Charter on Human and Peoples’
Rights which states:
Every individual shall have the right to have his
cause heard. This comprises:
(a)
The right
to an appeal to competent national organs against acts violating his fundamental
rights as recognised and guaranteed by conventions, laws, regulations and
customs in force;
46.
Complainant
contends that the decision of the Tribunal which tried and convicted Malaolu
is not subject to appeal, but confirmation by the Provisional Ruling Council,
the composition of which is clearly partisan. Non-compliance of the competent
authorities of Nigeria to this requirement is in breach of the provision of
Article 7(1)(a) of the Charter.
47.
Complainant
alleges a violation of article 7(1) (b) of the Charter which provides that:
Every individual shall have …the right to be presumed
innocent until proven guilty by a competent court or tribunal
The Complainant alleges in this respect that prior
to the setting up of the tribunal, the Military Government of Nigeria organised
intense pre-trial publicity to persuade members of the public that a coup
plot had occurred and that those arrested in connection with it were guilty
of treason. In this regard, it alleges further, any possible claim to national
security in excluding members of the public and the press from the actual
trial by the tribunal cannot be justified, and therefore in breach of the
right to fair trial, particularly, the right to presumption of innocence.
48.
The Government
has not contested the veracity of the Complainant's submissions. In this circumstance,
the Commission is obliged to accept this as the facts of the case and therefore
finds the Government of Nigeria in violation of Article 7(1)(b) of the Charter.
49.
The Complainant
alleges that the exclusion of the members of the public and the press from
the actual trial by the tribunal was not justified, and therefore in breach
of the right to fair trial.
50.
The Government
argues that the right to fair hearing in public was subject to the proviso
that the court or tribunal might exclude from the proceedings persons other
than the parties thereto in the interest of defence, public safety, public
order, etc.
51.
Neither the African
Charter nor the Commission's Resolution on the Right to Recourse Procedure
and Fair Trial contain any express provision for the right to public trial.
That notwithstanding, the Commission is empowered by Articles 60 and 61 of
the Charter to draw inspiration from international law on human and peoples'
rights and to take into consideration as subsidiary measures other general
or special international conventions, customs generally accepted as law, general
principles of law recognised by African States as well as legal precedents
and doctrine. Invoking these provisions, the Commission calls in aide General
Comment 13 of the UN Human Rights Committee on the right to fair trial. Paragraph 6 of the said Comment states:
The publicity of hearings is an important safeguard
in the interest of the individual and of society at large. At the same time
Article 14, paragraph 1, acknowledges that courts have the power to exclude
all or part of the public for reasons spelt out in that paragraph. It should
be noted that, apart from such exceptional circumstances, the Committee considers
that a hearing must be open to the public in general, including members of
the press, and must not, for instance, be limited only to a particular category
of persons...
52.
The exceptional
circumstances under the International Covenant on Civil and Political Rights,
which the above Committee monitors are for reasons of morals, public order
or national security in a democratic society, or when the interest of the
private lives of the parties so requires, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice. The Commission notes that these circumstances
are exhaustive, as indicated by the use of the phrase "apart from such
exceptional circumstances"
53.
The Government
has only presented an omnibus statement in its defence to the effect that
the right to fair hearing in public was subject to the proviso that the court
or tribunal might exclude from the proceedings persons other than the parties
thereto in the interest of defence, public safety, public order, etc. It has
not specifically indicated which of these circumstances prompted it to exclude
the public from such trial. The Commission therefore considers the argument
not sufficient enough to avail the Government of Nigeria such defence.
54.
Considering the
fact that as alleged by the Complainant, prior to the setting up of the tribunal,
the Government had organised intense pre-trial publicity to persuade members
of the public of the occurrence of a coup and the involvement of those arrested
in connection to it, the Commission is constrained to find the exclusion of
the same public in the actual trial unjustified and in violation of the victim's
right to fair trial guaranteed under Article 7 of the Charter.
55.
It is alleged that
prior to his arraignment, precisely, for the 49 days he was detained, Mr.
Malaolu was not allowed access to his lawyer, neither was he given the opportunity
to be represented and defended by a Lawyer of his own choice at the trial.
Rather, he was assigned a military Lawyer by the Tribunal. The Complainant
submits that by refusing Mr. Malaolu access to his lawyer, the government
of Nigerian was in contravention of Article
7(1) (c) of the Charter which provides:
Every individual shall have the right to defence,
including the right to be defended by counsel of his choice.
56.
In its Resolution
on the Right to Recourse and Fair Trial, the Commission in re-enforcing this
guarantee observed in paragraph 2 (e) (i) thus:
In the determination of charges against individuals,
the individual shall be entitled in particular to:
(i) … communicate
in confidence with counsel of their choice
The denial of this right therefore is a violation
of these basic guarantees.
57.
The Complainant
alleged that the Special Military Tribunal which tried the convicted person
was neither competent, independent nor impartial because members of the Tribunal
were selected by the Head of State, General Sani Abacha, and the Provisional
Ruling Council (PRC), against whom the alleged offence was committed. Some
members of the Tribunal are also serving army officers. For instance, the
President of the Tribunal, Major-General Victor Malu is also a member of the
Provisional Ruling Council, which is empowered by the Treason and Other Offences
(Special Military Tribunal) Decree No. 1 of 1986, to confirm the sentences
passed by the Tribunal. This is a breach of the right to a fair trial as stipulated
in article 7(1) (d) of the Charter.
Article
7 (1) (d) states:
Every individual shall have… the right to be tried…
by an impartial court or tribunal
58.
The Government
has not refuted this specific claim. It only states that the Treason and Other
Offences (Special Military Tribunal) Act, Cap 444 of the Laws of the Federation
of Nigeria, 1990 under which Malaolu was tried arose from the ashes of the
Treason and Other Offences (Special Military Tribunal) Decree No. 1 of 1986
enacted by the then Military Government headed by General Ibrahim Babangida
(Rtd.). Further, it asserts that its submission would not address the merits
or demerits of the trial.
59.
The Commission
is not taking an issue with the history and origin of the laws nor the intention
why they were promulgated. What is of concern here to the Commission is whether
the said trial conforms to the fair hearing standards under the Charter. The
Commission is of the opinion that to answer this question, it must necessarily
consider the merits or demerits of the trial, an issue the Government does
not want to be involved in.
60.
Consequently, the
Commission finds the selection of serving military officers, with little or
no knowledge of law as members of the Tribunal in contravention of Principle
10 of the Basic Principles on the Independence of Judges. The said Principle
states:
Persons selected for judicial office shall be individuals
of integrity and ability with appropriate training or qualifications in law.
61.
In the same vein,
the Commission considers the arraignment, trial and conviction of Malaolu,
a civilian by a Special Military Tribunal, presided over by serving military
officers, who are still subject to military commands, without more, prejudicial
to the basic principles of fair hearing guaranteed by Article 7 of the Charter.
62. It is fitting, in this regard, to cite the Commission's
general position on the issue of trials of civilians by Military Tribunals.
In its Resolution on the Right to Fair Trial and Legal Assistance in Africa,
the Commission had, while adopting the Dakar Declaration and Recommendations
noted thus:
"In many African countries Military Courts and
Special Tribunals exist alongside regular judicial institutions. The purpose
of Military Courts is to determine offences of a pure military nature committed
by military personnel. While exercising this function, Military Courts are
required to respect fair trial standards."
They should not, in any circumstances whatsoever,
have jurisdiction over civilians. Similarly, Special Tribunals should not
try offences that fall within the jurisdiction of regular courts.
63.
The Commission
considers the said trial, which has not been refuted by the Respondent State,
save to the extent that it was done under a law validly enacted by the competent
authority at the time, in contravention of the right to fair trial guaranteed
under Article 7 of the Charter. The Commission also finds the setting up of
the said tribunal for the trial of treason and other related offences as impinging
on the independence of the judiciary, in as much as such offences are being
recognised in Nigeria as falling within the jurisdiction of the regular courts.
64.
The Commission
also finds the trial in contravention of the basic principle of fair hearing
contained in Principle 5 of the United Nations Basic Principles on the Independence
of the Judiciary (The UN Basic Principles) and article 7 (1) (d) of the African
Charter. Principle 5 of the UN Basic Principles stipulates:
Everyone shall have the right to be tried by the
ordinary courts or tribunals using established legal procedures. Tribunals
that do not use the duly established procedures of the legal process shall
not be created to displace the jurisdiction belonging to the ordinary courts
or judicial tribunals..
65.
Furthermore, in
its General Comment on a similar provision of Article 14 of the International
Covenant on Civil and Political Rights, the Human Rights Committee observed:
The provisions of article 14 apply to all courts
and tribunals within the scope of that article whether ordinary or specialise.
The Committee notes the existence, in many countries, of military or special
courts which try civilians. This could present serious problems as far as
the equitable, impartial and independent administration of justice is concerned…While
the Covenant does not prohibit such categories of courts, nevertheless the
conditions which it lays down clearly indicate that trying of civilians by
such courts should be very exceptional and take place under conditions which
genuinely afford the full guarantees stipulated in article 14.
(See also its Comment on the Report of Egypt - UN
Doc. CCPR/79/Add. 3, paragraph a of August 1993)
66.
It could not be
said that the trial and conviction of Malaolu by a Special Military tribunal
presided over by a serving military officer, who is also a member of the PRC,
a body empowered to confirm the sentence, took place under conditions which
genuinely afforded the full guarantees of fair hearing as provided for in
Article 7 of the Charter. This is also in contravention of Article 26 of the
Charter which states:
State parties to the present Charter
shall have the duty to guarantee the independence of the courts and shall
allow the establishment and improvement of appropriate national institutions
entrusted with the promotion and protection of the rights and freedoms guaranteed
by the present Charter.
67.
It is also contended
by the Complainant that Malaolu is being punished by Nigeria’s Military Government
over news stories published by his Newspaper relating to an alleged coup plot
involving Nigeria’s’ Chief of Staff and Second -in- Command, Lt. General Oladipo
Diya and other military officers and civilians. This is alleged to be in contravention
of his right to freedom of expression enshrined in Article 9 of the Charter.
68. The Government argues that Malaolu was tried along
with a number of people accused of involvement in alleged plot to overthrow
the late Gen. Sani Abacha. It contends that the trial was not an ostensible
case of victimisation against Malaolu or his profession, but rather that one
or two other journalists were also sentenced to imprisonment at the same trial.
69. Considering the facts at the disposal of the Commission
and the response of the Government, the Commission takes the view that it
was only Mr. Malaolu’s publication which led to his arrest, trial and conviction
and therefore finds that in violation of Article 9 of the Charter as alleged.
70.
The Complainant
avers that while Mr. Malaolu was in detention, he was subjected to such cruel,
inhuman or degrading treatment, as having his legs and hands chained to the
floor day and night. From the day he was arrested and detained, until the
day he was sentenced by the tribunal, a total period of 147 days, he was not
allowed to take his bath. He was given food twice a day, and while in detention,
both in Lagos and Jos before he faced the Special Investigation Panel that
preceded the trial at the Special Military Tribunal, he was kept in solitary
confinement in a cell meant for criminals. The Complainant submits further
that the treatment meted out to Mr. Malaolu contravened Article 5 of the Charter.
Article 5 provides:
Every individual shall have the right to the respect
of the dignity inherent in a human being and to the recognition of his legal
status. All forms of exploitation and degradation of man particularly slavery,
slave trade, torture, cruel, inhuman or degrading punishment and treatment
shall be prohibited.
Principle
1 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment provides:
All persons under any form of detention or imprisonment
shall be treated in a humane manner and with respect for the inherent dignity
of the human person.
Further,
Principle 6 states:
No person under any form of detention or imprisonment
shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. No circumstance whatever may be invoked as a justification
for torture or other cruel, inhuman or degrading treatment or punishment.
71.
It is worth noting
that the term ‘cruel, inhuman or degrading treatment or punishment’ is to
be interpreted so as to extend to the widest possible protection against abuses,
whether physical or mental.
72. The Government has not denied these allegations.
Indeed, it has made it clear that it is not contesting the merits or demerits
of the case. In the absence of any information to the contrary from the Government,
the Commission finds the various forms of treatments meted to Mr. Malaolu
while in detention, in violation of the victims right to respect and dignity
and right to freedom from inhuman or degrading treatment guaranteed under
Article 5 of the Charter and reinforced by the above Basic Principles.
(See communications 64/92, 68/92 and 78/92 ( Krishna
Achuthan on behalf of Aleke Banda, Amnesty International on behalf Orton and
Vera Chirwa) / Malawi), communications 27/89, 46/91, 49/91 and 99/93 ( Organisation
Mondiale Contre La Torture and Association Internationale des Juristes Démocrates,
Commission Internationale des Juristes (C.I.J), Organisation Mondiale Contre
La Torture and Union Interafricaine des Droits de l'Homme / Rwanda), respectively.
73.
Although not an
issue, the Commission notes that the alleged violations took place during
a prolonged military rule and that such regimes, as rightly pointed out by
the Government are abnormal (see the Commission's Resolution on the Military,
adopted at the 16th ordinary session in Banjul, the Gambia).
The Commission sympathises with the Government of Nigeria over this awkward
situation but however asserts that this does not in any way diminish its obligations
under the Charter, nor the violations committed prior to its coming into office.
74.
Finally, the Commission
finds it necessary to clarify the position regarding the claim of the Government
of Nigeria to the effect that the trial was conducted under a law validly
enacted by the competent authority at the time. Also that the victim was charged,
tried, convicted and sentenced in accordance with the provisions of such a
law.
75.
In this regard,
the Commission recalls its decision in communication 147/95 and 149/96, Sir Dawda
Jawara / The Gambia, wherein it stated thus: "For a State to avail itself
of this plea, it must show that such a law is consistent with its obligations
under the Charter". It is therefore not enough for a State to
plead the existence of a law, it has to go further to show that such a law
falls within the permissible restrictions under the Charter and therefore
in conformity with its Charter obligation. No such reasons have been adduced
in the instant case. The Commission therefore rejects this argument.
For these reasons, the Commission
Finds the Republic of Nigeria in violation of Articles 3(2), 5, 6, 7 (1) (a), (b), (c), (d), 9 and
26 of the African Charter and Principle 5 of the UN Basic Principles on the
Independence of the Judiciary.
Urges the Republic of Nigeria to bring its laws in conformity
with the provisions of the Charter.
Done at the 28th session
held in Cotonou, Benin
from 23rd October to 6th
November 2000.