137/94, 139/94, 154/96 and 161/97 International Pen , Constitutional Rights Project , Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation/Nigeria
Rapporteurs:
17th Session: Commissioner Badawi
18th Session:
Commissioner Kisanga
19th Session:
Commissioner Kisanga
20th Session:
Commissioner Kisanga
21st Session:
Commissioner Dankwa
22nd session: Commissioner Dankwa
23rd Session:
Commissioner Dankwa
24th Session: Commissioner
Dankwa
The Facts as submitted by the authors
1.
These communications were submitted to the African Commission
by International Pen, the Constitutional Rights Project, Interights [and Civil
Liberties Organisation] respectively. They were joined because they all concern
the detention and trial of Kenule Beeson Saro-Wiwa, a writer and Ogoni activist,
president of the Movement for the Survival of the Ogoni People. The communications
139/94 and 154/96 also complain of similar human rights violations suffered
by Mr. Saro-Wiwa’s co-defendants, also Ogoni leaders.
2.
The communications 137/94 and 139/94 were
submitted in 1994 before any trial began. After the murder of four Ogoni leaders
on 21 May 1994, following riot during a public meeting organised by Movement
for the Survival of the Ogoni Peoples (MOSOP) representing the rights of those
who lived in oil producing areas of Ogoni land, Saro-Wiwa and many hundreds
of others were arrested, Saro-Wiwa himself on 22 May 1994 and the vice-president
of MOSOP, Ledum Mitee, shortly thereafter. Both communications allege that
Mr. Saro-Wiwa was severely beaten during the first days of his detention and
was held for several days in leg irons and handcuffs. He was also denied access to his lawyer and
the medicine he needed to control his blood pressure, at times prevented from
seeing his family, and held in very poor conditions.
3.
In its communication, submitted on 9
September 1994, the Constitutional Rights Project included a list of 16 other
Ogonis who had been held without charge or bail for what was at that time
over three months. Both communications alleged that Mr. Saro-Wiwa had been
detained because of his political work in relation to MOSOP. He had been detained
five times for brief periods since the beginning of 1993, and released each
time without charge, except on one occasion in mid-1993 where he was held
for several weeks and charged with unlawful assembly.
4.
The State Military Administrator declared
that Mr. Saro-Wiwa and his co-defendants had incited members of MOSOP to murder
four rival Ogoni leaders, but no charges were brought until 28 January 1995.
In the months between arrest and the beginning of the trial, the defendants
were not allowed to meet with their lawyers, and no information on the charges
was provided to the defence.
5.
In February 1995 the trial of the defendants
began before a tribunal established under the Civil Disturbances Act. The
three members of this tribunals were appointed directly by General Abacha
in November 1994, although counsel for the Rivers State Administrator argued
in August that the cases were within the exclusive jurisdiction of the Rivers
State High Court, since Rivers State is where the offences occurred.
6.
In June 1995 the Constitutional Rights
Project submitted a supplement to its communication, alleging irregularities
in the conduct of the trial itself: harassment of defence counsel, a military
officer’s presence at what should have been confidential meetings between
defendants and their counsel, bribery of witnesses, and evidence of bias on
the part of the tribunal members themselves. In October 1995 PEN also copied
to the Commission a letter it sent to General Abacha protesting the lack of
concrete evidence and the unfair conduct of the trial.
7.
On 30 and 31 October 1995, Ken Saro-Wiwa
and eight of the co-defendants (Saturday Dobee, Felix Nuate, Nordu Eawo, Paul
Levura, Daniel Gbokoo, Barinem Kiobel, John Kpunien and Baribor Bera) were
sentenced to death, while six others including Mr. Mitee were acquitted. The
CRP submitted an emergency supplement to its communication on 2 November 1995,
asking the Commission to adopt provisional measures to prevent the executions.
8.
The Secretariat of the Commission faxed
a note verbale invoking interim measures under revised Rule 111 of the Commission’s
Rules of Procedure to the Ministry of Foreign Affairs of Nigeria, the Secretary
General of the OAU, the Special Advisor (Legal) to the Head of State, the
Ministry of Justice of Nigeria, and the Nigerian High Commission in The Gambia.
The note verbale pointed out that as the case of Mr. Saro-Wiwa and the others
was already before the Commission, and the government of Nigeria had invited
the Commission to undertake a mission to that country, during which mission
the communications would be discussed, the executions should be delayed until
the Commission had discussed the case with the Nigerian authorities.
9.
No response to this appeal was received
before the executions were carried out.
10.
On 7 November 1995 the Provisional Ruling
Council (PRC) confirmed the sentences of death and on 10 November 1995 all
the accused persons were executed in secret at the Port Harcourt Prison. By
section 7 of the Civil Disturbances (Special Tribunals) Decree No. 2 of 1987,
under which the executed persons were tried, the PRC are required to receive
the records of the trial Tribunal before confirmation of the decision is possible.
These records were not prepared by the Tribunal and so were not available
for the PRC.
11.
In 1996 the Secretariat received a communication
from Interights representing Ken Saro-Wiwa Jr. It alleged that the condemned
persons had been detained arbitrarily prior to and during the trial and that
they had been subjected to torture in the Army camp. Furthermore it alleged
serious irregularities concerning the conduct of the trial: that the tribunals
that convicted the accused persons were not independent; that there was no
presumption of innocence; that the accused persons had not been given time
or facilities in which to prepare their defence; that they had been denied
legal representation by a counsel of their choice; that there was no right
of appeal and that following the sentencing the persons were held incommunicado.
Interights asserted that they were tried, convicted and sentenced to death
for the peaceful expression of their views and opinions on the violations
of the rights of the Ogoni people.
12.
In December 1996 the Secretariat received
a communication from the Civil Liberties Organisation, alleging that the Civil
Disturbances (Special Tribunal) Decree is invalid because it was made without
participation of the people; that its composition with military officers and
members of the Provisional Ruling Council meant that it could not be impartial;
and that the lack of judicial review of the decisions of this tribunal amount
to a violation of the right to appeal and fair trial. The communication alleges
that the trial, conviction and sentencing of Ken Saro-Wiwa and others violated
Articles 7.1(b)(c) and (d) of the African Charter, and that the execution
of these persons violates Article 4. The communication alleges that the arraignment
of 19 more alleged suspects constitutes another potential violation of the
Charter.
Complaint
13.
The Communications allege violation of Articles 1, 4, 5, 7, 9, 10,
11, 16 and 26 of the African Charter.
The State response and observations
14.
The government argues that its actions were necessary to protect the
rights of the citizens who had been murdered; that the tribunal which tried
Saro-Wiwa was competent because two of its three members were lawyers; that
the process of confirmation by a state government was an adequate appeal;
that the Civil Disturbances Decree had not been protested upon its enactment
in 1987 and that it had been set up to deal with a crisis situation.
Procedure before the Commission
15. Communication 137/94
is dated 28 September 1994 and was submitted by International Pen.
16. Communication 139/94 is submitted by Constitutional Rights Project
and dated 9 September 1994.
17. The Commission was seized of the communications at its 16th
Session in October 1994, but deferred its decision on admissibility pending
notification and receipt of additional information from the Nigerian Government.
18. At the 16th session the Commission decided to merge the communications.
19. On 9 November 1994, a notification of the two communications
was sent to the Nigerian Government and Rule 109 of the Rules of Procedure
was invoked, requesting the Nigerian Government not to cause irreparable prejudice
to Mr. Saro-Wiwa.
40.
On 6 February 1995 a letter was received
from International Pen stating that Mr. Saro-Wiwa was being ill-treated and
that he was facing the death penalty.
21. On 13 February a letter was sent to the Nigerian Government
re-emphasising the need for Rule 109
to be applied.
22. On 22 February 1995, a letter was received from complainants
stating that Ken Saro-Wiwa had been charged and was scheduled to appear before
a three person tribunal from which there was no right of appeal. The tribunal
members are chosen by General Abacha in violation of international fair trial
standards. The complainant recognised that local remedies had yet to be exhausted
and announced its intention to present an update of the case to the Commission
once the trial was completed.
23. At the 17th session the Commission declared the communications
admissible. They were to be heard on their merits at the 18th session.
24. On 20 April 1995, letters were sent to the Government of Nigeria
and the complainants informing them of this.
25. On 28 June 1995 a letter was received from the Constitutional
Rights Project describing developments
in the case.
26. On 1 September 1995, a letter was sent to the government of
Nigeria stating that the communication would be heard on the merits at the
18th session of the Commission and inviting the government to send a representative.
27. At the 18th session the Commission decided that the communications
should be taken up by the mission
planned for Nigeria.
28. On 9 October 1995 a letter was received from PEN American Centre
expressing concern for the state of health of Mr. Saro-Wiwa.
29. On 1 November 1995, upon hearing that a death sentence had been
passed on Mr. Saro-Wiwa and eight of his co-defendants, the Secretariat faxed
a note verbale to the government of Nigeria, invoking the revised Rule of
Procedure 111 (formerly 109) asking that the executions should be delayed
until the Commission had taken its mission and spoken with the competent authorities.
This note verbale was also faxed to the Secretary General of the OAU,
the Nigerian High Commission in Banjul, and the Special Adviser (Legal) to
the Head of State of Nigeria.
30. On 2 November 1995 a letter was received from the Constitutional
Rights Project notifying the Secretariat of the death sentences and requesting
that provisional measures be invoked.
31. On 9 November 1995 Commissioner Dankwa, hearing that the death
sentence had been confirmed, wrote to the Secretariat requesting such action.
He was faxed a copy of the note verbale.
32. On 20 November 1995 the Secretariat received a note verbale
from the Nigerian High
Commissioner in Banjul, attempting to justify the executions.
33. On 21 November 1995 the Secretariat wrote a note verbale to
the Nigerian High Commission in Banjul, requesting the official judgement
in the Saro-Wiwa case, which had been mentioned in the note verbale.
34. On 30 November 1995 a letter was sent to the complainants stating
that the communications would be taken up by the Commission’s mission to Nigeria.
35. On 13 December 1995, the Secretariat received a letter dated
13 November 1995 from the office of the Special Adviser to the Head of State,
attempting to justify the executions.
36.
On 18 and 19 December 1995, the Commission
held an extraordinary session on Nigeria in Kampala.
37.
On 26 January 1996 a letter was sent
to the Constitutional Rights Project informing it of the interim measures
taken with regard to Ken Saro-Wiwa.
38. At the 19th session, held in March/April 1996 in Ouagadougou,
Burkina Faso, the Commission heard statements from the government of Nigeria
and the complainants. Mr. Chidi Anselm Odinkalu was duly authorised to appear
for the complainants, and Mr. Osah and Mr. Bello appeared for the Nigerian
Government. At the end of the hearing the Commission took a general view on
the cases and deferred taking final decision in each case pending the accomplishment
of its proposed mission to Nigeria. The Commission proposed May 1996 as the dates for the visit. The
Nigerian delegation said they will communicate these dates to the Government
of Nigeria for confirmation.
39. On 8 May 1996 the Commission wrote to the Nigerian Government,
Constitutional Rights Project and International PEN informing them that a
decision had been taken at the 19th session to send a mission to the country
where the cases would be taken up.
40. At the 20th session held in Grand Bay, Mauritius, October 1996,
the Commission decided to postpone the final decision on the merits of the
communications to the next session, awaiting the result of the planned mission
to Nigeria. The Commission also decided to join communication 154/96 with
these communications.
41. On 10 December 1996 the Secretariat sent letters to the complainants
informing them of the decisions of the Commission.
42. On 10 December 1996 the Secretariat sent a note verbale to the
government informing it of the decisions of the Commission.
43. On 29 April, the Secretariat received a letter from Mr. Olisa
Agbakoba entitled ‘Preliminary objections
and observations to the Mission of the Commission which visited Nigeria from
March 7-14 1997. The document was submitted on behalf of Interights with regard
to 14 communications, including this one.
44. Among the objections raised and or observations made were: a)
the neutrality, credibility And relevance; and composition of the Mission.
45. At its 21ST session held in April 1997, the Commission
postponed taking decision on the Merits to the next session, pending the submission
of scholarly article and court decisions by the complainants to assist it
in its decision. The Commission also awaits further analysis of its report
of the mission to Nigeria. It must be stated that Mr. Chidi Odinkalu did send
the article mentioned above.
46.
On 22 May, the complainants were informed of the Commission’s decision,
while the State was informed on May 28.
47. Communication 154/96 is dated 6 November 1995 and received
at the Secretariat on 4 March 1996.
48. The communication requested the Commission to take interim measures
to prevent the executions. A supplementary submission was sent with the communication
informing the Commission that the executions had taken place on 10 November
but that the communication was reaffirmed.
49. On 13 November 1995 the Nigerian Government wrote to the Commission
informing it of the Government's view of the situation.
50.
On 20 November 1995 the High Commission of Nigeria in the Gambia giving
its opinion on the matter.
51. On 21 November 1995 the Commission wrote to the High Commission
of Nigeria in the Gambia requesting a copy of the Justice’s judgement in the
case.
52. On 12 March 1996 a confirmation was sent to this effect by the
complainant.
53.
At the 19th session in March
1996 the communication was not considered, but the Commission took a general
view of all the communications against Nigeria and deferred any decision on
cases pending the accomplishment of its proposed mission to Nigeria.
54.
On 13 August 1996 a complete copy of the communication was sent to
the government of Nigeria.
55.
On 13 August 1996 a letter was sent to the complainant informing him
of the status of the case.
56.
On 4 February 1997, the Secretariat received a letter entitled supplementary
submissions with respect to communication No. 154/96.
57. On 4th April, the Secretariat acknowledged receipt
of the letter.
58.
On 29 April, the Secretariat received a letter from Mr. Olisa Agbakoba
entitled ‘Preliminary objections and observations’ to the Mission of the Commission
which visited Nigeria from March 7-14 1997. The document was submitted on
behalf of Interights with regard to 14 communications, including this one.
59.
Among the objections raised and or observations made were: a) the neutrality,
credibility and relevance; and composition of the mission.
60.
At its 21ST session held in April 1997, the Commission postponed
taking decision on the merits to the next session, pending the submission
of scholarly articles and court case by the complainants to assist it in its
decision. The Commission also awaits further analysis of its report of the
mission to Nigeria.
61.
On 22 May, the complainants were informed of the Commission’s decision,
while the State was informed on May 28.
62.
On May 27, the Secretariat received a letter from the complainant entitled
‘Additional Information on Ouster Clauses in Nigerian Law’ in which he promised
to furnish the Secretariat with the information requested by the Commission
at its 21st session “ within the next three weeks”.
63.
From this day on the procedure is identical to communications 137/94
and 139/94.
64. Communication 161/97 was received on 10 January 1997.
65.
On 14 January 1997 a note verbale with a copy of the communication
was sent to the Ministry of External Affairs, copy to the Special Legal Adviser
to the Head of State, the Nigerian High Commission, and the Embassy of Nigeria
in Addis Ababa.
66.
On 23 January 1997 an acknowledgement of receipt was sent to the complainant.
67.
At its 21ST session held in April 1997, the Commission postponed
taking decision on the merits to the next session, pending the submission
of scholarly articles and court case by the complainants to assist it in its
decision. The Commission also awaits further analysis of its report of the
mission to Nigeria.
68.
On 22 May, the complainants were informed of the Commission’s decision,
while the State was informed on May
28.
69.
At the 22nd Ordinary session, the Commission postponed taking
a decision on the cases pending the
discussion of the Nigerian Mission report.
70.
At the 23rd Ordinary session held in Banjul The Gambia,
from 20-29 April 1998, the Commission was unable to consider the communication
due to lack of time.
71.
On 25 June 1998, letters were sent from
the Secretariat of the Commission to all parties concerned regarding the status
of the communications.
Law
Admissibility
72. Article
56 of the African Charter reads:
Communications...shall
be considered if they:
...5. Are
sent after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged,...
73. This is just
one of the 7 conditions specified by Article 56, but it is that which usually
requires the most attention. Because
Article 56 is necessarily the first considered by the Commission, before any
substantive consideration of communications, it has already been the subject
of substantial interpretation; in the jurisprudence of the African Commission,
there are several important precedents.
74. Specifically,
in the four decisions the Commission has already taken concerning Nigeria,
Article 56.5 is analysed in terms of the Nigerian context. Communication 60/91
(Decision ACHPR/60/91) concerned the Robbery and Firearms Tribunal; Communication
87/93 (Decision ACHPR/87/93) concerned the Civil Disturbances Tribunal; Communication
101/93 (Decision ACHPR/101/93) concerned the Legal Practitioners Decree; and
Communication 129/94 (ACHPR/129/94) concerned the Constitution (Modification
and Suspension) Decree and the Political Parties (Dissolution) Decree.
75. All of the
Decrees in question in the above communications contain "ouster"
clauses. In the case of the special
tribunals, these clauses prevent the ordinary courts from taking up cases
placed before the special tribunals or from entertaining any appeals from
the decisions of the special tribunals. (ACHPR/60/91:23 and ACHPR/87/93:22).
The Legal Practitioners Decree specifies that it cannot not be challenged
in the courts and that anyone attempting to do so commits a crime (ACHPR/101/93:14-15).
The Constitution Suspension and Modification legally prohibited their
challenge in the Nigerian Courts (ACHPR/129/94:14-15).
76. In all of the
cases cited above, the Commission found that the ouster clauses render local
remedies non-existent, ineffective or illusory. They create a legal situation in which the judiciary can provide
no check on the executive branch of government. A few courts in the Lagos district have occasionally found that
they have jurisdiction; in 1995 the Court of Appeal in Lagos, relying on common
law, found that courts should examine some decrees notwithstanding ouster
clauses, where the decree is "offensive and utterly hostile to rationality"
(Reprinted in the Constitutional Rights Journal). It remains to be seen whether
any Nigerian courts will be courageous enough to follow this holding, and
whether the government will abide by their rulings should they do so.
77. In the present
case, while the above reasoning was used in the initial decisions on admissibility,
it is at the present time unnecessary. In light of the fact that the subjects of the communications are
now deceased, it is evident that no domestic remedy can now give the complainants
the satisfaction they seek. The communications are thus admissible.
Merits
78. Article
of the Charter 5 reads:
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.
79. Article 5 prohibits
not only torture, but also cruel, inhuman or degrading treatment. This includes
not only actions which cause serious physical or psychological suffering,
but which humiliate the individual or force him or her to act against his
will or conscience.
80. International
PEN alleges that Ken Saro-Wiwa was kept in leg irons and handcuffs and subjected
to ill-treatment including beatings and being held in cells which were airless
and dirty, then denied medical attention, during the first days of his arrest.
There was no evidence of any violent action on his part or escape attempts
that would justify holding him in irons. Communication 154/96 alleges that all the victims were manacled
in their cells, beaten and chained to the walls in their cells.
81. The government has made no written submission in
these cases, and has not refuted these allegations in its oral presentation.
It is well-established jurisprudence of the Commission that where allegations
go entirely unchallenged, it will proceed to decide on the facts presented (See, e.g., the Commission's decisions in communications
59/91, 60/91, 64/91, 87/93 and 101/93). Thus, the Commission holds a violation
of Article 5 of the Charter.
82. Article
6 of the African Charter reads:
Every individual
shall have the right to liberty and to the security of his person. No one
may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained.
83. All the victims
were arrested and kept in detention for a lengthy period under the State Security
(Detention of Persons) Act of 1984 and State Security (Detention of Persons
) Amended Decree No. 14 (1994), that stipulates that the government can detain
people without charge for as long as three months in the first instance. The
decree also states that the courts cannot question any such detention or in
any other way intervene on behalf of the detainees. This decree allows the
government to arbitrarily hold people critical of the government for up to
3 months without having to explain themselves and without any opportunity
for the complainant to challenge the arrest and detention before a court of
law. The decree therefore prima facie violates the right not to be arbitrarily
arrested or detained protected in Article 6.
84. The government
has made no defence of this decree, either for its general validity or its
justice as applied in this case. Thus, the Commission holds a violation of
Article 6.