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BEFORE: |
CHAIRMAN: Prof. Isaac Nguema
VICE CHAIRMAN: Dr. Mohamed H. Ben Salem
COMMISSIONERS: Prof. Emmanuel V.O. Dankwa, Mr. Sourahata B. Semega
Janneh, Mr. Robert H. Kisanga, Dr. Vera V.B.S. Duarte-Martins, Dr.
Ibrahim A. Badawi El-Sheikh, Prof. U. Oji Umozurike, Mr. Atsu Koffi
Amega. |
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PermaLink: |
http://www.worldcourts.com/achpr/eng/decisions/1995.03.22_Civil_Liberties_Organisation_v_Nigeria_101_93.htm |
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Citation: |
Civil Liberties Organisation v.
Ghana, Decision, Comm. 101/93 (ACmHPR, Mar. 22, 1995) |
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Publications: |
IHRDA, Compilation of Decisions on
Communications of the African Commission On Human and Peoples’
Rights Extracted from the Commission’s Activity Reports 1994-2001,
at 200 (2002); Documents of the African Commission on Human and
Peoples’ Rights, at 394 (Malcolm D. Evans & Rachel Murray eds.,
2001; (2000) AHRLR 186 (ACHPR 1995) |
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THE FACTS
1. The communication is brought by the Civil Liberties Organization, a
Nigerian non-governmental organization, in protest against the Legal
Practitioners’ Decree. This decree establishes a new governing body of the
Nigerian Bar Association, namely the Body of Benchers. Of the 128 members of
this body, only 31 are nominees of the Bar Association. The rest are
nominees of the government.
2. The functions of the Body of Benchers are (1) the prescription of
practising fees one tenth of which are payable every year to the Body and
(2) the disciplining of legal practitioners.
3. The decree excludes recourse to the Courts and makes it an offence ”to
commence or maintain an action or any legal proceeding whatever relating to
or connected with or arising from the exercise of any of the powers of the
Body of Benchers”. The decree is retrospective.
ARGUMENT
4. The communication argues that the prohibition on litigation violates
Article 7 of the African Charter.
5. The communication argues that the new governing body for the Nigerian Bar
Association, established by governmental decree, violates Nigerian lawyers’
freedom of association guaranteed by Article 10 of the African Charter.
THE LAW
6. This communication was declared admissible at the 16th session.
7. The Legal Practitioners (Amendment) Decree 1993, Section 23 A, subsection
1, reads:
“No person shall commence or maintain an action or any legal proceeding
whatsoever relating to, connected with or arising from:
(a)the management of the affairs of the association; or
(b)the exercise or preparation by the Body of Benchers for the exercise of
the powers conferred upon it by this Act”.
8. A decision must be taken as to whether the above mentioned decree
constitutes a violation of the African Charter.
9. The Commission finds that the present case raises questions concerning
Article 7, the right to fair trial, and Article 10, the right to freedom of
association.
10. The above mentioned Legal Practitioners (Amendment) Decree 1993, Section
23 A, subsection 3 reads:
“A person who contravenes the subsection (1) of this section commits an
offence and is liable on conviction to a fine of N 10,000 or to imprisonment
for a term of one year or to both such fine and imprisonment”.
The Decree is retrospective since it was issued 18 February 1993 but was
deemed to come into force on 31 July 1992.
11. Article 6 of the African Charter reads:...No one may be deprived of his
freedom, except for reasons and conditions previous laid down by law.
No retrospective law may deprive a person of his liberty. The wording of the
decree therefore constitutes a violation of Article 6.
12. Article 7(2) of the African Charter reads:
“No one may be condemned for an act or omission which did not constitute a
legally punishable offence for which no provision was made at the time it
was committed.
The Commission is of the opinion that the retrospective effect of the decree
constitutes a violation of Article 7(2) of the African Charter.”
13. Article 7(1) of the African Charter reads:
“Every individual shall have the right to have his cause heard. ...
The powers of the Body of Benchers include financial and disciplinary
matters. The prohibition on litigation against these powers infringes the
right to appeal to national organs, and violates Article 7(1) of the
Charter.”
14. Article 10 of the African Charter reads:
“Every individual shall have the right to free association provided he
abides by the law.
Freedom of association is enunciated as an individual right and is first and
foremost a duty for the State to abstain from interfering with the free
formation of associations. There must always be a general capacity for
citizens to join, without State interference, in associations in order to
attain various ends.”
15. In regulating the use of this right, the competent authorities should
not enact provisions which would limit the exercise of this freedom [FN1].
The competent authorities should not override constitutional provisions or
undermine fundamental rights guaranteed by the constitution and
international human rights standards.
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[FN1] Resolution on the right to freedom of Association, adopted by the
African Commission on Human and Peoples' Rights, at its 11th Ordinary
Session.
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16. The Body of Benchers is dominated by representatives of the government
and has wide discretionary powers. This interference with the free
association of the Nigerian Bar Association is inconsistent with the
preamble of the African Charter in conjunction with UN Basic Principles on
the Independence of the Judiciary [FN2] and thereby constitutes a violation
of Article 10 of the African Charter.
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[FN2] UN General Assembly Resolution no. 40/32 of 29 November 1985 and
40/146 of 13 December 1985.
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FOR THE ABOVE REASONS, THE COMMISSION holds that there has been a violation
of Articles 6, 7, and 10 of the African Charter on Human and Peoples’
Rights. The Decree should therefore be annulled. |
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