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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: |
https://www.worldcourts.com/achpr/eng/decisions/1995.03.22_Constitutional_Rights_Project_v_Nigeria_87_93.htm |
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Citation: |
Constitutional Rights Project v.
Nigeria, Decision, Comm. 87/93 (ACmHPR, Mar. 22, 1995) |
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 197 (2002); Documents of the African Commission on Human and
Peoples� Rights, at 391(Malcolm D. Evans & Rachel Murray eds.,
2001); (2000) AHRLR 183 (ACHPR 1995) |
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THE FACTS
1. Communication 87/93 was brought on behalf of seven men - Zamani Lekwot,
James Atomic Kude, Yohanna Karau Kibori, Marcus Mamman, Yahaya Duniya,
Julius Sarki Zamman Dabo and Iliya Maza - sentenced to death under the Civil
Disturbances (Special Tribunal) Decree No.2 of 1987 from Nigeria. This
decree does not provide for any judicial appeal against the decisions of the
special tribunals and prohibits the courts from reviewing any aspect of the
operation of the tribunal.
2. The communication also alleges that the accused and their counsel were
constantly harassed and intimidated during the trial, ultimately forcing the
withdrawal of the defence counsel. Despite the lack of defense, the tribunal
condemned the accused to death for culpable homicide, unlawful assembly and
breach of the peace.
ARGUMENT
3. The communication argues that the prohibition on judicial review of the
special tribunals and lack of judicial appeals of judgments of these
tribunals violates the right to an appeal to competent national organs
against acts violating fundamental rights, guaranteed by Article 7,
paragraph l(a) of the African Charter.
4. The communication complains that the conduct of the trials before these
tribunals, which included harassment of defense counsel, and deprivation of
defense counsel, violated the right to be defended by counsel of one's
choice, guaranteed by Article 7, paragraph l(c).
5. The communication finally complains that the practice of setting up
special tribunals, composed of members of the armed forces and police in
addition to judges, violates the right to be tried by an impartial tribunal
guaranteed by Article 7, paragraph 1 (d).
THE LAW
ADMISSIBILITY
6. The case was declared admissible at the 14th Session of the Commission on
the following grounds:
7. The case raises the question of whether the remedies available are of a
nature that requires exhaustion.
8. The Act complained of in Communication No. 87/93 is the Civil
Disturbances (Special Tribunal) Act, in which Part IV, Section S(1)
provides:
"The validity of any decision, sentence, judgment,... or order given or
made,... or any other thing whatsoever done under this Act shall not be
inquired into in any court of law."
9. The Civil Disturbances Act empowers the Armed Forces Ruling Council to
confirm the penalties of the Tribunal.
This power is a discretionary, extraordinary remedy of a non-judicial
nature. The object of the remedy is to obtain a favour and not vindicate a
right. It would be improper to insist on the complainant seeking remedies
from a source which does not operate impartially and has no obligation to
decide according to legal principles. The remedy is neither adequate nor
effective.
10. Therefore, the Commission is of the opinion that the remedy available is
not of a nature that requires exhaustion according to Article 56, paragraph
5 of the African Charter.
THE MERITS OF THE CASE
11. The Civil Disturbances (Special Tribunal) Act, Part IV, Section 8(1)
provides:
"The validity of any decision, sentence, judgment,... or order given or
made,... or any other thing whatsoever done under this Act shall not be
inquired into in any court of law."
12. A "decision, sentence, judgment... order given or made... or any other
thing whatsoever done under" the Civil Disturbances Act may certainly
constitute an "Act violating fundamental rights in question are those to
life and liberty provided for in Articles 4 and 6 of the African Charter.
While punishments decreed as the culmination of a carefully conducted
criminal procedure do not necessarily constitute violations of these rights,
to foreclose any avenue of appeal to "competent national organs" in criminal
cases bearing such Charter, and increases the risk that even severe
violations may go unredressed.
13. The communication alleges that during the trials the defense counsel for
the complainants was harassed and intimidated to the extent of being forced
to withdraw from the proceedings. In spite of this forced withdrawal of
counsel, the tribunal proceeded to give judgment in the matter, finally
sentencing the accused to death. The Commission finds that defendants were
deprived of their right to defense, including the right to be defended by
counsel of their choice, violation of Article 7.1 (c) as cited above.
14. The Civil Disturbances (Special Tribunal) Act, Part II, Section 2 (2)
says that the tribunal shall consist of one judge and four members of the
Armed Forces. As such, the tribunal is composed of persons belonging largely
to the executive branch of government, the same branch that passed the Civil
Disturbances Act.
Article 7.1 (d) of the African Charter requires the court or tribunal to be
impartial. Regardless of the character of the individual members of such
tribunals, its composition alone creates the appearance, if not actual lack
of impartiality. It thus violates Article 7.1 (d).
FOR THE ABOVE REASONS, THE COMMISSION declares that there has been a
violation of Article 7(a), (c) and (d) of the African Charter; and
recommends that the Government of Nigeria should free the complaints.
At the 17th Session the Commission decided to bring the file to Nigeria for
a planned mission in order to make sure that the violations have been
repaired. |
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