17th Session: Commissioner Umozurike
18th Session: Commissioner Kisanga
19th Session: Commissioner Umozurike
20th Session: Commissioner Dankwa
21st Session: Commissioner Dankwa
22nd Session: Commissioner Dankwa
23rd Session: Commissioner Dankwa
24th Session: Commissioner Dankwa
THE FACTS AS SUBMITTED BY THE AUTHOR
1. On 12 June 1993 a presidential election was held in Nigeria. Both foreign
and local election monitoring groups observed the conduct of the election
and were generally satisfied that the elections was free and fair.
2. Three days later, the National Electoral Commission began announcing the
election results. The National Electoral Commission announced the results
from 14 states including the Federal Capital Territory, Abuja, before it was
restrained by an Abuja High Court from announcing the election results. On
June 23 the Federal Military Government announced the annulment of the June
12 election results. Various reasons were given for this action. The
communication alleges that these reasons included the fact that the military
government was not happy that Abiola, the Social Democratic candidate,
appeared to have won the election.
3. Dissatisfied with the decision of the Federal Military Government to
annul election results, Abiola, together with the Governors of all the
States controlled by the Social Democratic Party, went to the Supreme Court
to seek redress. Shortly thereafter the Federal Military Government
promulgated several Decrees ousting the jurisdiction of the courts and
restating the decision of the Nigerian government to annul the election
4. Decree No. 41 of 1993 states in part:
“Notwithstanding anything contained in the Constitution of the Federal
Republic of Nigeria 1979, as amended, the African Charters on Human and
Peoples’ Rights (Ratification and Enforcement) Act or any other enactment,
no proceeding shall lie or be instituted in any court for, or on account of
any act matter or thing done or purported to be done in respect of this
5. The other Decrees promulgated are Presidential Election (Basic
Constitutional and Transitional Provisions) (Repeal) Decree No. 39, 1993;
Transition to Civil Rule (Disqualification and Prohibition of certain
Presidential Aspirants)(Repeal) Decree No. 42 1993. These Decrees gave legal
backing to the annulment of 12 June election results and ensure that the two
presidential candidates were banned from contesting any Presidential
elections in the country.
6. When activists and journalists protested the annulment of the elections,
the government arrested and detained many persons, several of whom are named
in the communication.
7. The government also seized thousands of copies of magazines. “The News”
Magazine was proscribed by military decree in June 1993. Even prior to its
proscription, copies of the magazine were seized by security agents and four
of its editors declared wanted by the police. 50,000 copies of “Tempo”, a
weekly news magazine, were seized by security agents and the police.
THE STATE PARTY’S RESPONSE AND OBSERVATIONS
8. The government has made no written submission in respect of this case. In
an oral submission before the Commission (31 March 1996, Ouagadougou,
Burkina Faso, Chris Osah, Head of Delegation), the government stated that
the elections were held in circumstances that “the government felt were not
propitious”. The representative of the government stated that “[A]nnulling
the election and setting up a government, as was done, to all intents and
purposes, was a coup”. The government admitted that many people were
arrested and detained at the time the elections were annulled, but that
“many have now been released”.
9. The government contends that it was within its own constitutional rights
to make laws for the order and good governance of the country, which it did
in annulling the election results. The government felt that there were
irregularities which may not have been detected by the observers and that
although the elections may have been adjudged to be free and fair by all,
there were fundamental problems which the government could not brush aside.
In such circumstances the government decided that rather than put in place a
government that was going to create more problems, it should form a
different government. The government formed was in any case not a military
government but an interim national government in which people from both
parties were appointed to serve.
10. The government maintains that these actions were justified because some
people abandoned their offices and went to their villages, creating a
chaotic situation. “What the government did was to salvage a situation that
was bad. And whatever laws it made at that time, I want this Commission to
look at it in terms of [the government] holding a solution to the problem,
not as if this were geared to any particular group of people or human rights
activities...The government felt that it had to avoid chaos and it restored
an interim government, rather than even perpetuating its own regime. I think
the Commission should look rather carefully into that because it was not an
ordinary situation. I could say it was just a military coup.”(See above
statement of Chris Osah).
11. The complainant alleges violation of the following Articles of the
Charter 6 and 13.
PROCEDURE BEFORE THE COMMISSION
12. The communication was received on 29 July 1993.
13. On 6 January 1994 the Secretariat of the Commission notified the
government of Nigeria.
14. On 22 September 1994 the Secretariat of the Commission sent a reminder
to the Ministry of Foreign Affairs.
15. At the 16th Session, the Commission reiterated the need to send a
mission to Nigeria. The Commission also decided to invoke Article 58 of the
Charter by writing to the Chairman of the OAU, drawing his attention to the
grave violations of human rights in Nigeria.
16. At its 16th session, the Commission has decided that the communication
should be added to the other files that its Members going to Nigeria were to
discuss with the military authorities of this country.
17. At the 17th session, held in March 1995, it was decided that the
communication should be added to the cases to be taken up with the
authorities by members of the mission to Nigeria.
18. On 20 April 1995 the Secretariat of the Commission sent letters to both
complainants to inform them of this decision.
19. On 7 June 1995 the Secretariat to the Commission sent a letter to this
effect to the Ministry of Foreign Affairs.
20. At the 18th session, held in Praia, Cape Verde, the Commission renewed
its decision to join this file with those to be considered by the mission to
21. On 20 December 1995 the Secretariat of the Commission sent a letter to
each complainant to this effect.
22. On 20 December 1995 a letter was sent to the government of Nigeria to
23. At the 19th session, held in March 1996, these cases were due for a
decision on admissibility. The Commission heard Mr. Chidi Anselm Odinkalu
who was duly instructed to appear for the complainants in all the cases
except the International PEN, and heard Mr. Osah and Mr. Bello for the
Nigerian Government in reply.
24. 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.
25. The Commission declared the communication admissible. It further decided
that all the ten files on Nigeria in respect of which the parties were heard
during this session should be entrusted to its mission to Nigeria for
consideration during the proposed visit.
26. On 9 May 1996 a letter was sent to the Nigerian Government informing it
that at the 19th session it renewed the decision taken at the 17th session
to send a mission to the country. It also stated that the communication
would be considered on the merits at the 20th session in October 1996.
27. On 9 May 1996 letters were sent to both complainants informing them that
the communication had been declared admissible at the 19th session and that
the Commission had decided to undertake a mission to Nigeria. The merits of
the case would be examined at the 20th session.
28. At the 20th session held in Grand Bay, Mauritius, October 1996, the
Commission decided to postpone the final decision on the merits of the case
to the next session, awaiting the result of the planned mission to Nigeria.
29. On 10 December 1996 the Secretariat sent a note verbale to this effect
to the government.
30. On 10 December 1996 the Secretariat sent letters to this effect to the
31. 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.
32. Among the objections raised and or observations made were: the
neutrality, Credibility and Relevance; and composition of the Mission.
33. At its 21irst 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.
34. On 22 May 1997, the complainants were informed of the Commission’s
decision, while the State was informed on May 28 1997.
35. At the 22nd Ordinary session, the Commission postponed taking a decision
to the next session pending a discussion of the Nigerian Mission report.
36. At the 23rd Ordinary session held in Banjul, The Gambia from 20-29 April
1998, the Commission postponed consideration of this case due to lack of
37. On 25 June 1998, the Secretariat of the Commission sent letters to the
parties involved informing them of the status of the case.
38. During the 24th Ordinary session, the complainants furnished the
Commission with a “supplementary submission on pending communications on
Nigeria”, basically urging the Commission to continue consideration of
communications against Nigeria including the instant one because the
violations have not abated, and the change in government following the death
of General Sani Abacha has not changed any State responsibility of Nigeria.
39. Article 56 of the African Charter reads:
“Communications...shall be considered if they:
Are sent after exhausting local remedies, if any, unless it is obvious that
this procedure is unduly prolonged,..”
40. The annulment of the elections was brought before various Nigerian
courts by various parties, as was the seizure of the magazines. None of
these actions resulted in a remedy of the prejudice alleged, either
reinstatement of the election results or compensation for the confiscated
41. Additionally, the jurisdiction of the courts to entertain these actions
in the first place is in serious question. Decree No. 43, like almost all
decrees promulgated by the military government, contains ouster clause which
specifies that the Decree cannot be challenged in the national courts. The
ouster clauses 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 Constitutional
Rights Journal). In a unanimous opinion the court of Appeal Holden at Lagos
on December 12 1996 in the case of Chief Gani Fawehinmi v General Sani
Abacha, Attorney-General of the Federation, State Security Services,
Inspector General of Police, held that the African Charter being the joint
effort of States, no legislative body in Nigeria could oust its operation
and application in Nigeria. Dr. A.H. Yadudu, Special Adviser (Legal Matters)
to the head of State of Nigeria underscored the importance of this case in a
written address to the members of the Commission to Nigeria on Friday, March
14 1997. However, it is fair to state that at the time the case came before
the Commission no effective legal remedy existed in Nigeria of which the
appellants could avail themselves.
42. Furthermore, the Constitution (Modification and Suspension) specifies
that even decrees that may lack an internal ouster clause cannot be
challenged. Thus, Nigerians face huge legal obstacles in challenging any new
43. The Commission, in its decision on communication 129/94, decided that in
this situation, "it is reasonable to presume that domestic remedies will not
only be prolonged but are certain to yield no results."(ACHPR\S1\129/94:8).
44. For these reasons the Commission declared the communication admissible.
45. In his presentation at the 19th session, the representative of the
complainants expressed his view that an amicable resolution of the alleged
violation of Article 13, concerning the annulled elections, was impossible
because the government had already indicated that the issue was not
negotiable. The representative of the complainant requested the Commission
to clarify the legal situation by indicating if there had been a violation
of the Charter.
46. The government of Nigeria, through its official representative, referred
to "irregularities that may not have been detected by the [international]
observers" and that "though the elections may have been adjudged free and
fair by all", they were held in "circumstances that the government felt were
not propitious." (See statement of Osah, above.)
47. The government stated that "[A]nulling the elections and setting up a
government, as was done, to all intents and purposes, was a coup". These
statements accord with the complainant's argument that the question of the
election can no longer be the subject of meaningful negotiation. Although
the present government contends that there were "irregularities" in the
elections, it fails to explain what these were. The government acknowledges
that international observers of the elections, applying international
standards, judged them to be free and fair. Yet it discounted the judgement
of these international observers and substituted its own, unsupported,
48. A basic premise of international human rights law is that certain
standards must be constant across national borders, and governments must be
held accountable to these standards. The criteria for what constitutes free
and fair elections are internationally agreed upon, and international
observers are put in place to apply these criteria. It would be contrary to
the logic of international law if a national government with a vested
interested in the outcome of an election, were the final arbiter of whether
the election took place in accordance with international standards. In the
case the government does not even attempt to defend its decision to overrule
the judgement of international observers
49. Article 13.1 of the Charter reads:
“Every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law.”
50. To participate freely in government entails, among other things, the
right to vote for the representative of one's choice. An inevitable
corollary of this right that the results of free expression of the will of
the voters are respected; otherwise, the right to vote freely is
meaningless. In light of this, the annulment of the election results, which
reflected the free choice of the voters, is in violation of Article 13.1.
51. Article 20.1 of the Charter provides:
“[All peoples] shall freely determine their political status...according to
the policy they have freely chosen.”
52. The right of a people to determine their "political status" can be
interpreted as involving the right of Nigerians to be able to choose freely
those persons or party that will govern them. It is the counterpart of the
right enjoyed by individuals under Article 13.
53. The election at issue here, held in conditions adjudged to be free and
fair by international observers, was an exercise of the right of Nigerians
to freely determine this political status. The subsequent annulment of the
results by the authority in power is a violation of this right of the
54. Article 6 of the African Charter guarantees that:
“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.”
55. The government does not dispute that many people, including human rights
activists and journalists, were detained without having charges brought
against them and without the possibility of bail. The government maintains
that "many" of these individuals have since been released. Where individuals
have been detained without charges being brought, particularly since the
time of the elections, a period of now over three years, this constitutes an
arbitrary deprivation of their liberty and thus violates Article 6.
56. In the words of Article 9 of the African Charter:
“1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his
opinions within the law.”
57. The government justifies its actions with regard to the journalists and
proscription of publications by reference to the "chaotic" situation that
transpired after the elections were annulled. The Commission decided, in its
decision on communication 101/93, with respect to freedom of association,
that "competent authorities should not enact provisions which limit the
exercise of this freedom. The competent authorities should not override
constitutional provisions or undermine fundamental rights guaranteed by the
constitution and international human rights standards" (ACHPR\A\101/93:18).
58. With these words the Commission states a general principle that applies
to all rights, not only freedom of association. Government should avoid
restricting rights, and take special care with regard to those rights
protected by constitutional or international human rights law. No situation
justifies the wholesale violation of human rights. In fact, general
restrictions on rights diminish public confidence in the rule of law and are
59. Given that Nigerian law contains all the traditional provisions for
libel suits, a governmental proscription of a particular publication, by
name, is of particular concern. Ad hominem Legislation, that is laws made to
apply to specifically one individual or legal entity raise the acute danger
of discrimination and lack of equal treatment before the law guaranteed by
Article 2. The proscription of "The News" thus constitutes a violation of
Article 9. Equally, the seizure of 50,000 copies of “Tempo” and “The News”
Magazine justified in the face of Article 9 of the Charter.
FOR THE ABOVE REASONS, THE COMMISSION holds violations of Articles 1,6, 9
and 13 of the African Charter; appeals to the government of Nigeria to
release all those who were detained for protesting against the annulment of
the elections; and to preserve the traditional functions of the court by not
curtailing their jurisdiction.
Banjul, 31 October 1998