17th Session: Commissioner Janneh
18th Session: Commissioner Umozurike
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 COMPLAINANT
1. Communications 105/93, 128/94 and 130/94 state that after the annulment
of the Nigerian elections of 12 June 1993, several decrees were issued by
the government. These proscribed the publication of two magazines. State
officials sealed the premises of the two magazines embarking upon frequent
seizures of copies of magazines critical of its decisions and arrest of
newspaper vendors selling such magazines.
2. By decree, the government also proscribed 10 newspapers published by four
different media organisations. The complainant alleges that the newspapers
and their operators were not previously accused of any wrongdoing either
publicly or before a court of law or given any opportunity to defend
themselves before their premises were sealed up on July 22 and they were
subsequently outlawed by Decree 48 of 1993, which was released on 16 August
3. Constitution (Suspension and Modification) Decree no. 107 of 17 November
1993 Article 5 specifies: “No question as to the validity of this Decree or
any other Decree made during the period 31st December 1983 to 26th August
1993 or made after the commencement of this Decree or of an Edict shall be
entertained by a court of law in Nigeria.”
4. On 16 August 1993, the Government also announced the promulgation of the
Newspaper Decree No. 43 of 1993. By virtue of Section 7 of the Decree, it is
an offence, punishable with either a fine of N250.000 or imprisonment for a
term of 7 years or both for a person to own, publish or print a newspaper
not registered under the Decree. The registration of existing newspapers
under a previously subsisting law (the Newspaper Act) is extinguished by the
5. The decision whether or not to register a newspaper is vested exclusively
in the Newspapers Registration Board set up under the Decree. Compliance
with the formal pre-registration requirements stipulated in the Decree does
not guarantee registration of a newspaper because the Newspaper Registration
Board has total discretion to decide whether the registration of a newspaper
is “justified having regard to the public interest”. There are no procedures
for challenging the Board’s decision not to register a newspaper.
6. If the Board decides to register a newspaper, N100.000 must be paid as
registration fee. Furthermore, N250.000 must be deposited into a fund to
meet the amount of any penalty imposed on or damages awarded against the
owner, printer, or publisher of the newspaper by a court of law in the
future. Under the Newspapers Act (now repealed by Decree 43), a bond for
N500 with sureties was sufficient security for possible penalties or damages
which might be imposed on or awarded against a newspaper.
7. Although released by the Government on 16 August 1993, the Decree is
given a retroactive commencement date to 23 June 1993 and persons intending
to own, print or publish newspapers in Nigeria are obliged to apply for
registration within three weeks of the commencement of the Decree (i.e. by
14 July 1993) after complication with pre-registration requirements, thus
making all newspapers in Nigeria immediately “illegal”, and owners, printers
and publishers liable to be arrested and detained.
8. Communications 128/94 and 130/94 deal specifically with the events of 2
January 1994 when 50,000 copies of TELL magazine were seized by heavily
armed policemen and other security officers on the printer’s premises. In
addition, twelve films and fourteen plates, used for processing, were also
confiscated. TELL is a popular weekly magazine whose aim is to promote and
protect human rights in Nigeria. That week’s issue was entitled: “The Return
of Tyranny - Abacha bares his fangs”. The story involved a critical analysis
of certain legislation enacted by the military government which ousts the
jurisdiction of the courts. The complainant stated that no remedies were
available at the local level, the jurisdiction of the courts having been
ousted in considering the validity of such actions.
9. Communication 152/96 was submitted by Constitutional Rights Project. It
states that on 23 December 1995 Mr. Nosa Igiebor, the Editor in Chief of
TELL Magazine was arrested and detained. The Constitutional Rights Project
alleges that he was not told the reason for his arrest and that no charge
has been made against him. Furthermore, Constitutional Rights Project
alleges that he has been denied access to his family, doctors and lawyers
and that he has received no medical help even though his health is
10. Constitutional Rights Project also claim that TELL Magazine was declared
illegal and in violation of Decree No. 43 of 1993 which requires all
newspapers to register with the Newspaper Registration Board and to pay a
pre-registration fee of N250,000 and a non-refundable fee of N100,000. These
payments would be put into a fund for payment of penalties from libel
actions against the owner, publisher or printer. Constitutional Rights
Project stated that Decree No. 43 of 1993 had been declared null and void by
two different courts, namely the Ikeja High Court on 18 November 1993, and
the Lagos High Court on 5 December 1993. The Nigerian Government did not
appeal against these decisions.
11. In his oral arguments before the Commission, the complainants’
representative emphasised that the government’s prerogative to make laws for
peace and good government does not entitle it to evade its obligations under
THE STATE PARTY’S RESPONSE AND OBSERVATIONS
12. The government has made no written submissions in respect of this
communication. At the 19th session, held in March 1995 in Ouagadougou,
Burkina Faso, the government sent a delegation of several persons. Mr. Chris
Osah, Assistant Director General of the Legal and Treaties Department at the
Ministry of Foreign Affairs, made the following statements in his
presentation on the communication.
13. He stated that “Decree No. 43 of 1993 was made to underscore not only
the government’s sovereign rights but also its policy of free enterprise.
Registration fees are payable to an independent board. It is in the public
interest that all newspaper providers or publishers should ensure
registration of their enterprises. The government is convinced that such
registration fees are reasonable and justifiable in any democratic society.
In any case, many newspapers and magazines operate although they have not
14. On ouster of the jurisdiction of the courts, the government stated that
“there is nothing particularly new about this. It is the nature of military
regimes to provide for ouster clauses, the reasons being that for a military
administration which has come in, the resources of litigation become too
cumbersome for the government to do what it wants to do”.
15. As for retroactive effect, the government maintained that, although the
decree technically did have retroactive effect, not a single newspaper was
declared illegal or harassed for violating the decree.
16. The communications allege violations of Articles 6, 7, 9, 14 and 16. of
PROCEDURE BEFORE THE COMMISSION
17. Communication 105/93 is dated 1 September 1993. The Commission was
seized of the communication at the 14th Session. The state concerned was
notified on January 1994.
18. Communication 128/94 is not dated but was received at the Secretariat
between January and April 1994. The Commission was seized of the
communication at the 15th session. The text of the communication was sent to
the state concerned on 29 July 1994.
19. Communication 130/94 is dated 5 January 1994. The Commission was seized
of the communication at its 15th session and the text was sent to the state
on 29 July 1994. The procedure relating to these three cases is the same.
20. On 14 September 1994 a letter was sent to the complainants concerning
communications no. 105/93, 128/94 and 130/94, asking whether all domestic
remedies had been exhausted and whether any further seizures of TELL
Magazine has occurred since 2 January 1994.
21. A reminder was sent by the Secretariat of the Commission to the
government of Nigeria on 22 September 1994.
22. At the 16th session, held in October 1994 in Banjul, The Gambia, the
Commission declared the communications admissible.
23. At the 17th session, held in March 1995 in Lomé, Togo, it was decided to
delay final decision on the cases so that they might be taken up with the
Nigerian authorities when the Commission undertook its mission to that
country. It was also declared that the chairman of the OAU should be
informed of the situation in Nigeria.
24. On 20 April 1995, a letter was sent by the Secretariat of the Commission
to the complainants stating that the communications were declared
admissible, and that a mission would be sent to Nigeria, and that a decision
on the merits would be taken at the 18th session.
25. On 7 June 1995, a letter was sent by the Secretariat of the Commission
to the government of Nigeria stating that the communications were declared
admissible and that a mission would be sent to Nigeria.
26. On 1 September 1995, a letter was sent to the government of Nigeria
stating that the communications would be heard on the merits at the 18th
session of the Commission and inviting the government to send a
27. At the 18th session of the Commission it was decided that the
communications would be taken up by the mission to Nigeria, and if the
government did not facilitate the visit, the Commission would at the next
session adopt a decision on the facts available.
28. On 30 November 1995 a letter was sent to the complainants reflecting
29. On 30 November 1995 a note verbale was sent to the government of Nigeria
reflecting this decision.
30. At the 19th session, the Commission heard Mr. Chidi Anselm Odinkalu, who
was duly instructed to appear for all the complainants in all cases against
Nigeria, except that brought by International PEN. The Commission heard Mr.
Osah and Mr. Bello for the Nigerian Government in reply. 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.
31. On 9 May 1996 letters were send to the Nigerian Government,
Constitutional Rights Project and Media Rights Agenda informing them of the
Commission’s renewed decision to take a mission to the country and that the
three communications detailed above would be considered on their merits at
the 20th session in October 1996.
32. 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 21st session, awaiting the result of the planned
mission to Nigeria.
33. On 10 December 1996 the Secretariat sent a note verbale to this effect
to the government.
34. On 10 December 1996 the Secretariat sent letters to this effect to the
35. Communication 152/96 is dated January, 1996.
36. On 5 February 1996 a letter was sent to the complainant acknowledging
receipt of the communication and that the admissibility of the case would be
examined at the 20th session in October 1996.
37. At the 19th session the communication was not examined.
38. At the 20th session held in Grand Bay, Mauritius October 1996, the
Commission declared the communication admissible, and decided that it would
be taken up with the relevant authorities by the planned mission to Nigeria.
At the same time it was joined with communications 105/93, 128/94 and
39. 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
40. Among the objections raised and or observations made were on: the
neutrality, Credibility and Relevance; and, composition of the Mission.
41. 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.
42. On 22 May, the complainants were informed of the Commission’s decision,
while the State was informed on May 28.
43. From this date on, the procedure in respect of the communication is
identical to that in communication 105/93, 128/94 and 130/94, above.
44. At the 22nd Ordinary session the Commission postponed taking a decision
on the cases pending the discussion of the Nigerian Mission report.
45. At the 23rd ordinary session held in Banjul, The Gambia, the Commission
postponed consideration of the case to the next session due to lack of time.
46. On 25 June 1998, the Secretariat sent letters to the parties concerned
informing them of the status of the case.
47. 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.”
48. Specifically, in the four decisions the Commission has already taken
concerning Nigeria, Article 56.5 is analyzed 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.
49. 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 legal prohibited their challenge in
the Nigerian Courts (ACHPR/129/94:14-15).
50. In all of the cases cited above, the Commission found that the ouster
clauses render local remedies non-existent, ineffective or illegal. 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.
51. In communication 152/96 the complainant states that Decree no. 43 has
been declared null and void by two different courts, but these decisions
have not been respected by the government. This is a dramatic illustration
of the futility of seeking a remedy from the Nigerian courts.
52. For these reasons, consistent with its earlier decisions, the Commission
declared the communications admissible.
53. Article 9 of the African Charter reads:
“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.”
54. This Article reflects the fact that freedom of expression is a basic
human right, vital to an individual's personal development, his political
consciousness, and participation in the conduct of public affairs in his
country. The problem at hand is whether the decrees requiring the
registration of newspapers, and prohibiting many of them, violate this
55. A payment of a registration fee and a pre-registration deposit for
payment of penalty or damages is not in itself contrary to the right to the
freedom of expression. The government has argued that these fees are
"justifiable in any democratic society", and the Commission does not
56. However, the amount of the registration fee should not be more than
necessary to ensure administrative expenses of the registration, and the
pre-registration fee should not exceed the amount necessary to secure
against penalties or damages against the owner, printer or publisher of the
newspaper. Excessively high fees are essentially a restriction on the
publication of news media. In this case, the fees required for registration,
while high, are not so clearly excessive that they constitute a serious
57. Of more concern is the total discretion and finality of the decision of
the registration board, which effectively gives the government the power to
prohibit publication of any newspapers or magazines they choose. This
invites censorship and seriously endangers the rights of the public to
receive information, protected by Article 9.1. There has thus been a
violation of Article 9.1.
58. Also of serious concern is the retroactivity of the decree. The
government bases its defense on the non-enforcement of this aspect of the
decree. The government representative offered this defense: "Article 7.2 of
the Charter is very specific: "no one may be condemned” and we are saying
that no one has been condemned. Second, it says "no penalty may be
inflicted" we are also submitting that there has been no penalty
inflicted...We are even going further to say that more than 3/4 of the
newspapers in Nigeria have registered and yet nobody has taken them to
59. While it is reassuring to hear that no one has suffered under the
retroactivity clause of the Decree No. 43, the Commission must take a stand
on the issue of justice underlying Article 7.2 and condemn the literal,
minimalist interpretation of the Charter offered by the representative of
Nigeria. Article 7.2 must be read to prohibit not only condemnation and
infliction of punishment for acts which did not constitute crimes at the
time they were committed, but retroactivity itself. It is expected that
citizens must take the laws seriously. If laws change with retroactive
effect, the rule of law is undermined since individuals cannot know at any
moment if their actions are legal. For a law-abiding citizen, this is a
terrible uncertainty, regardless of the likelihood of eventual punishment.
60. Furthermore, the Commission unfortunately cannot rest total confidence
in the assurance that no one and no newspaper has yet suffered under the
retroactivity of Decree 43. Potential prosecution is a serious threat. An
unjust but un-enforced law undermines, as above, the sanctity in which the
law should be held. The Commission must thus holds that Decree no. 43
violates Article 7.2.
61. Communication 152/96 states that two different courts have declared
Decree no. 43 null an void, without any result.
62. This shows not only a shocking disrespect by the Nigerian government for
the judgments of the courts, it is also a violation of Article 7.1. The
right to have one's cause heard by competent and independent courts must
naturally comprise the duty of everyone, including the state, to respect and
follow these judgments.
63. Decree No. 48 proscribes approximately 10 newspapers published by four
different media organizations without having subjected them to the due
process of the law. Decree No. 48 likewise permitted the newspapers and
their operators to have their premises sealed without being given any
opportunity to defend themselves and without previously being accused of any
wrongdoing before a court of law.
64. 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
65. With these words the Commission states a general principle that applies
to all rights, not only freedom of expression. Governments should avoid
restricting rights, and have 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
66. According to Article 9.2 of the Charter, dissemination of opinions may
be restricted by law. This does not mean that national law can set aside the
right to express and disseminate one's opinions; this would make the
protection of the right to express one's opinions ineffective. To allow
national law to have precedent over the international law of the Charter
would defeat the purpose of the rights and freedoms enshrined in the
Charter. International human rights standards must always prevail over
contradictory national law. Any limitation on the rights of the Charter must
be in conformity with the provisions of the Charter.
67. In contrast to other international human rights instruments, the African
Charter does not contain a derogation clause. Therefore limitations on the
rights and freedoms enshrined in the Charter cannot be justified by
emergencies or special circumstances.
68. The only legitimate reasons for limitations to the rights and freedoms
of the African Charter are found in Article 27.2, that is that the rights of
the Charter "shall be exercised with due regard to the rights of others,
collective security, morality and common interest."
69. The reasons for possible limitations must be founded in a legitimate
state interest and the evils of limitations of rights must be strictly
proportionate with and absolutely necessary for the advantages which are to
70. Even more important, a limitation may never have as a consequence that
the right itself becomes illusory.
71. The government has provided no evidence that the prohibition was for any
of the above reasons given in Article 27.2. Given that Nigerian law contains
all the traditional provisions for libel suits, so that individuals may
defend themselves where the need arises, for the government to proscribe a
particular publication, by name, is disproportionate and uncalled for. Laws
made to apply specifically to one individual or legal personality raise the
serious danger of discrimination and lack of equal treatment before the law,
guaranteed by Article 3. The proscription of "The News" cannot therefore be
said to be "within the law" and constitutes a violation of Article 9.2.
72. Communications 128/94 and 130/94 allege that 50,000 copies of TELL
magazine were seized without any possibility of having the decision judged
by a court of law, because of an article critical of the government.
73. In the present case, the government has provided no evidence that
seizure of the magazine was for any other reason than simple criticism of
the government. The article in question might have caused some debate and
criticism of the government, but there seems to have been no information
threatening to, for example, national security or public order in it. All of
the legislation criticized in the article was already known to members of
the public information, as laws must be, in order to be effective.
74. The only person whose reputation was perhaps tarnished by the article
was the head of state. However, in the lack of evidence to the contrary, it
should be assumed that criticism of the government does not constitute an
attack on the personal reputation of the head of state. People who assume
highly visible public roles must necessarily face a higher degree of
criticism than private citizens; otherwise public debate may be stifled
75. It is important for the conduct of public affairs that opinions critical
of the government be judged according to whether they represent a real
danger to national security. If the government thought that this particular
article represented merely an insult towards it or the head of state, a
libel action would have been more appropriate than the seizure of the whole
edition of the magazine before publication. The seizure of the TELL
therefore amounts to a violation of Article 9.2.
76. Article 14 of the Charter reads:
The right to property shall be guaranteed. It may only be encroached upon in
the interest of public need or in the general interest of the community and
in accordance with the provisions of appropriate laws.
77. The government did not offer any explanation for the sealing up of the
premises of many publications. Those affected were not previously accused in
a court of law, of any wrongdoing. The right to property necessarily
includes a right to have access to property of one's own and the right not
for one's property to be removed. The Decrees which enabled these premises
to be sealed up and for publications to be seized cannot be said to be
"appropriate" or in the interest of the public or the community in general.
The Commission holds a violation of Article 14. In addition, the seizure of
the magazines for reasons that have not been shown to be in the public need
or interest also violates the right to property.
78. In his oral argument, the complainant specifically raised the ouster of
the court's jurisdiction over the decrees at issue here, denying the alleged
victims the right to challenge the acts which affected them. The government
offered the surprising defense that "[I]t is in the nature of military
regimes to provide for ouster clauses", because without such clauses the
volume of litigation would make it "too cumbersome for the government to do
what it wants to do".
79. This argument rests on the assumption that ease of government action
takes precedence over the right of citizens to challenge such action. It
neglects the central fact that the courts are a critical monitor of the
legality of government action, which no lawful government acting in good
faith should seek to evade. The courts' ability to examine government
actions and, if necessary, halt those that violate human rights or
constitutional provisions, is an essential protection for all citizens.
80. It is true that if national tribunals are not deprived of their powers,
they will almost certainly eventually pronounce on the legality of military
government itself. The government representative's argument implicitly
admits what the Commission has already said in its decision on communication
102/93, which is that military regimes rest on questionable legal ground.
Government by force is in principle not compatible with the rights of
peoples' to freely determine their political future.
81. A government that governs truly in the best interest of the people,
however, should have no fears of an independent judiciary. The judiciary and
the executive branch of government should be partners in the good ordering
of society. For a government to oust the jurisdiction of the courts on a
broad scale reflects a lack of confidence in the justifiability of its own
actions, and a lack of confidence in the courts to act in accordance with
the public interest and rule of law.
82. The Commission must therefore reject the defense of "the nature of
military regimes" offered by the government's representative, and holds that
the ouster of the court's jurisdiction violates the right to have one's
cause heard, under Article 7.1
83. 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.”
84. Communication 152/96 alleges that Mr. Nosa Igiebor was arrested and
detained without being told any reason and without any charges being made.
85. The government has offered no substantive response to this allegation.
86. The Commission, in several previous decisions, has set out the principle
that where allegations of human rights abuses go uncontested by the
government concerned, even after repeated notifications, the Commission must
decide on the facts provided by the government at treat those facts as given
(See, e.g., the Commission's decisions in communications 59/91, 60/91,
64/91, 87/91 and 101/93). Therefore the Commission finds that there has been
a violation of Article 6.
87. Article 7.1 (c) of the African Charter reads:
“1. Every individual shall have the right to have his cause heard. This
(c) The right to defense, including the right to be defended by counsel of
his own choice;”
88. Constitutional Rights Project alleges that Mr. Nosa Igiebor was denied
access to lawyers. The government has made no response to this allegation.
Therefore the Commission must take a decision on the facts as presented by
the complainant. To be denied access to a lawyers is a violation of Article
7.1(c) even if there were no charges against Mr. Igiebor. People who are
detained in violation of the Charter must not have lesser rights that those
detained in conformity with the rules in Article 7.
89. Article 16 of the African Charter reads:
“1.Every individual shall have the right to enjoy the best attainable state
of physical and mental health.
2. States Parties to the present Charter shall take the necessary measures
to protect the health go their people and to ensure that they receive
medical attention when they are sick.”
90. The Constitutional Rights Project alleges Mr. Nosa Igiebor was denied
access to doctors and that he received no medical help even though his
health was deteriorating through his detention. The government has made no
response to this allegation. Therefore the Commission must take a decision
on the facts as presented by the complainant.
91. The responsibility of the government is heightened in cases where the
individual is in its custody and therefore someone whose integrity and
well-being is completely dependent on the activities of the authorities. To
deny a detainee access to doctors while his health is deteriorating is a
violation of Article 16.
FOR THESE REASONS, THE COMMISSION
Holds a violation of Article 6, 9.1, 9.2, 7.1(c), 7.2, 14, et 16 of the
Requests that the Government of Nigeria take the necessary steps to bring
its law into conformity with the Charter.
Banjul, 31st October 1998.