CHAIRMAN: Prof. E.V.O. Dankwa
VICE CHAIRPERSON: Mrs. Julienne Ondziel-Gnelenga
COMMISSIONERS: Professor Isaac Nguema, Dr. Ibrahim Ali Badawi
El-Sheikh, Dr. Hatem Ben Salem, Mr. Kamel Rezag-Bara, Dr. Nyameko
Barney Pityana, Mr. Andrew Ranganayi Chigovera, Mrs. Florence
Butegwa, Mrs. Vera Mlangazuwa Chirwa, Mrs. Jainaba Johm
||Ctr. For Free Speech v. Nig., Comm.
206/97, 13th ACHPR AAR Annex V (1999-2000)
||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 273 (2002); Documents of the African Commission on Human and
Peoples’ Rights, Vol. 2, at 165 (Malcolm D. Evans & Rachel Murray
eds., 2009); (2000) AHRLR 250 (ACHPR 1999)
23rd Session: Commissioner Dankwa
24th Session: Commissioner Dankwa
25th Session: Commissioner Dankwa
26th Session: Commissioner Dankwa
SUMMARY OF FACTS
1. The complainant alleges the unlawful arrest, detention, trial and
conviction of four Nigerian journalists, by a Military Tribunal presided
over by one Patrick Aziza.
2. The journalists were convicted for reporting stories on the alleged 1995
coup attempt in their various newspapers and magazines. The journalists are:
Mr. George Mba of TELL magazine, Mr. Kunle Ajibade of THE NEWS magazine, Mr.
Ben Charles Obi of CLASSIQUE Magazine and Mrs. Chris Anyanwu of TSM
3. The journalists were tried in secret and were not allowed access to
counsel of their choice.
4. The journalists were sentenced to various terms of imprisonment.
5. The convicted journalists could not appeal against their sentences
because of the various Decrees promulgated by the Military Regime that ousts
the jurisdiction of regular courts from hearing appeals on cases decided by
a Military Tribunal.
The complainant asserts that the following Articles of the African Charter
have been violated:
Articles 6, 7 and 24 and Principle 5 of the U. N. Basic Principles on the
Independence of the Judiciary
6. The communication is dated 14 July 1997 and the Secretariat acknowledged
receipt on 23 September 1997.
7. Correspondences were exchanged between the Secretariat and the parties
for additional information and to keep the latter informed of the
8. For a communication submitted under Article 55 of the Charter to be
declared admissible, it must satisfy all the conditions stipulated under
Article 56 of the Charter. Such conditions must be assessed based on the
circumstances of each particular case. In this case, the communication prima
facie is in accordance with these requirements. The only issue that might be
raised is with regard to the exhaustion of local remedies as provided for
under Article 56(5) of the Charter.
9. Article 56(5) states:
“Communications relating to the human and peoples’ rights referred to in
Article 55 received by the Commission, shall be considered if they:
… are sent after exhausting local remedies if any, unless it is obvious that
this procedure is unduly prolonged.”
10. The jurisdiction of the courts are ousted by Treason and Treasonable
Offences (Special Military Tribunal) Decree. Applying the decisions of the
Commission in communication 60/91, which concerned the Robbery and Firearms
Tribunal, communication 87/93 on the Civil Disturbances Tribunal,
communication 101/92 on the Legal Practitioners Decree and communication
129/94 relating to the Constitution (Suspension and Modification) Decree and
the Political Parties (Dissolution), the Commission finds that local
remedies in the instant communication were non-existent or ineffective.
For the above reasons, the Commission declared the communication admissible.
11. The complainant alleges the illegal arrest and detention of the
Journalists as being in violation of their right to liberty and security of
person as provided for in Article 6 of the Charter.
Article 6 of the Charter provides:
“Every individual shall have the right to liberty and the security of
No One may be deprived of his freedom except for the reasons and conditions
laid down by law. In particular, no one may be arbitrarily arrested or
12. The complainant also alleges violation of Article 7 of the Charter and
Principle 5 of the United Nations Basic Principles on the Independence of
the Judiciary in that the Journalists were tried in secret, were denied
access to counsel of their choice and later sentenced to various terms of
imprisonment. Further, that the convicted Journalists could not appeal
against their sentences because of the various Decrees promulgated by the
Military government that ousts the jurisdiction of the regular courts from
hearing such cases.
Article 7 (1) of the Charter provides:
“Every individual shall have the right to have his cause heard.
This comprises: (a) The right to an appeal to competent national organs
against acts violating his fundamental rights as recognised and guaranteed
by conventions, laws, regulations and customs in force;”
Principle 5 of the UN Basic Principles stipulates:
“Everyone shall have the right to be tried by the ordinary courts or
tribunals using established legal procedures. Tribunals that do not use the
duly established procedures of the legal process shall not be created to
displace the jurisdiction belonging to the ordinary courts or judicial
13. It is alleged that the convicted persons were not allowed access to
their lawyers, neither were they given the opportunity to be represented and
defended by lawyers of their own choice at the trial. Article 7 (1) (c) of
the Charter provides:
“Every individual shall have the right to defence, including the right to be
defended by counsel of his choice.”
14. In its Resolution on the Right to Recourse Procedure and Fair Trial, the
Commission in re-enforcing this right observed in paragraph 2 (e) (i) thus:
“In the determination of charges against individuals, the individual shall
be entitled in particular to:
(i) … communicate in confidence with counsel of their choice
The denial of this right therefore is in contravention of Article 7(1)(c) of
15. The issue of the arraignment and trial of the Journalists must also be
addressed here. The complainant alleges that the Journalists were arraigned,
tried and convicted by a Special Military Tribunal, presided over by a
serving military officer and whose membership also included some serving
military officers. This is in violation of the provisions of Article 7 of
the Charter and Principle 5 of the UN Basic Principles.
16. It could not be said that the trial and conviction of the four
Journalists by a Special Military tribunal presided over by a serving
military officer who is also a member of the PRC, the body empowered to
confirm the sentence, took place under conditions which genuinely afforded
the full guarantees of fair hearing as provided for in article 7 of the
Charter. The above act is also in contravention of Article 26 of the
Article 26 of the Charter states:
“State parties to the present Charter shall have the duty to guarantee the
independence of the courts and shall allow the establishment and improvement
of appropriate national institutions entrusted with the promotion and
protection of the rights and freedoms guaranteed by the present Charter.”
17. Unfortunately, the government of Nigeria has not responded to the
several requests from the Commission for the former’s reaction to the
communication. The African Commission on several previous decisions has set
out the principle that where allegations of human rights violations go
uncontested by the government concerned, particularly after repeated
notifications or request for information on the case, the Commission must
decide on the facts provided by the complainant and treat those facts as
given (see communications Nos. 59/91, 60/91, 64/91, 87/93 and 101/93).
18. In the circumstances, the Commission finds itself compelled to adopt the
position that the facts alleged by the complainant are true.
FOR THE ABOVE REASONS, THE COMMISSION concludes that the violations of
Articles 6 and 7 (1)(a) and (c ) and 26 occurred in this case;
urges the government of Nigeria to order for the release of the four
Done in Kigali, Rwanda on 15 November 1999.