18th Session: Commissioner Umozurike
19th Session: Commissioner Umozurike
20th Session: Commissioner Kisanga
21st Session: Commissioner Dankwa
22nd Session : Commissioner Dankwa
23rd Session : Commissioner Dankwa
24th Session : Commissioner Dankwa
25th Session : Commissioner Dankwa
26th Session : Commissioner Dankwa
SUMMARY OF FACTS
1. Communication 143/95 alleges that the Government of Nigeria, through the
State Security (Detention of Persons) Amended Decree No. 14 (1994), has
prohibited any court in Nigeria from issuing a writ of habeas corpus, or any
prerogative order for the production of any person detained under Decree no.
2 (1984). Complainant argues that this law violates the African Charter on
Human and Peoples’ Rights. The Decrees were applied to detain without trial
several human rights and pro-democracy activists and opposition politicians
THE STATE PARTY’S RESPONSE AND OBSERVATIONS:
2. The government has presented no written response to this allegation, but
in oral statements before the Commission (31 March 1996, 19th Ordinary
Session, Ouagadougou, Burkina Faso, Chris Osah, Head of Delegation)
maintains that no individual is presently being denied the right to habeas
corpus in Nigeria. It has said that the provision of Decree No. 14
suspending the right to habeas corpus applies only to persons detained in
respect of state security, and was implemented only between 1993 and 1995,
during the period of political insecurity following the annulled elections
of June 1993.
3. The government acknowledges that this provision is still on the statute
books in Nigeria, but suggested that the right to habeas corpus would be
restored in the future by saying, "as the democratisation of society goes
on, all these [decrees] will become superfluous. They will have no place in
4. Communication 150/96 complains that the State Security (Detention of
Persons) Decree No. 2 of 1984, which enables a person to be detained for a
reviewable period of three months if he endangers State security, violates
Article 6 of the Charter. It also complains of the amended Decree of 1994
prohibiting the writ of habeas corpus.
5. The communication alleges that Mr. Abdul Oroh, Mr. Chima Ubani, Dr. Tunji
Abajom, Chief Frank Kokori, Dr. Fred Eno, Honourable Wale Osun and Mr.
Osagie Obayunwana were detained under this decree, without charge and also
deprived of the right to bring habeas corpus actions. The communication
alleges that they are detained in dirty, hidden, sometimes underground
security cells; denied access to medical care, to their families and
lawyers; and not permitted to have journals, newspapers and books. It is
alleged that the detainees are sometimes subjected to torture and rigorous
interrogations. The communication alleges that these conditions, combined
with the courts' inability to order the production of detained persons even
on medical grounds, places the detainees' lives in danger. The communication
alleges that these circumstances constitute inhuman and degrading punishment
6. The communication complains that the clauses ousting the jurisdiction of
the courts to consider the validity of decrees or acts taken thereunder is a
violation to the right to have one's cause heard, protected by Article
7(1)(a) and 7(1)(d) of the Charter, and undermines the independence of the
judiciary in contravention of Article 26.
7. The government has presented no response in respect of this
8. The communications allege violation of Articles 5, 6, 7 and 26 of the
9. Communication 143/95 dated 14 December 1994 and filed by the
Constitutional Rights Project, was received at the Secretariat on 2 February
10. In February 1995, the Commission was seized of the communication, and on
7 February 1995, a notification was sent to the Nigerian Government with the
attached communication asking the said Government to respond within three
11. At the 18th Session in October 1995, the communication was declared
admissible, and should be brought up by the proposed mission to Nigeria.
12. Communication 150/96 is submitted by Civil Liberties Organisation and
dated 15 January 1996. It was received at the Secretariat on 29 January
13. At the 20th session held in Grand Bay, Mauritius in 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.
14. The mission went to Nigeria from 7 to 14 March 1997 and a report was
submitted to the Commission.
15. The parties were duly notified of all the procedures.
16. Article 56 (5) of the Charter requires that a complainant exhausts local
remedies before the Commission can consider the case. Section 4 (1) of the
State Security (Detention of Persons) Decree No. 2 of 1984 states:
“(1) no suit or other proceedings shall lie against any persons for anything
done or intended to be done in pursuance of this Act.”
“Chapter IV of the Constitution of the Federal Republic of Nigeria is hereby
suspended for the purposes of this Act and any question whether any
provision thereof has been or is being or would be contravened by anything
done or proposed to be done in pursuance of this Act shall not be inquired
into in any court of law, and accordingly sections 219 and 259 of that
Constitution shall not apply in relation to any such question.”
17. In its decision on communication 129/94, the Commission accepted the
argument of complainants that the above ouster decrees create a situation in
which "it is reasonable to presume that domestic remedies will not only be
prolonged but are certain to yield no results." (ACHPR 129/94:8.)
18. 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 Division 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". On their face, ouster
clauses remove the right of courts to review decrees.
19. For these reasons, the Commission declared the communications
20. Both communications allege that the government has prohibited the
issuance by any court of the writ of habeas corpus or any prerogative order
for the production of any person detained under Decree No. 2 of 1984. Decree
No. 14 denies the right to those detained for acts "prejudicial to State
security or the economic adversity of the nation". A panel has the power to
review the detentions but this is not a judicial body and its members are
appointed by the President.
21. Article 6 of the Charter reads:
“Every individual shall have the right to liberty and security of his
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.”
22. The problem of arbitrary detention has existed for hundreds of years.
The writ of habeas corpus was developed as the response of common law to
arbitrary detention, permitting detained persons and their representatives
to challenge such detention and demand that the authority either release or
justify all imprisonment.
23. Habeas corpus has become a fundamental facet of common law legal
systems. It permits individuals to challenge their detention proactively and
collaterally, rather than waiting for the outcome of whatever legal
proceedings may be brought against them. It is especially vital in those
instances in which charges have not, or may never be, brought against the
24. Deprivation of the right to habeas corpus alone does not automatically
violate Article 6. Indeed, if Article 6 were never violated, there would be
no need for habeas corpus provisions. However, where violation of Article 6
is widespread, habeas corpus rights are essential in ensuring that
individuals' Article 6 rights are respected.
25. The question thus becomes whether the right to habeas corpus, as it has
developed in common law systems, is a necessary corollary to the protection
of Article 6 and whether its suspension thus violates this Article.
26. The African Charter should be interpreted in a culturally sensitive way,
taking into full account the differing legal traditions of Africa and
finding its expression through the laws of each country. The government has
conceded that the right to habeas corpus is important in Nigeria, and
emphasised that it will be reinstated "with the democratisation of society."
27. The importance of habeas corpus is demonstrated by the other dimensions
of communication 150/96. The government argued that no one had actually been
denied the right to habeas corpus under the Amended Decree. Communication
150/96 provides a list of such individuals who are detained without charges
in very poor conditions, some incommunicado, and are unable to challenge
their detention due to the suspension of this right. The government has
however made no specific response.
28. First of all, in accordance with its well-established precedent (See the
Commission's decisions in communications 59/91, 60/91, 64/91, 87/93 and
101/93), since the government has presented no defence or contrary evidence
that the conditions of detention are acceptable, the Commission accepts the
allegations that the conditions of detention are a violation of Article 5 of
the Charter, which prohibits inhuman and degrading treatment. The detention
of individuals without charge or trial is a clear violation of Articles 6
and 7(1)(a) and (d).
29. Furthermore, these individuals are being held incommunicado with no
access to lawyers, doctors, friends or family. Preventing a detainee access
to his lawyer clearly violates Article 7(1)(c) which provides for the “right
to defence, including the right to be defended by a counsel of his choice.”
It is also a violation of Article 18 to prevent a detainee from
communicating with his family.
30. The fact that the government refuses to release Chief Abiola despite the
order for his release on bail made by the Court of Appeal is a violation of
Article 26 which obliges States parties to ensure the independence of the
judiciary. Failing to recognise a grant of bail by the Court of Appeal
militates against the independence of the judiciary.
31. These circumstances dramatically illustrate how a deprivation of rights
under Articles 6 and 7 is compounded by the deprivation of the right to
apply for a writ of habeas corpus. Given the history of habeas corpus in the
common law to which Nigeria is an heir, and its acute relevance in modern
Nigeria, the amended Decree suspending it must be seen as a further
violation of Articles 6 and 7(1)(a) and (d).
32. The government argues that habeas corpus actions are still available to
most detainees in Nigeria, and that the right to bring habeas corpus actions
is denied only to those detained for state security reasons under Decree No.
2. While this does not create a situation as serious as when all detainees
were denied the right to challenge their detention, the limited application
of a provision does not guarantee its compatibility with the Charter. To
deny a fundamental right to a few is just as much a violation as denying it
33. The government attempts to justify Decree No. 14 with the necessity for
state security. While the Commission is sympathetic to all genuine attempts
to maintain public peace, it must note that too often extreme measures to
curtail rights simply create greater unrest. It is dangerous for the
protection of human rights for the executive branch of government to operate
without such checks as the judiciary can usefully perform.
34. Finally, as noted in the admissibility section of this decision, there
is a persistent practice of ouster clauses in Nigeria, which remove many
vital matters from the jurisdiction of the ordinary courts. A provision for
habeas corpus is not of much use without an independent judiciary to apply
it. The State Security Decree contains a clause forbidding any court from
taking up any matter arising under it. In previous decisions on ouster
clauses in Nigeria, the Commission has found that they violate Articles 7
and 26 of the Charter, the duty of the government to ensure the independence
of the judiciary (See the Commission's decisions in communications 60/91,
87/93 and 129/94).
FOR THESE REASONS, THE COMMISSION finds that there are violations of
Articles 5, 6, 7(1)(a), (c) and (d), 18 and 26 of the Charter and recommends
that the government of Nigeria brings its laws in line with the Charter.
Done at Kigali, Rwanda on 15 November 1999.