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
||Constitutional Rights Project v.
Nig., Comm. 148/96, 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 263 (2002); Documents of the African Commission on Human and
Peoples’ Rights, Vol. 2, at 159 (Malcolm D. Evans & Rachel Murray
eds., 2009); (2000) AHRLR 241 (ACHPR 1999)
19th Session: Commissioner Dankwa
20th Session: Commissioner Dankwa
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22ndSession Commissioner Dankwa
23rd Session : Commissioner Dankwa
24th Session : Commissioner Dankwa
25th Session : Commissioner Dankwa
26th Session : Commissioner Dankwa
SUMMARY OF FACTS
1. The communication concerns 11 soldiers of the Nigerian army: WO1 Samson
Elo, WO2 Jomu James, Ex. WO2 David Umukoro, Sat. Gartue Ortoo, LCPI Pullen
Blacky, Ex LCPI Lucky Iviero, PVT Fakolade Taiwo, PVT Adelabi Ojejide, PVT
Chris Miebi, Ex PVT Otem Anang, and WO2 Austin Ogbeowe. They were arrested
in April 1990 on suspicion of being part of a coup plot and were tried
twice, once in 1990 and once in 1991. They were found innocent on both
occasions but still have not been freed. On 31 October 1991 they were
granted state pardon by the then-Armed Forces Ruling Council. However, they
continue to be held at Kirikiri Prison under terrible conditions. The
complaint argues that there are no further domestic remedies available,
since the jurisdiction of the courts over the matter has now been ousted by
2. The communication alleges violation of Article 6 of the Charter.
3. The communication is dated 22 August 1995 and was received at the
Secretariat on 18 September 1995.
4. At the 20th session held in Grand Bay, Mauritius, the Commission declared
the communication admissible, and decided that it would be taken up with the
relevant authorities by the planned mission to Nigeria. The mission was
undertaken between 7 and 14 March 1997 and the report was submitted to the
5. The parties were kept informed of all the procedures.
6. Article 56 of the Charter reads:
"Communications... shall be considered if they:
5) Are sent after exhausting local remedies, if any, unless it is obvious
that this procedure is unduly prolonged."
7. This is just one of the seven conditions specified by Article 56, but it
is the one that usually requires the most attention. Because Article 56 is
necessarily the first considered by the Commission, before any substantive
consideration of communications, it has already been the subject of
substantial interpretation; in the jurisprudence of the African Commission,
there are several important precedents.
8. Specifically, in the four decisions the Commission has already taken
concerning Nigeria, Article 56 (5) is analysed 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.
9. 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).
10. In all of the cases cited above, the Commission found that the ouster
clauses render local remedies non-existent or ineffective. 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 Division have occasionally
found that they have jurisdiction. For instance, in 1995 the Court of
Appeal, Lagos Division, relying on common law, concluded that courts should
examine some decrees notwithstanding ouster clauses, where the decree is
"offensive and utterly hostile to rationality". But this decision has not
been followed by any subsequent case.
11. In the instant communication, the jurisdiction of the courts was ousted.
Thus, no matter how meritorious the victims' case for freedom may be, it
cannot be entertained by the courts. Accordingly, the case was declared
12. Article 6 of the African Charter provides:
“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.”
13. The government has not disputed any of the facts as presented by
Constitutional Rights Project.
14. The African Commission, in several previous decisions, has set out the
principle that where allegations of human rights abuses go uncontested by
the government concerned, especially after repeated notification, the
Commission must decide on the facts provided by the complainant and treat
those facts as given [FN1].
[FN1] See the Commission's decisions on communications 59/91- Embga Mekong
Louis vs. Cameroon, 60/91- Constitutional Rights Project vs. Nigeria (in
respect of Wahab Akamu, G. Adega and oers, 64/91 – Krishna Achuthan (on
behalf of Aleke Banda), 87/93- Constitutional Rights Project vs. Nigeria (
in respect of Zamani Lekwot and 6 oers) vs. Nigeria and 101/93 - Civil
Liberties Organisation ( in respect of the Nigerian Bar Association) vs.
15. As the government has offered no other explanation for the detention of
the 11 soldiers, the Commission has to assume that they are still being
detained for the acts for which they were found innocent in two previous
trials. This is a clear violation of Article 6, and shows disrespect by the
Nigerian government for the judgements of its own courts.
16. Later, (although it was unnecessary because they were found innocent of
any crime), the soldiers were granted state pardons, but still not freed.
This constitutes a further violation of Article 6 of the Charter.
FOR THESE REASONS, THE COMMISSION finds that Article 6 of the African
Charter has been violated; urges the Government of Nigeria to respect the
judgements of its courts and free the 11 soldiers.
Done in Kigali, Rwanda on 15 November 1999.