23rd session: Commissioner Dankwa
24th session: Commissioner Dankwa
25th session: Commissioner Dankwa
26th Session: Commissioner Dankwa
SUMMARY OF FACTS
1. Complainant is an NGO based in the United States.
2. Complainant alleges that Mr. Charles Baridorn Wiwa a Nigerian student in
Chicago was arrested and tortured at a Nigerian Military Detention Camp in
3. Complainant alleges that Mr. Wiwa was arrested on 3 January 1996 by
unknown armed soldiers in the presence of his mother and other members of
4. It is alleged that Mr. Wiwa remained in the said Military detention camp
from 2-9 January 1996.
5. While in detention, Mr. Wiwa was horsewhipped and placed in a cell with
forty-five other detainees.
6. After Mr. Wiwa was identified as a relative of Mr. Ken Saro - Wiwa he was
subjected to various forms of torture.
7. Enclosed in the communication is medical evidence of Mr. Wiwa's physical
8. After 5 days in the detention camp in Gokana, Mr. Wiwa was transferred to
the State Intelligence Bureau (SIB) in Port Harcourt.
9. Mr. Wiwa was held from 9-11 January 1996, without access to a legal
counsel or relatives, except for a five minutes discussion with his
10. Mr. Wiwa, it is alleged was not informed of the charges against him nor
was he provided with an explanation for his prolonged detention until 11
11. On 9 January 1996, Mr. Wiwa was finally allowed to prepare a statement
in his own defence but without a legal counsel, and he did not know what to
12. On 11 January 1996, Mr. Wiwa and 21 other Ogonis were brought before the
Magistrate Court 2 in Port-Harcourt, charged with unlawful assembly in
violation of Section 70 of the Criminal Code Laws of Eastern Nigeria 1963.
13. The charging instrument states that Mr. Wiwa participated in the said
unlawful assembly on 4 January 1996 which happens to be a day after he was
14. Mr. Wiwa however was granted bail.
15. While Mr. Wiwa was out on bail some un-known people believed to be
government agents abducted him and threatened his life by forcing him into a
car in Port-Harcourt.
16. On the advice of Human rights lawyers, Mr. Wiwa fled Nigeria on 18 March
1996 to Cotonou, Republic of Benin where the UN High Commissioner for
Refugees declared him a refugee.
17. On September 17 1996, the US government granted him refugee status and
he has been residing in the United States since then.
18. The complainant alleges that the following Articles of the African
Charter on Human and Peoples' Rights have been violated: Articles 5, 6, 7
(1)(c) and 12 (1) and (2).
19. The Communication is dated 17 February 1998 and was received at the
Secretariat on 19 March 1998.
20. At its 23rd ordinary session held in Banjul, The Gambia from 20-29 April
1998, the Commission decided to be seized of this communication and to
notify the state concerned to send its comments on admissibility.
21. At its 24th ordinary session held in Banjul, The Gambia from 22 to 31
October 1998, the Commission declared the communication admissible and
invited submissions on the merits of the case during the 25th ordinary
session. The Commission also requested the Secretariat to study this
communication and communication No. 205/ 97 with a view to consolidating
22. Article 56 (5) of the Charter provides:
"Communications…shall be considered if they: are sent after exhausting local
remedies, if any, unless it is obvious that this procedure is unduly
23. The Commission declared the communication admissible on grounds that
there was lack of available and effective domestic remedies for human rights
violations in Nigeria under the military regime.
24. Relying on its precedents in communications 87/93 and 101/93, (the
former was brought on behalf of seven men sentenced to death under a Decree
which prohibits the courts from reviewing any aspect of the trial, while the
latter was brought on behalf of the Nigerian Bar Association based on a
Decree which infringed upon Nigerian lawyers' freedom of association and
also precluded the courts from hearing cases relating to the said decree)
the Commission interpreted the standard for constructive exhaustion of
domestic remedies to be satisfied where there is no adequate or effective
remedy available to the individual. In this particular case, the Commission
found that Mr. Wiwa was unable to pursue any domestic remedy following his
flight for fear of his life to the Republic of Benin and the subsequent
granting of refugee status to him by the United States of America.
25. On the issue of consolidation of the communication with No. 205/97, the
Commission decided that since it is a stage behind and since a decision on
admissibility is yet to be taken on communication 205/97, it should not,
therefore, delay decision on the merits of communication 215/98.
26. The complainant alleges that while in detention, he was horsewhipped and
subjected to various forms of torture. Article 5 of the Charter states:
"Every individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal status. All
forms of exploitation and degradation of man particularly…torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited."
27. The complainant also alleges the illegal arrest and detention of Mr.
Wiwa as being in contravention of his rights to liberty and security of
person as guaranteed under Article 6 of the Charter, which provides:
"Every individual shall have the right to liberty and the security of
person.. 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 detained."
28. It is alleged further that except for the five minutes discussion Mr.
Wiwa had with his grandfather, he was not allowed access to his relatives or
a counsel and was also neither informed of the nature of the offence nor the
reasons for his arrest and detention in violation of Article 7 (1)(c) of the
Charter, which provides:
"Every individual shall have the right to have his cause heard.
This comprises: (c) the right to defence, including the right to be defended
by counsel of his choice;"
29. In its Resolution expounding on the components of the right to fair
trial, the Commission had observed that:
"…the right to fair trial includes, among other things, the following:
(b) persons who are arrested shall be informed at the time of the arrest, in
a language which they understand of the reason for their arrest and shall be
informed promptly of any charges against them; (e) the determination of
charges against individuals, the individual shall be entitled in particular
to:… i) Have adequate time and facilities for the presentation of their
defence and to communicate in confidence with counsel of their choice."
30. The complainant alleged that he was abducted and threatened by persons
believed to be agents of the government, an action which led to his fleeing
the country for safety. He attests that his flight, as evidenced by the
granting of refugee status to him by two countries (Republic of Benin and
the U. S.) was based on well-founded fear of persecution by the Nigerian
government. He attests further that since then, he has been living in the U.
S. as a refugee. The above acts are in violation of Mr. Wiwa's rights to
freedom of movement and residence and his right to leave and to return to
his country guaranteed under Article 12(1) and (2) of the Charter, which
"(1) Every individual shall have the right to freedom of movement and
residence within the borders of a State provided he abides by the law.
(2) Every individual shall have the right to leave any country including his
own, and to return to his country. This right may only be subject to
restrictions provided for by law for the protection of national security,
law and order, public health or morality."
31. Despite invitations to the Government of Nigeria for its response to the
allegations in this communication, the Commission has received none. The
Commission is, therefore, compelled to conclude the complaint on the facts
in its possession, which are the allegations of the complainant.
FOR THE ABOVE REASONS, THE COMMISSION finds the government of Nigeria in
violation of Articles 5, 6, 7(1) (c) and 12(1) and (2) of the Charter.
Done in Kigali, Rwanda on 15 November 1999.