24th Session: Commissioner Pityana
25th Session: Commissioner Pityana
26th Session: Commissioner Pityana
27th Session: Commissioner Pityana
28th Session: Commissioner Pityana
29th Session: Commissioner Pityana
SUMMARY OF FACTS
1. The authors of the communication are three NGOs based in Nigeria with
observer status with the African Commission. Nigeria is a State Party to the
African Charter on Human and Peoples' Rights.
2. The Communication was received on 3rd August 1998.
3. The authors allege a violation of the African Charter in that
i) An unfair trial in respect of the trial and conviction of Lt. Gen.
Oladipo Diya and four other soldiers and a civilian;
ii) The above mentioned victims were convicted and sentenced to death by a
Special Military Tribunal for an alleged coup plot to overthrow the Nigerian
Military Government under Gen. Sani Abacha;
4. It is alleged that on December 21st 1997, the Nigerian Military
Government announced that it had uncovered a coup plot. Following this, 26
persons were arrested including Lt. Gen. Oladipo Diya, Major General
Abdukadir Adisa, Lt. Gen. Olarenwaju, Col. Akintonde and Professor Odekunle.
5. It is also alleged that in January 1998, the Nigerian Military government
set up a Military Panel of Inquiry to investigate the alleged coup plot.
Before the trial, the government displayed to a selected audience,
videotapes of supposed confessions by the suspects.
6. On 14th February 1998, a Special Military Tribunal was constituted.
Members of the tribunal included serving judges, but the Chairman is a
member of the Provisional Ruling Council (PRC).
7. The decision of the tribunal is not subject to appeal, but confirmation
by the PRC, the members of which are exclusively members of the armed
8. The Tribunal concluded its proceedings in early April 1998 and on 28th
April 1998, announced the conviction and sentencing to death of six of the
accused, including the five persons mentioned above.
9. The authors contend that the arrest, detention, arraignment and trial of
the convicted and sentenced persons was unlawful, unfair and unjust and as
such a violation of the provisions of the African Charter on Human and
10. The communication alleges that the following Articles of the African
Charter on Human and Peoples' Rights have been violated: Articles 4, 5, 6,
7, and 26.
11. At the 24th ordinary session, the Commission considered the
communication and decided to be seized of it.
12. On 26th November 1998, letters were sent to the parties involved
informing them of the Commission's decision.
13. At its 25th ordinary session held in Bujumbura, Burundi, the Commission
requested the Secretariat to give its opinion on the effect of article 56(7)
of the Charter in view of the political developments in Nigeria, and
postponed consideration on admissibility to the 26th ordinary session.
14. On 13th May 1999, the Secretariat of the Commission dispatched letters
to all the parties notifying them of this decision.
15. At its 26th ordinary session held in Kigali, Rwanda, the Commission
declared the communication admissible in line with the recommendation of the
Secretariat and requested parties to submit arguments on the merits of the
16. By separate letters dated 17th January 2000, all the parties were
informed of the decision.
17. On 17th February 2000, the Secretariat received a Note Verbale from the
High Commission of the Federal Republic of Nigeria in Banjul, requesting the
Commission to forward the following documents to the country's competent
authorities to enable them prepare appropriate responses to the alleged
(a) The Draft Agenda for the 27th ordinary session and the letter of
invitation to the said session;
(b) A copy of the complaint that was attached to the Secretariat's Note; and
(c) A copy of the Report of the 26th ordinary session
18. Further to the above request, the Secretariat of the Commission on 8th
March 2000, forwarded all the documents requested, except the Report of the
26th ordinary session, together with a copy of the summary and status of all
communications filed against Nigeria which were pending before the
Commission during the 26th ordinary session, a copy each of the three
communications (Nos. 218/98, 224/98 and 225/98) as submitted by their
authors, and a copy of the written response of Media Rights Agenda on the
merits of communication 224/98.
19. At its 27th Ordinary Session held in Algiers, Algeria, the Commission
found a violation of Article 7 of the Charter and requested the Government
of Nigeria to compensate the victims accordingly.
20. At its 28th Ordinary Session held in Cotonou, Benin, the rapporteur
noted that although a decision had been taken at the 27th Ordinary Session,
some amendments were necessary in order to reflect the peculiar nature of
trials of soldiers by military tribunals. He undertook to continue working
on the case and the matter was deferred to the 29th Ordinary Session.
21. At its 25th ordinary session held in Bujumbura, Burundi, the Commission
requested the Secretariat to give an opinion on the effect of Article 56(7)
of the Charter in view of the changing political and constitutional
situation in Nigeria. Relying on the case law of the Commission, the
Secretariat submitted that based on the well established principle of
international law, a new government inherits its predecessor's obligations,
including responsibility for the previous government's misdeeds (see Krishna
Achutan and Amnesty International / Malawi, communications 62/92, 68/92 and
22. The Commission has always dealt with communications by deciding upon the
facts alleged at the time of submission of the communication (see
communications 27/89, 46/91 and 99/93). Therefore, even if the situation has
improved, such as leading to the release of the detainees, repealing of the
offensive laws and tackling of impunity, the position still remains that the
responsibility of the present government of Nigeria would still be engaged
for acts of human rights violations which were perpetrated by its
23. It was noted that although Nigeria was under a democratically elected
government, section 6(6)(d) of the Constitution provides that no legal
action can be brought to challenge Ďany existing law made on or after 15th
January 1966 for determining any issue or question as to the competence of
any authority or person to make any such law'. This means that there is no
recourse within the Nigerian legal system for challenging the legality of
any unjust laws.
For the above reasons, and also for the fact that, as alleged, there were no
avenues for exhausting local remedies, the Commission declared the
24. In interpreting and applying the Charter, the Commission relies on the
growing body of legal precedents established in its decisions over a period
of nearly fifteen years. The Commission is also enjoined by the Charter and
international human rights standards which include decisions and general
comments by the UN treaty bodies (Article 60). It may also have regard to
principles of law laid down by State Parties to the Charter and African
practices consistent with international human rights norms and standards
(Article 61). In this matter, the Charter is silent on its application to
military courts or tribunals.
25. The issues brought before the Commission have to be judged in the
environment of a military junta and serving military officers accused of
offences punishable in terms of military discipline in any jurisdiction.
This caution has to be applied especially as pertaining to serving military
officers. The civilian accused is part of the common conspiracy and as such
it is reasonable that he be charged with his military co-accused in the same
judicial process [FN1]. We are making this decision conscious of the fact
that Africa continues to have military regimes who are inclined to suspend
the constitution, govern by decree and seek to oust the application of
international obligations. Such was the case in Nigeria under Military
strongman Sani Abacha.
[FN1] In General Comment No 13 (XXI/1984) para.4 the UN Human Rights
Committee argues that "While the Covenant does not prohibit such categories
of courts (military or special courts which try civilians), nevertheless the
conditions which it lays down clearly indicate that the trying of civilians
by such courts should be very exceptional and take place under conditions
which genuinely afford the full guarantees stipulated in article 14."
26. We believe that this decision must indicate the durability of the norms
prescribed by the Charter and the duties on whatever system of governance
may be in place, to abide by the international norms as well as duties
established in international human rights law. It must be clearly understood
that the military tribunal here is one under an undemocratic military
regime. In other words, the authority of the executive and the legislature
has been subsumed under the military rule. Far from this suggesting that
military rulers have carte blanche to govern at the whim of a gun, we wish
to underscore the fact that the laws of human rights, justice and fairness
must still prevail [FN2].
[FN2] In Communications No: 137/94, 139/94, 154/96 and 161/97 International
PEN, Constitutional Rights Project, and Civil Liberties Organisation,
Interights on behalf of Ken Saro-Wiwa, Jr/Nigeria, the Commission found that
trials held under the Civil Disturbances (Special Tribunals) Decree No 2 of
1987 were in violation of the Charter in that the judgements of the
tribunals were not subject to appeal but had to be confirmed by the
Provisional Ruling Council, the members of which were military officers. The
decree effectively ousts the jurisdiction of the ordinary courts and as such
they had no access to a competent, independent, fair and impartial court
(vide Compilation; ibid; paras 89-101)
27. It is our view that the provisions of Article 7 should be considered
non-derogable providing as they do the minimum protection to citizens and
military officers alike especially under an unaccountable, undemocratic
military regime. The Human Rights Committee in its General Comment No 13
states that Article 14 of the ICCPR applies to all courts and tribunals
whether specialised or ordinary. The Committee went on to note the existence
of military or special courts in many jurisdictions which, nonetheless, try
civilians. It is noted that this could present serious problems as far as
equitable, impartial and independent administration of justice is concerned.
Such courts are resorted to in order to justify recourse to exceptional
measures which do not comply with normal procedures. The European Commission
has ruled that the purpose of requiring that courts be "established by law" is that the organisation of justice must not depend on the discretion of the
Executive, but must be regulated by laws emanating from parliament. The
military tribunals are not negated by the mere fact of being presided over
by military officers. The critical factor is whether the process is fair,
just and impartial.
28. It is alleged that in contravention of Article 7(1)(c) of the Charter,
the convicted persons were not given the opportunity to be represented and
defended by counsel of their choice, but rather that junior military lawyers
were assigned to them and their objections were overruled. The fairness of
the trial is critical if justice is to be done. For that especially in
serious cases, which carry the death penalty, the accused should be
represented by a lawyer of his choice. The purpose of this provision is to
ensure that the accused has confidence in his legal counsel. Failure to
provide for this may expose the accused to a situation where they will not
be able to give full instructions to their counsel for lack of confidence.
29. Besides, it is desirable that in cases where the accused are unable to
afford legal counsel, that they be represented by counsel at state expense.
Even in such cases, the accused should be able to choose out of a list the
preferred independent counsel "not acting under the instructions of
government but responsible only to the accused". The Human Rights Committee
also prescribes that the accused person must be able to consult with his
lawyer in conditions which ensure confidentiality of their communications.
Lawyers should be able to counsel and to represent their clients in
accordance with established professional standards without any restrictions,
influences, pressures or undue interference from any quarter (Burgos v
Uruguay and Estrella v Uruguay).
30. The right to fair trial is essential for the protection of all other
fundamental rights and freedoms. In its Resolution on the Right to Recourse
Procedure and Fair Trial, the Commission has observed that the right to fair
trial includes, among other things, that:
a) In the determination of charges against individuals, the individual shall
be entitled in particular to: (i) have adequate time and facilities for the
preparation of their defence and to communicate in confidence with counsel
of their choice.
31. The assignment of military lawyers to accused persons is capable of
exposing the victims to a situation of not being able to communicate, in
confidence, with counsel of their choice. The Commission therefore finds the
assignment of military counsel to the accused persons, despite their
objections, and especially in a criminal proceeding which carries the
ultimate punishment a breach of Article 7(1)(c) of the Charter (vide the Ken
Saro-Wiwa decision cited above).
32. The communication alleges that under the military rule, the decision of
the military tribunal is not subject to appeal, but may be confirmed by the
Provisional Ruling Council. The PRC in this instance arrogates to itself the
role of Complainant, prosecutor and judge in its own cause. This, it
alleged, is a violation of Article 7(1)(a) of the Charter.
Article 7 (1)(a) of the Charter provides:
Every individual shall have the right to have his cause heard. This
comprises: (a) the right to appeal to competent national organs against acts
violating his fundamental rights as recognised and guaranteed by
conventions, laws, regulations and customs in force.
33. The foreclosure of any avenue of appeal to competent national organs in
a criminal case attracting punishment as severe as the death penalty clearly
violates the said Article. It also falls short of the standard stipulated in
paragraph 6 of the UN Safeguards Guaranteeing Protection of the Rights of
Those Facing the Death Penalty, to wit:
Any one sentenced to death shall have the right to appeal to the court of
higher jurisdiction, and steps should be taken to ensure that such appeals
shall become mandatory.
34. Article 6(4) of the ICCPR also makes provision for this protection. In a
case against Nicaragua in 1986, the Inter-American Commission of Human
Rights (IACHR) stated that "the existence of a higher tribunal necessarily
implies a re-examination of the facts presented in the lower court" and that
the omission of the opportunity for such an appeal deprives defendants of
due process. In other words, a higher threshold of rights is intended for
those who are charged with crimes the sentence of which might be the death
penalty (vide: ACHPR Communications 60/91 and 87/93 Constitutional Rights
35. The communication further alleges that except for the opening and
closing ceremonies, the trial was conducted in camera in contravention of
Article 7 of the Charter. The Charter does not specifically mention the
right to public trials; neither does its Resolution on the Right to Recourse
Procedure and Fair Trial. Mindful of developments in international human
rights law and practice, and drawing especially from General Comment of the
Human Rights Committee to the effect that "the publicity of the hearings is
an important safeguard in the interest of the individual and of society at
large..., apart from exceptional circumstances, the Committee considers that a
hearing must be open to the public in general, including members of the
press, and must not, for instance, be limited only to a particular category
[FN3] UN Human Rights Committee General Comment No 13 (XXI/1984) para 6.
36. The publicity of hearings is an important safeguard in the interest of
the individual and the society at large. At the same time article 14,
paragraph 1 acknowledges that courts have the power to exclude all or parts
of the public for reasons spelt out in that paragraph. It should be noted
that, apart from such exceptional circumstances, the UN Human Rights
Committee considers that a hearing must be open to the public in general,
including members of the press, and must not, for instance, be limited only
to a particular category of persons.
37. In Le Compte, van Leuven & de Meyere v Belgium, the European Commission
held that there is no public hearing unless the court dealing with the
matter holds its proceedings in public both when considering the facts and
when deciding on the law. While it may be acceptable in certain
circumstances for the hearing to be held in camera, the proceedings should
remain fair and in the interests of the parties. While there may be
circumstances where a trial in camera may be held, for example, where the
identity of the accused or the safety of witnesses need to be protected,
this does not prescribe a right but is subject to the discretion of the
38. Article 14 of ICCPR explains that the trial should also guarantee the
right of the accused "to examine or have examined the witnesses against him
and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him." Where the trial is held
in camera, there can be no independent demonstration that these requirements
have been met.
39. The State party has not shown that the holding of the proceedings in
secret was within the parameters of the exceptional circumstances
contemplated above. The Commission therefore finds this a violation of the
victims' right to fair hearing guaranteed under Article 7 of the Charter.
40. Article 7(1)(b) stipulates that
Every individual shall have the right to have his cause heard. This
(b) the right to be presumed innocent until proven guilty by a competent
court or tribunal.
The presumption of innocence is universally recognised. With it is also the
right to silence. This means that no accused should be required to testify
against himself or to incriminate himself or be required to make a
confession under duress (Article 6(2) and 14(3)(g) of ICCPR).
41. In Krause v Switzerland the European Commission noted that this
principle constituted a fundamental principle, which protects everybody
against being treated by public officials as if they were guilty of an
offence even before such guilt is established by a competent court. It has
been alleged that videotapes show the accused making confession before other
military officials. It is suggested that the officials affirmed the guilt of
the accused on the basis of the "confessions". No evidence was led showing
that these were the same officials who presided or participated in the
Military Tribunal that tried them. The alleged tapes were not presented to
the Commission as evidence. In the circumstances, the Commission cannot make
a finding on hearsay evidence. We cannot therefore find that the right to
presumption of innocence has been violated.
42. The communication alleges that the trial, conviction and sentence of
civilians (as at the time of filing of the complaint, one civilian was
convicted and sentenced to death) by the tribunal, composed of military
personnel as judges, was a breach of Article 7 of the Charter. The
Commission is not convinced that in the circumstances of this case, it was
possible to have a separation of trials nor has it been alleged that the
civilian accused applied for such separation. It may well be that the cause
of justice would not have been served by such a separation. In the
circumstances and in this respect, we are not in a position to find a
violation Article 7(1)(d) of the Charter.
43. The communication alleges that the composition of the tribunal which was
presided over by a serving military officer did not meet the requirement of
an independent and impartial judicial panel to try the accused, and
therefore a violation of Article 7(1)(d) of the Charter.
Article 7(1)(d) of the Charter provides:
Every individual shall have the right to have his cause heard. This
(d) The right to be tried within a reasonable time by an impartial court or
44. It has been stated elsewhere in this decision, that a military tribunal
per se is not offensive to the rights in the Charter nor does it imply an
unfair or unjust process. We make the point that Military Tribunals must be
subject to the same requirements of fairness, openness, and justice,
independence, and due process as any other process. What causes offence is
failure to observe basic or fundamental standards that would ensure
fairness. As that matter has been dealt with above, it is not necessary to
find that a tribunal presided over by a military officer is a violation of
the Charter. It has already been pointed out that the military tribunal
fails the independence test.
45. The Complainant alleges a violation of Articles 5 and 6 of the Charter.
No details of the specific elements which constitute such claims are made in
the complaint. In the absence of such information, the Commission cannot
find a violation as alleged.
FOR THE ABOVE REASONS, THE COMMISSION
Finds violation of Articles 7(1)(a), (c) of the Charter
Urges the Government of the Federal Republic of Nigeria to bring its laws in
conformity with the Charter by repealing the offending Decree.
Requests the Government of the Federal Republic of Nigeria to compensate the
victims as appropriate.
Done at the 29th Ordinary Session held in Tripoli, Libya, from 23rd April to
7th May 2001.