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SUMMARY OF FACTS
1. The Communication (herein referred to as the Communication or Complaint)
is submitted by the Socio-Economic Rights and Accountability Project (SERAP,
the Complainant) against the Government of Nigeria (the Respondent State).
Nigeria is a State Party to the African Charter on Human and Peoples' Rights,
(the African Charter) which it ratified on 22nd July 1983.
2. In the Complaint, SERAP states that the President of the Republic,
Olusegun Obasanjo in a television broadcast of 22 March 2005, alleged that
members of the Nigerian Senate and the House of Representatives took bribes
from the Federal Minister of Education in order to increase the budget for
education. That, according to the President, the Minister of Education
invited his acting Permanent Secretary and some Directors to collect money
from votes under their control to bribe some members of the National
Assembly so that the budget for the Ministry could be increased.
3. The Directors then allegedly took from the votes under their control 35
million naira, while an additional loan of 20 million naira was taken from
the National Universities Commission (NUC) to pay a bribe totalling 55
million naira to named members of the National Assembly and a member of the
Federal House of Representatives.
4. The Petitioner contends that the above is an illustration of the grand
corruption by high-level officials and that it is routine for federal
ministries to offer bribes to National Assembly members to have their budget
estimates inflated. According to the Complainant, large-scale corruption
such as the one described above has contributed to serious and massive
violations of the right to education, among other rights, in Nigeria. It
further avers that in effect, Nigeria's human rights legal obligations under
the African Charter to achieve the minimum core contents of the right to
education has been honoured more in breach than in observance, resulting in:
a. Failure of government to train the required number of teachers;
b. Gross under-funding of the nation's educational institutions;
c. Lack of motivation of teachers;
d. Non-available class room seats and pupils sitting on bare floor;
e. Non-availability of books and other teaching materials;
f. Poor curricula;
g. Poor and uninviting learning environments; h. Overcrowding;
h. Persistent strikes by teachers and staff who have not been paid; j.
Inability of supervising agencies to set and/or enforce standards;
k. Absence of infrastructure facilities.
5. The Complainant further submits that, the Nigerian Government has
deliberately failed to investigate all allegations of corruption and this
has contributed in impeding its ability to utilize Nigeria's natural
resources for the benefit of its peoples.
6. To demonstrate the gravity of the situation, the Complainant quotes the
Concluding Observations of the Committee on Economic, Social and Cultural
Rights, where the Committee held that millions of children hold odd jobs and
some who go to school are crammed in dilapidated classrooms. The poor
quality of education is attributed to the fact that teachers are not devoted
to work since their salaries do not meet their expectations. Furthermore,
that, in 1997, fees were increased in the universities which caused a brain
drain in academia because of long periods of closures, strikes etc.
THE COMPLAINT
7. The Complainant alleges violation of Articles 1, 2, 3, 17, 21, and 22 of
the African Charter on Human and Peoples' Rights.
PROCEDURE
8. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received the Communication by letter of 29 March 2005. The
Commission decided to be seized of the Communication at its 37th Ordinary
Session held in Banjul, The Gambia from 27 April to 11 May 2005.
9. On 18 May 2005 the Respondent State was informed of the seizure and it
was requested to submit its arguments on admissibility.
10. The Complainant was also informed of the seizure and requested to submit
its arguments on admissibility.
11. By a letter of 4 August 2005, the Secretariat received the Complainant's
arguments on admissibility, to which receipt of acknowledgement was sent on
25 August 2005.
12. The arguments on admissibility were also sent to the Respondent State on
25 August 2005.
13. On 14 November 2005, a letter was sent to the Respondent State party
urging it to submit its arguments on admissibility.
14. The Respondent State submitted its written observations on the
admissibility of the Communication during the 38th Ordinary Session.
15. At its 38th Ordinary Session held from the 21 November to 5 December
2005 in Banjul, The Gambia, the African Commission considered this
Communication and deferred its decision on admissibility to the 39th
Ordinary Session.
16. By a Note Verbale of 15 December 2005, the Secretariat notified the
Respondent State of this decision to defer decision on admissibility to its
39th Ordinary Session.
17. By a letter of 15 December 2005, the complainant has likewise notified.
18. At its 39th Ordinary Session held from 11th to 25th May 2006 in Banjul,
The Gambia, the African Commission considered the Communication and deferred
consideration of the same to its 40th Ordinary Session. The Commission
indicated that the Complainant's allegation of "serious and massive" human
rights violation by the Respondent State merits a hearing before the African
Commission as per the latter's established practice.
19. At its 40th Ordinary Session, the African Commission considered the
Communication and deferred its decision on admissibility to the 41st
Ordinary Session.
20. During the same Session, the Secretariat received the additional written
submissions of the Respondent State's admissibility.
21. At its 42nd Ordinary Session held in Brazzaville, Republic of Congo from
15-28 November 2007, the Commission considered the Communication and
deferred its consideration of the same to its 43rd Ordinary Session to allow
the Secretariat to draft a decision on admissibility.
22. During the same Session, the Secretariat received additional written
submissions of the Respondent State's admissibility which was forwarded to
the Complainant.
THE LAW
ADMISSIBILITY
SUBMISSIONS BY THE COMPLAINANT
23. The Complainant submits that the Communication raises prima facie
violation of the Charter and meets the conditions of admissibility in terms
of Article 56 of the Charter.
24. However, on the requirement of the exhaustion of local remedies in
accordance with Article 56(5), the Complainant is requesting the Commission
to invoke the exception rule. While admitting that local remedies have not
been attempted, the Complainant explains that such a course would have been
futile for three reasons.
25. Firstly, that there is no local recourse readily available to SERAP
because of the strict interpretation of the principle of locus standi in
Nigeria, and that exhaustion of local remedies is inapplicable where it is
impractical to seize the domestic courts due to the large number of
potential plaintiffs (Nigerian students amounting over 5 millions at the
primary, secondary and university levels) and potentially over burden the
courts resulting in unduly prolonged process.
26. Secondly, that there is no adequate or effective domestic remedies to
address the violations alleged in this Complaint since Nigerian courts do
not generally regard economic and social rights as legally enforceable human
rights. Furthermore, that there is no equivalent of the provisions of
Articles 17 and 21 of the African Charter relating to the right to education
and the right of people not to be disposed of their wealth and natural
resources under Nigeria's Constitution or legislation. For this reason
therefore, Nigerian courts will not be easily disposed to hear the matter.
27. Thirdly, that the Nigerian judiciary process is weak and cases are
unduly prolonged, making recourse to them ineffective.
SUBMISSIONS BY THE RESPONDENT STATE
28. On its part, the Respondent state submits that in Nigeria, social and
economic rights are not justiciable under the Constitution as they fall
under what may be termed the preamble of the Constitution, mapping
objectives rather than enforcing and sanctioning compliance thereof. Hence
there is no legal right that can give rise to rights of action.
29. The Respondent State further argues that, this notwithstanding, the
courts in Nigeria have creatively made socio-economic rights justiciable
where it can be shown that a denial of these principles are likely to result
in a denial of fundamental human rights guaranteed under the Constitution.
The State added that, the domestication of the African Charter by virtue of
the African Charter on Human and Peoples' Rights (Ratification and
Enforcement) Act (Chapter 10, Laws of the Federation of Nigeria 1990)
empowers the Nigerian courts to enforce or give remedies under the provision
of the African Charter. Furthermore, that the Constitution of Nigeria
contains provisions on socio-economic rights which, even though
non-justiciable, States can be held accountable by the courts if they
disregard them.
30. The State also argues that even though socio-economic rights are not
justiciable, the government has enunciated some policies and created some
institutions to address the issue, including the National Economic
Empowerment and Development Strategy (NEEDS) and the State Economic
Empowerment and Development Strategy (SEEDS). The institutions and
programmes include the National Directorate of Employment (NDE), the
National Poverty Eradication Programme (NAPEP) as well as the Small and
Medium Enterprises Development Agency (SMEDAN) respectively. It further
avers that these measures are all geared towards enhancing the peoples'
economic and social welfare generally.
31. The Respondent State further submits that the Communication should be
declared inadmissible because:
i. the Complaint does not disclose a breach of any municipal law within the
Federal Republic of Nigeria or the breach of any international treaties or
conventions to which Nigeria is a party;
ii. the factual basis for the Communication is an allegation of criminal
conduct which is currently the subject of an on-going criminal trial before
the Federal High Court in Abuja;
iii. the conduct of a few officials does not, in law and in fact, amount to
the abdication by Nigeria of her sovereign obligations to her citizens
properly covered by any municipal law or international conventions or
treaties to which Nigeria is a signatory;
iv. all the officers named by the Complainant were forced to resign from
their positions in the National Assembly and have since been defending the
prosecution case filed against them;
v. the sum of fifty-five million Naira involved in the illegal transaction
has been recovered;
vi. adequate local remedies exist in Nigeria and have been employed by the
State, and the Complainant has failed to exhaust these local remedies;
vii. the facts alleged by the Complaint are purely criminal in nature and do
not amount to an official policy by the government to deny the people of
Nigeria the "right to productive use of their resources" or their "right to
education" as alleged;
viii. the Complaint has been filed before the African Commission on the
basis of generalised statements and information obtained from unverified
sources and that there are no statistical or other information supplied in
support of these general statements; and
ix. the government has been carrying out various initiatives, including
negotiating for debt relief with the Paris Club of Creditors, to
significantly impact on the level of poverty in the country.
32. The Respondent State in its additional submission on admissibility
reiterates the fact that this Communication offends the fifth ground of
admissibility set out under Article 56 of the African Charter. Furthermore,
that Chapter 2(Sections 13 to 24) of the Nigerian Constitution of 1999 shows
the State's commitment to promotion and protection of the socio-economic
rights of its citizens.
DECISION OF THE AFRICAN COMMISSION ON ADMISSIBILITY
33. The admissibility of Communications before the African Commission is
governed by the requirements of Article 56 of the African Charter which
provides seven requirements that must be met before the African Commission
can declare a Communication admissible. If one of these requirements is not
met, the African Commission will declare the Communication inadmissible,
unless the Complainant provides justifications why any of the requirements
could not be met.
34. In the present Communication, the Complainants submit that they have
complied with all the requirements under Article 56 of the Charter, except
Article 56(5) due to the absence of local remedies. The State however argues
that the Communication does not satisfy Article 56(5) of the Charter, as
well as Article 56(2) of the Charter. The African Commission will thus deal
with the above provisions.
35. As indicated earlier, for a Communication to be declared admissible, it
must meet all the requirements under Article 56. Thus, if a party contends
that another party has not complied with any of the requirements, the
Commission must pronounce itself on the contentious issues between the
parties. However, the Commission shall also examine other requirements of
Article 56 which are not contested by the parties.
36. Article 56(1) of the African Charter provides that Communications will
be admitted if the authors indicate their identity, even if they request
anonymity. In the present case the author of this Communication is SERAP,
which is an NGO based in Lagos. The author of the Communication is thus
clearly identified.
37. Article 56(2) of the African Charter provides that a Communication must
be compatible with the Charter of the OAU or with the African Charter on
Human and Peoples' Rights. In the present Communication, the Respondent
State argues that the Communication does not comply with this requirement.
The State asserts in this regard that, the Complaint does not disclose a
breach of any municipal law within Nigeria or the breach of any
international treaties or conventions to which Nigeria is a party.
38. For a Complaint to be compatible with the Charter or the Constitutive
Act, it must prove a prima facie violation of the Charter. Compatibility
according to the Black's Law Dictionary denotes, �in compliance with �and
�in conformity with' or �not contrary to' or �against'. In this
Communication, the Complainant alleges violations of the right to education,
health and enjoyment of natural resources occasioned by the actions of the
Respondent State. These allegations do raise a prima facie violation of
human rights guaranteed in the Charter. Based on the above, the African
Commission is satisfied that Article 56(2) of the African Charter in the
present Communication has been sufficiently complied with.
39. Article 56(3) of the Charter provides that a Communication will be
admitted if it is not written in disparaging or insulting language directed
against the State concerned and its institutions or to the Organisation of
African Unity (African Union). In the present case, the Communication does
not, in the view of this Commission, contain any disparaging or insulting
language, and thus fulfils the requirement of Article 56(3).
40. Article 56(4) of the Charter provides that the Communication must not be
based exclusively on news disseminated through the mass media. This
Communication was submitted based on the testimonies given before the
Nigerian National Assembly, text statements, reports by human rights
organisations and first hand information from the Nigerian students
themselves, �'who have been directly affected by the theft of Nigeria's
natural resources.'' Thus the requirement under Article 56(4) has been fully
complied with.
41. Article 56(5) provides that Communications to be considered by the
African Commission must be sent after local remedies have been exhausted.
The Respondent State contends that the Complainant has not complied with
this requirement. The State argues that the complainant has not sought the
sufficient and effective local remedies available to them in the State,
before bringing the present Communication before the Commission. On the
other hand, the Complainant states that they could not comply with the
requirements under this article due to reasons that will be outlined below.
42. Article 56(6) provides that, Communications must be submitted within a
reasonable period from the time local remedies are exhausted, or from the
date the Commission is seized with the matter. From the wording of this
Article, time-limit commences from the date when all local remedies are
supposed to have been exhausted, and the phrase "or from the date the
Commission is seized with the matter," does not apply to the case before the
Commission because a Communication is only seized after the Complainant must
have submitted the same, and this Communication has already been seized by
the Commission. In addition, the African Charter does not expressly lay down
a clear-cut time-limit for the Complainant to submit a Complaint. In this
regard, �reasonableness' of the time limit can rightfully be assessed by
this Commission bearing in mind the circumstances of the case. The
Commission is therefore of the opinion that, the Complaint was submitted
within a reasonable time period because according to the facts herein, the
Complainant submitted when it thought it practicable to do so. Based on the
above, and the fact that this Article is not in contention with the
Respondent State, the Commission holds that Article 56(6) has been satisfied
by the Complainant.
43. Lastly, Article 56(7) provides that the Communication must not deal with
cases which have been settled by states, in accordance with the principles
of the United Nations, or the Charter of the OAU or the African Charter.
This Communication has not been settled by any of these international bodies
and thus, the requirement of Article 56(7) has been fulfilled by the
Complainant.
44. The rationale for the exhaustion of local remedies is to ensure that
before proceedings are brought before an international body, the State
concerned must have the opportunity to remedy the matter through its own
local system. This prevents the international tribunal from acting as a
court of first instance rather than as a body of last resort. [FN23]
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[FN23] See Communications 25/84, 74/92 & 83/92.
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45. Three major criteria could be deduced from the practice of the
Commission in determining compliance with this requirement, that is: the
local remedy must be available, effective and sufficient.
46. These three major criteria are clearly expressed by the Commission in
Sir Dawda K. Jawara v The Gambia. In this case, the Commission held that
�the existence of a remedy must be sufficiently certain, not only in theory
but also in practice, failing which, it will lack the requisite
accessibility and effectiveness....'[FN24]
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[FN24] See para. 32. of Communications 147/95 and 149/96
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47. The Complainant in the present Communication submit that it could not
exhaust local remedies because there are no provisions in the national laws
of Nigeria allowing them to seek remedies for the violations alleged.
48. It further avers that there was no local recourse readily available to
them, �'due to the strict interpretation of locus standi in Nigeria.''
Furthermore, that locus standi is not available in domestic courts due to
the large number of students involved.
49. It also submits that, Nigerian courts will not easily be disposed to
hear the matter because they do not enforce socio-economic rights. In
addition, there is no equivalent of Articles 17 and 21 of the African
Charter relating to the right to education and �the right of people not to
be disposed of their wealth and natural resources under Nigeria's
Constitution or legislation.'
50. Lastly, the Complainant avers that the Nigerian judiciary process is
weak and cases are unduly prolonged, making recourse to them ineffective.
51. The Respondent State on its part, submits that even though the rights
alleged to have been violated are not justiciable under the Nigerian
Constitution of 1999, the domestication of the African Charter by virtue of
the African Charter on Human and Peoples' Rights (Ratification and
Enforcement) Act (Chapter 10, Laws of the Federation of Nigeria 1990)
empowers the Nigerian courts to enforce or give remedies under the provision
of the African Charter. Furthermore, that Chapter 2(Sections 13 to 24) of
the Nigerian Constitution of 1999 portrays the State's commitment to
promotion and protection of the socio-economic rights of its citizens, and
that the government has enunciated some policies and institutions that are
aimed at protecting socio-economic rights of its citizens.
52. Considering the arguments brought by the Complainant before this
Commission, the latter is of the view that, the Complainant has failed to
prove that local remedies are not available. It is simply casting doubts
about the effectiveness and availability of the domestic remedies.
However, it is also the Commission's view that the Policies and Institutions
which have been enunciated by the government are administrative remedies and
not legal remedies. Moreover, the Respondent has not shown the potential
effectiveness of the local remedies that are alleged to exist for the
benefit of the applicants.
53. The Complainant contends that it could not exhaust local remedies due to
the strict interpretation of the principle of locus standi in Nigeria,
especially when it involves a large number of plaintiffs. The Commission
notes that, notwithstanding the strict interpretation of this rule, Nigerian
courts allow class/representative actions where numerous persons have the
same interest, right and a common grievance, and the judgement obtained is
binding on all the persons represented.
54. Section 6(6)(b) of the 1979 Constitution in Nigeria, which is the same
as Section 6(6)(b) in the 1999 Constitution provides that;
"The judicial powers vested in accordance with the foregoing provisions of
this section shall extend to all matters between persons, or between
governments or authority and to any person in Nigeria, and to all actions
and proceedings relating thereto, for the determination of any question as
to the civil rights and obligations of that person.'
55. On the basis of the above, Justice Belo of the Supreme Court of Nigeria
in the case of Abraham Adesanya v President of the Federal Republic of
Nigeria, held that;
"Section 6(6) (b) can be interpreted to mean that, standing can only be
accorded to a plaintiff who shows that his civil rights and obligations have
been or are in danger of being violated or affected by the act complained of."[FN25]
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[FN25] (1981) 2 NCLR 358
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56. The decision became a binding precedent for most class action
litigations in Nigeria, even though there were dissenting opinions on the
fact of considering Section 6(6) (b) as a test for locus standi. It was held
in NNPC v Fawehinmo for instance that;
"This section is not attended to be a catch-all, all purpose provision to be
pressed into service for determining questions ranging from locus standi to
the most uncontroversial questions of jurisdiction."[FN26]
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[FN26] (1998) 1 NWLR(pt.559) 598 at 612
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57. Supporting Justice Belo's opinion in the Adesanya case, Justice
Pats-Acholonu of the Supreme Court in Ladejobi v Oguntayo, also stated that;
"...it is dangerous to limit the opportunity for one to canvass his case by
rigid adherence to the ubiquitous principle inherent in locus standi which
is whether a person has standing in a case. The society is becoming highly
dynamic and certain stands of yester years may no longer stand in the
present state of our social and political development."[FN27]
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[FN27] (2004) All FWLR(pt. 231) 1209 at 1235-1236
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58. With the above submissions, this Commission is of the view that Nigerian
courts can properly employ the locus standi rule in class actions. The
question should not be whether it is a public or private action, but whether
the applicants sufficiently prove violation of the rights alleged and
demonstrates enough interest. For this reason, the Complainant cannot rely
on the argument that it could not exhaust local remedies due to the large
number of plaintiffs involved and the strict interpretation of the principle
of locus standi in Nigeria.
59. With respect to the Complainant's assertion that the courts in the
Respondent State are weak and ineffective, the African Commission is of the
opinion that, the Complainant is simply casting doubts about the
effectiveness of the domestic remedies.
60. The African Commission has held in Article 19 v Eritrea, that; "it is
incumbent on the Complainant to take all necessary steps to exhaust, or at
least attempt the exhaustion of local remedies," adding that; " it is not
enough for the Complainant to cast aspersions on the ability of the domestic
remedies of the State due to isolated incidences."[FN28] In the same case,
the Commission referred to the Human Rights Committee's (the Committee)
decision in A v Australia, in which the Committee held that; "mere doubts
about the effectiveness of local remedies or prospect of financial costs
involved did not absolve the author from pursuing such remedies."[FN29]
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[FN28] See Communication 275/2003, Article 19 v Eritrea, para 67
[FN29] Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993(1997)
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61. Furthermore, the Commission held in Mr. Obert Chinhamo v Zimbabwe that,
"Complainants are required to set out in their submissions the steps taken
to exhaust domestic remedies. They must provide some prima facie evidence of
an attempt to exhaust local remedies."[FN30] Thus, the Commission is of the
opinion that, by not attempting local remedies or substantiating the
weaknesses or ineffectiveness, the Complainant cannot rely on this argument
as reasons for their non exhaustion of local remedies.
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[FN30] Communication 307/2005, para 84
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62. Regardless of the fact that there is no legislation in Nigeria
domesticating the International Covenant on Economic, Social and Cultural
Rights (the ESR Covenant), the 1999 Constitution of Nigeria has certain
provisions which embody most of the rights enumerated in the ESR Covenant.
These provisions are contained in Chapter II (Sections 13-24) of the
Constitution and couched as Fundamental Objectives and Directive Principles
of State Policy.
63. Even though it can be argued that, these are not rights, but mere
Political, Economic, Social, Educational, Environmental, Cultural and
Foreign Policy Directives and that these provisions are non justiciable by
virtue of Section 6 (6) (c) of the Constitution, the African Commission is
of the view that this Chapter provides a foundation upon which economic and
social rights could be enjoyed, and its provisions indicate that the courts
are not excluded from entertaining cases relating to socio-economic rights.
64. Section 16(2) (d) for instance, requires the state to direct its policy
towards ensuring that "suitable and adequate shelter, suitable and adequate
food, reasonable national minimum living wage, old age care, pension,
unemployment, sick benefits and welfare of the disabled are provided for the
citizens." Section 20 and 21 on the other hand, require the state to protect
the environment and preserve and promote Nigerian cultures.
65. Furthermore, Nigeria is a State Party to the African Charter and has
domesticated the same. By reason of this domestication as required by
Section 12 of the 1999 Constitution, the African Charter has become part of
Nigerian Law. The African Charter therefore constitutes a normative base for
socio-economic rights claims which allow any claim brought under the Charter
to be litigated before the national courts.
66. This was substantiated in Abacha v Fawehinmi, where the Supreme Court of
Nigeria recognised the African Charter as part of Nigerian Law and that its
provisions were justiciable. In that case, the Supreme Court stated that;
"The African Charter which is incorporated into our municipal law becomes
binding and our courts must give effect to it like all other laws falling
within the judicial powers of the courts. Thus, if the individual rights
contained in the African Charter are justiciable in Nigerian courts and the
African Charter does not recognise any generational dichotomy of rights, the
articles conferring socio-economic rights are equally justiciable in the
Nigerian courts."[FN31]
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[FN31] (2000) 6 NWLR (Pt 600) 228
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67. This decision was also reflected in Ogugu v The State, where the Supreme
Court held that:
"By reason of its domestication, the African Charter has become part of
Nigeria's domestic laws and the enforcement of its provisions�falls within
the judicial powers of the courts as provided by the Constitution and all
other laws relating thereto since the African Charter is part of Nigeria's
domestic laws. Furthermore, that human and people's rights of the African
Charter are enforceable by several High Courts depending on the
circumstances of each case and in accordance with the rules, practice and
procedure of each court."[FN32]
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[FN32] (1994) 9 NWLR (pt 336) 1, 26-27
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68. In Oronto Douglas v Shell Petroleum Development Company Limited, for
instance, the Federal Government together with other oil companies,
including Shell Petroleum Development Company as the Operator, decided to
set up Nigeria's Liquefied Natural Gas Project at Bonny. This was in a bid
to harness Nigeria's huge gas resources. However, the environmental impact
assessment which is obligatory was not carried out until after the project
was underway, and a private citizen's suit, challenging this was initially
thrown out for lack of locus standi. The case was appealed and the Court of
Appeal in Nigeria upheld the justiciability of an action brought on the
basis of Article 24 of the African Charter (Ratification and Enforcement)
Act. [FN33]
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[FN33] (1999) 2 NWLR(pt 591) 466
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69. All the Nigerian cases cited above are aimed at establishing the fact
that socio-economic rights can be litigated in Nigerian Courts. Thus the
Complainant could have made attempts to utilise the local remedies available
instead of making presumptions that this Complaint would not be heard since
Nigerian courts do not generally regard economic and social rights as
legally enforceable human rights. The African Commission thus holds that,
the Complainant has not utilised the domestic remedies available and has not
demonstrated why this could not be done.
For the reasons outlined above, the African Commission declares this
Communication inadmissible.
Adopted at the 5th Extraordinary Session of the African Commission on Human
and Peoples' Rights, 21-29 July 2008, Banjul, The Gambia. |
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