Case Summary and Outcome

The Community Court of Justice of the Economic Community of West African States held that blasphemy laws in Nigeria violated the fundamental right to freedom of expression guaranteed under Article 9(2) of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights. Expression Now Human Rights Initiative, a Nigerian non-governmental organization, argued that the Federal Republic of Nigeria used criminal law on blasphemy to arrest and impose the death penalty on its citizens and that it failed to prevent extra-judicial killings of citizens accused of blasphemy.  The Court found that Section 210 failed the test of legality due to its vague wording. The Court concluded that the death penalty “for abusing or insulting a religious figure is an excessive measure” and therefore found that Section 382(b) was not proportionate and necessary. The Court directed the government to repeal or amend Sections 210, 382(b), and other similar ones to bring them into conformity with international human rights law. However, the Court determined that the evidence submitted by ENHRI was insufficient to prove that the State failed to prevent extrajudicial killings of individuals accused of blasphemy.

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Facts

On October 6, 2023, Expression Now Human Rights Initiative (ENHRI), a Nigerian non-governmental organization, filed an application before the Community Court of Justice of the Economic Community of West African States (ECOWAS), challenging the constitutionality of Section 114 and Section 210 of the Nigerian Penal Code. Section 114 pertains to inciting public disturbance, while Section 210 states: 

Whoever, by any means, publicly insults or seeks to incite contempt of any religion in such a manner as to be likely to lead to a breach of peace, shall be punished with imprisonment for a term which may extend to two years or with a fine or both.

ENHRI, in its constitutional challenge, primarily cited three cases:

Yahaya Sharif-Aminu v. Attorney General: On February 23, 2020, Yahaya Sharif-Aminu recorded an audio wherein he made statements on Prophet Muhammad that were alleged to be blasphemous in nature. In his statement, Aminu stated that Prophet Muhammad is full of evil and that Inyass is superior to him, “there is no great pagan like prophet Muhhamad (PBUH), he is a complete pager, he brought an unforgivable sin to the world” and “I will not hold Prophet Muhammad (PBUH) and leave Inyass.” The audio was widely shared via a digital platform, i.e., WhatsApp. On March 20, 2020, Aminu was arrested and arraigned before the Upper Sharia Court Hausawa in Kano State of Nigeria. On August 10, 2020, the Upper Shaira Court found Aminu guilty and convicted him for blasphemy under Section 382(b) of the Kano State Sharia Penal Code Law for making remarks deemed offensive to the Prophet Muhammad.  

State v. Muhhammad Mubarak Bala: On April 28, 2020, Nigerian authorities arrested Muhammad Mubarak Bala, an atheist, on the assertions that he posted some remarks/statements on social media, i.e., Facebook, which were deemed blasphemous to a particular religion, i.e., Islam. Bala was charged under Sections 114 and 210 of the Kano State Penal Code, and after prolonged detention and trial, he pleaded guilty to the charges on April 5, 2022.  Consequently, the High Court of Kano State convicted him and sentenced him to 24 years’ imprisonment. 

Rhoda Ya’ Jatau v. State: On May 20, 2020, Nigerian authorities arrested Rhoda Ya’ Jatau, a Christian woman, for sharing a video on WhatsApp condemning the lynching of Deborah Emmanuel Yakubu, a Nigerian university student who was murdered and set on fire by a mob of her classmates in May 2022 for sharing her Christian faith.  Jatau was charged under Sections 114 and 210 of the Kano State Penal Code.  On December 20, 2024, the High Court in Bauchi acquitted Jatau on the alleged charges of blasphemy,  on the grounds of lack of evidence. 

Between 2016 and 2023, several other individuals, including Christian preacher Eunice Olawale, student Deborah Yakubu Samuel, trader Bridget Agbahime, and butcher Usman Buda, were killed extrajudicially after being accused of blasphemy.  In each case, the perpetrators were either not prosecuted or were discharged. 

On September 24, 2024, the Court held a virtual hearing where procedural motions were granted, both parties presented arguments, and the case was adjourned for judgment.

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Decision Overview

Justice Ricardo Cláudio Monteiro Goncalves, Presiding Judge of the Community Court of Justice of the Economic Community of West African States (ECOWAS), unanimously delivered the judgment of the Court comprising himself, Justice Dupe Atoki, and Justice Edward Amoako Asante. The central issue before the Court was whether Nigeria violated freedom of expression by using criminal provisions (Sections 210 and 382(b) of the Criminal Code) on blasphemy to arrest citizens and by failing to prevent extra-judicial killings of citizens accused of blasphemy.

ENHRI contended that the government of Nigeria violated the right to freedom of expression, freedom of religion, and the right to life by failing to prevent extra-judicial killings of persons accused of committing blasphemy. They argued that government’s use of blasphemy laws to imprison its citizens and impose death sentence on them violated various provisions of the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and other forms of Cruel, Inhuman or Degrading Treatment, and other international human rights instruments. They challenged the “excessive, disproportionate and unnecessary” nature of Sections 382(b) and 210, seeking their immediate repeal or amendment. [para. 33]

On the other hand, the Federal Republic of Nigeria urged that the blasphemy laws in question are enacted by individual states, not the federal government, and were in place before prosecutions of individuals like Yahaya Shariff Aminu, Mubarak Bala, and Rhoda Jatau. It emphasized that Nigeria maintains judicial and administrative mechanisms, including the National Human Rights Commission, to protect human rights. It maintained that Sections 382(b) and 210 were not contrary to the Nigerian Constitution or the ACHPR.

The Court, firstly, examined whether the case was admissible under Article 10(d) [individual’s application on violation of fundamental rights] of the Court’s Protocol and considered whether the application satisfied the requirements of the actio popularis principle, that is, whether it was brought in the public interest by NGOs or public-spirited individuals to highlight human rights violations. This principle requires the fulfillment of three conditions: there must be a violation of public rights rather than merely private rights, or if a private right is involved, its violation must affect the public at large; the relief sought must be for the public benefit; and the victims must be indeterminate. The Court found that the right to freedom of religion under Article 8 of the ACHPR and the right to life under Article 4 of the ACHPR are private rights, i.e., they are individual, where the harm is suffered personally and cannot be attributed to the public at large. However, it held that the right to freedom of expression under Article 9 of the ACHPR constitutes a public right, since “the dissemination and receipt of information is a matter of public interest” [para. 60].

With regard to the second condition, the Court struck out one of the reliefs requested by ENHRI on the basis that it was not for the public benefit. As for the third condition, although some victims were named in the application, the Court found that they were merely illustrative examples and concluded that “violations of the freedom of expression affect the society as a whole, and when individuals in the society cannot express themselves freely, either for fear of imprisonment or fear of death, then everyone in the society becomes a victim” [para. 75]. On this basis, the Court proceeded to hear the freedom of expression claim on its merits.

The Court examined whether Section 210 of the Penal Code Law of Kano State and Section 382(b) of the Kano State Sharia Penal Code Law were incompatible with Article 9 of ACHPR, which guarantees freedom of expression. The Court noted that “the right to freedom of expression is not absolute” [para. 99] and can be subject to certain restrictions as laid down in Article 27(2) of ACHPR and Article 19 of ICCPR.  The Court recognised that for any limitation on freedom of expression to be valid, it must be prescribed by law, serve a legitimate aim, and be necessary and proportionate. The Court noted that the law should not be arbitrary and clearly indicate what it prohibits without conferring a broad discretion on law enforcement agencies. Based on Association Des Blogueurs De Guinee v. Guinea and The Incorporated Trustees of Laws and Rights Awareness Initiatives v. Federal Republic of Nigeria, the Court noted that the limitation must “originate from a pressing and substantial need”, “have a direct and immediate connection the expression”, “be the least restrictive means” and benefits should outweigh the harm caused to the disclosure of information. [para. 105]

Concerning Section 210, the Court accepted that the limitation was provided by domestic law. The Court noted that the law aimed to prevent “breakdown of law”, “breakdown of public order” and to maintain “collective security” which might be disturbed in cases of inciting contempt of any religion, and that it is a legitimate objective. [para. 109-110] However, the Court found that the provision failed the test of legality due to its vague wording. The phrase “in such a manner as to be likely to lead to a breach of peace” was found to be imprecise, granting “broad discretion to law enforcement agencies” and failing to define clearly what conduct was prohibited. [para. 113] The Court concluded that Section 210 failed the test of legality and therefore was incompatible with Article 9(2) of the ACHPR and Article 19 of the ICCPR.

Turning to Section 382(b), the Court found that the limitation was provided by law. According to the Court, Section 382(b) pursued a legitimate aim of maintaining public peace and preventing motivated violence in a “deeply religious society.” [para. 119] The Court noted the potential of blasphemy laws in preventing “religious motivated violence by discouraging inflammatory speech that provokes riots or communal strife.” [para. 119] The Court stated that blasphemy laws can be “necessary for stability, promoting respect between religious groups by discouraging offensive statements that could fuel sectarian tension.” [para. 119] Further, the Court determined that Section 382(b) is “clear, unambiguous, and precise as to the conduct that it proscribes” and therefore satisfied the test of legality. [para. 125]

The Court scrutinized whether the death penalty imposed by Section 382(b) was necessary and proportionate. On this point, the Court stated that “blasphemy is an offense against religious sentiments, not a crime that causes physical harm to individuals,” and that “insulting someone is a verbal offense, not a violent crime.” [para. 127] It observed that the death penalty is typically reserved for crimes like “murder, terrorism, or genocide where there is a clear victim who has suffered grave harm, not speech or disrespect.” [para. 128] The Court concluded that the death penalty “for abusing or insulting a religious figure is an excessive measure” and therefore found that Section 382(b) was not proportionate and necessary. [para. 129] The Court concluded that Section 382(b) violated Article 9(2) of the ACHPR and Article 19 of the ICCPR.

Regarding the ENHRI’s second contention, the Court found that the evidence submitted was insufficient to prove the State’s failure to prevent extrajudicial killings of individuals accused of blasphemy violated freedom of expression. It held that newspaper articles alone were not adequate to prove the allegations and that no corroborating documentation or testimony was presented. Consequently, the Court concluded that it could not find a violation of freedom of expression on this basis.

In conclusion, the Court found that Section 210 of the Penal Code Law of Kano State and Section 382(b) of the Kano State Sharia Penal Code Law violated Article 9(2) of the ACHPR and Article 19 of the ICCPR. The Court directed the Nigerian government to repeal or amend these provisions and other similar ones to bring them into conformity with international human rights law.

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