Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or the “Commission”) held Nigeria responsible for the violation of Articles 5, 6, 7, 9, 10, 12, and 14 of the African Charter on Human and Peoples’ Rights (“The Charter”). The instant case concerned the human rights violations committed against the staff of the Civil Liberties Organization (“CLO”), an NGO based in Lagos, Nigeria, that strives to educate people on their fundamental rights. The victims of the present case were subjected to torture, arbitrary detentions, and constant harassment by agents of the State Security Services (“SSS”) to prevent them from advocating for human rights within Nigeria. In this respect, the Commission ruled that the repeated persecutions, detentions, torture, and harassment suffered by CLO’s members and employees amounted to a violation of their right to freedom of expression since these offenses were used as a means to undermine and restrict their freedom of expression.
The instant case concerned the application submitted by Huri-Laws acting on behalf of the Civil Liberties Organization (“CLO”), an NGO based in Lagos, Nigeria, that strives to educate people on their human rights. The Applicant claimed that the Respondent State violated CLO’s rights under Articles 5 (Prohibition of Torture), 6 (Right to Personal Liberty and Protection from Arbitrary Arrest), 7 (Right to Fair Trial), 9 (Right to Receive Information and Free Expression), 10 (Right to Freedom of Association), 14 (Right to Property), and 26 (Duty to Guarantee Independence of Courts) of the Charter in light of the persecution and constant harassment of its members and employees. The acts of harassment and persecutions adduced by the Applicant consisted of arrests and detentions performed by agents of the SSS without informing the victims of any charges, along with the reiterated searches and raids of the organization’s premises with no judicial warrant.
At the time of the events, even though a democratically-elected government had seized power, the Nigerian Constitution established that “no legal action can be brought to challenge any 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” [para. 38]. This constitutional provision hindered any chance of the victims to challenge the ongoing arbitrary detentions and searchers they were subjected to.
On 7 November 1997, Mr. Ogaga Ifowodo, a lawyer working for the Civil Liberties Organization, was detained at the SSS’s headquarters prior to his final transfer to Ikoyi Prisons, where he remained until 1998 without ever being informed of the charges pressed against him or the duration of the detention. During his detention, Mr. Ogaga Ifowodo was tortured, isolated from his family, and denied access to medical assistance and the press, among other human rights violations. Huri-Laws filed many complaints requesting Ogaga Ifowodo’s release but to no avail.
In 1998, the Federal Military Government of Nigeria apprehended Mr. Olisa Agbakoba, founder member of CLO, pursuant to the State Security (Detention of Persons) Decree No. 2 of 1984, as amended in 1990, without ever exhausting any judicial trial or pressing criminal charges. Mr. Olisa Agbakoba was kept in detention for about five weeks without having access to any judicial remedy to question his detention. Huri-laws raised many complaints before the Federal High Court to release Mr. Olisa Agbakoba, but they were rendered ineffective by the State Security Decree, No. 2.
On 10 May 1998, Mr. Olisa Agbakoba was forced to accompany agents of the SSS to the offices of the Civil Liberties Organization to assist in searching the premises. The search was performed without a judicial warrant. The following day, CLO’s premises were searched again by agents of the SSS who seized computers, documents, files, and diskettes. All the confiscated material was further returned by the SSS agents, except for a computer.
Furthermore, agents of the SSS detained and arrested five employees of CLO, three of whom were freed the same night while Mr. Okezie Ugochukwu and Mr. Ibrahim Ismail were forced to remain in prison for two days without being informed of the charges pressed against them. Mr. Okezie Ugochukwu and Mr. Ibrahim Ismail were also subjected to illegal interrogation methods.
On 24 October 1998, Huri-Laws filed a complaint on behalf of CLO before the Commission arguing, inter alia, that the Respondent State violated Articles 5, 6, 7, 9, 10 14, and 26 of The Charter. The complaint was further declared admissible by the Commission on its 26th Ordinary Session in Kigali, Rwanda.
Having due regard to the arbitrary detentions and inhuman treatments endured by the victims, notably being held in sordid cells where they were denied access to legal counsel, medical attention, and communication with their families, the Commission ruled that “The treatment meted out to the victim, in this case, constitutes a breach of the provision of Article 5 of the Charter and the relevant international human rights instruments cited above” [para. 41]. The arbitrary arrests and detention of the victims also amounted to a violation of Article 6 of The Charter, which enshrines the right to freedom from arbitrary detention. The respondent State did not contest the Applicant’s allegations in this regard.
Once a breach of Articles 5 and 6 of The Charter was confirmed, the Commission held that the same behavior adopted by the Respondent State also amounted to a violation of Articles 9, 10, and 12 of The Charter. In this vein, the Commission stated that the arbitrary arrests and illegal searches performed by agents of the SSS attempted to undermine and restrict the victims’ right to freedom of expression, association, and movement, resulting in a violation of these human rights. Hence, even though the ability of the State Security Services to apprehend civilians and conduct searches without a warrant fell within the scope of the State Security (Detention of Persons) Decree No. 2 of 1984, such actions did not conform to the Charter, resulting in a violation of the right to freedom of expression. The Respondent State provided no contrary element in refutation of the Applicant’s allegations.
In the case of John D. Ouko v. Kenya, the Commission also stated that even when the disseminated opinions do not conform to national laws, individuals must be provided with effective judicial remedies to seek redress. In John D. Ouko v. Kenya, the government arrested and detained the victim without trial. The victim was also subjected to inhuman treatments; therefore, the Commission held Kenya responsible for violating Article 9 of The Charter.
The Commission also held that by not informing the victims of the reason behind their arrests or ever pressing charges against them, the Respondent State infringed Article 7 of The Charter. Likewise, the victims were not provided with any judicial recourse or remedy to challenge the legality of the detentions, nor were they brought before a judge to be prosecuted, resulting in a violation of their right to a fair trial under Article 26 of The Charter.
The Commission concluded that since the right to property can only be disturbed in the interest of public need, and the Respondent State never provided any justification or reason to support the many searches and raids performed at CLO’s premises by agents of the SSS, an infringement of Article 14 of The Charter was also found.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression by holding Nigeria accountable for the arbitrary arrests, illegal searches, and acts of torture performed by government officials as a means to undermine and restrict the victims’ right to freedom of expression. Even though the ability of the State Security Services to apprehend civilians and conduct searches without a warrant fell within the scope of the State Security (Detention of Persons) Decree No. 2 of 1984, the Commission held that such actions did not conform to the Charter, resulting in a violation of the right to freedom of expression.
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