Case Summary and Outcome

The Court of Justice of the Economic Community of West African States (ECOWAS Court) dismissed a case brought by the Incorporated Trustees of Media Rights Agenda (MRA), against the Federal Republic of Nigeria, considering that the plaintiff lacked legal standing to bring the action. MRA is a non-governmental organization based in Nigeria, dedicated to promoting and defending the rights to freedom of expression, media freedom, and access to information—both online and offline. It holds observer status with the African Commission on Human and Peoples’ Rights. The application arose after a series of extrajudicial killings of journalists, which the plaintiff claimed were linked to their work and their exercise of the right to freedom of expression. The incidents spanned over two decades, involving seven journalists who were murdered between 1986 and 2010. Despite the serious nature of these crimes, according to MRA, the Nigerian government allegedly failed to conduct effective investigations or hold the perpetrators accountable. The ECOWAS Court ruled that the case was inadmissible, as MRA lacked locus standi (legal standing) to bring the action. The Court stated that while the right to freedom of expression is a collective public right, which can be protected under the principle of actio popularis—where a third party is allowed to defend the rights of others—, the specific circumstances of this case did not satisfy the necessary criteria. As noted by the Court, the victims in the case were identified as specific individuals rather than an indeterminate group, which precluded the action from being pursued through an actio popularis. Moreover, the Court emphasized that MRA lacked the legal capacity to represent the victims, as it had not obtained explicit authorization from their families to do so.

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Facts

On October 19, 1986, Dele Giwa, the editor-in-chief of Newswatch magazine, was at his home when a package addressed to him was delivered. The package, bearing the seal of the President of the Federal Republic of Nigeria, was handed to Giwa by his son. Upon attempting to open it, the package exploded. Despite being rushed to the hospital, Giwa died. His death occurred under suspicious circumstances, and the incident remains unresolved. Giwa was a prominent journalist at the time, known for his work at Newswatch, one of Africa’s leading news publications.

On March 31, 1998, Bolade Fasisi, a member of the National Association of Women Journalists and former treasurer of the National Union of Journalists (NUJ), was shot and killed by three unidentified gunmen in Ibadan, Nigeria. Despite public calls for a government investigation, the motive behind the killing and the identities of the perpetrators remain unknown. No official inquiry has been conducted and the case remains unresolved.

Furthermore, on June 1, 1999, Edward Olalekan Ayo-Ojo, a journalist from the Daily Times, was found dead beside his car on a road in Lagos, Nigeria. While it was widely speculated that he may have been strangled by assailants, an autopsy failed to determine the exact cause of his death. The circumstances surrounding his death remain unclear, and no conclusive findings have been made.

On October 5, 2006, Omololu Falobi, the founder and director of Journalists Against AIDS (JAIDS) and former editor of The Punch, was shot and killed as he left his office in Lagos, Nigeria. Falobi was found dead at the steering wheel of his car, with all his belongings intact. Despite the gravity of the incident, no clear motive or suspects have been identified and the case remains unsolved.

On December 22, 2006, Godwin Agbroko, chairman of the editorial board of ThisDay Newspapers, was assassinated by unknown gunmen at approximately 10:30 p.m. while driving home from his office. During the attack, five police officers were also killed at the scene. The motive behind the killing remains unknown, and no suspects have been identified or apprehended. The case remains unsolved.

On August 17, 2008, Paul Abayomi Ogundeji, a member of the editorial board of ThisDay, was killed by unidentified gunmen around 10:30 p.m. in Dopemu, a suburb of Lagos, Nigeria. Ogundeji was ambushed while driving home. Nothing was stolen from his vehicle. This incident occurred almost two years after the murder of Godwin Agbroko. To date, Ogundeji’s killers have not been identified or apprehended and the case remains unsolved.

On April 24, 2010, Edo Sule-Ugbagwu, a judicial correspondent for The Nation newspaper, was murdered at his home in a Lagos suburb by a group of armed men at approximately 6:30 p.m. According to his younger brother, Oklahoma Ugbagwu, the assailants posed as thieves demanding money. During an argument, Edo Sule-Ugbagwu confronted them, at which point they shot him in the head. The attackers then shot Oklahoma but did not aim to kill him, fleeing the scene shortly afterward.

Considering these facts, the Incorporated Trustees of Media Rights Agenda (MRA), a Nigeria-based non-governmental organization—which holds observer status before the African Commission on Human and Peoples’ Rights—dedicated to promoting and protecting the rights to freedom of expression, media freedom, and access to information—both online and offline—, filed an application against the Federal Republic of Nigeria before the Court of Justice of the Economic Community of West African States (ECOWAS Court). It argued that, despite Nigeria’s obligations under various national, regional, and international legal instruments, the government failed to investigate, prosecute, or punish the perpetrators of the murders of the aforementioned journalists.

According to the applicant, these killings—and the failure to prevent them and investigate them—violated Article 39 of the 1999 Constitution of the Federal Republic of Nigeria, Article 66 of the ECOWAS Revised Treaty, Article 9 of the African Charter on Human and Peoples’ Rights, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and Article 19 of the Universal Declaration of Human Rights (UDHR).

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Decision Overview

Justice Ricardo Cláudio Monteiro Gonçalves delivered the unanimous judgment for the Court of Justice of the Economic Community of West African States. Two main issues were analyzed by the ECOWAS Court. The first was whether it had jurisdiction to hear the case, given that some of the alleged human rights violations occurred before the entry into force of the 2005 Supplementary Protocol A/SP.1/01/05, which granted the Court jurisdiction over human rights cases. The second was whether the applicant had legal standing to bring the case before the ECOWAS Court on behalf of the victims.

The MRA argued that Nigeria violated the human rights of several journalists by failing to protect their fundamental right to freedom of expression as enshrined in Article 39 of Nigeria’s constitution, Article 66 of the ECOWAS Revised Treaty, Article 9 of the African Charter on Human and Peoples’ Rights, Article 19 of the ICCPR, Article 19 of the UDHR, and Principle 20 of the Declaration of Principles on Freedom of Expression and Access to Information in Africa. According to the applicant, the State failed to prevent and investigate the murders of the journalist mentioned above and punish those responsible. Thus, it breached its international obligations under several human rights instruments.

For its part, Nigeria denied that it failed to protect the rights of its citizens, including journalists. The defendant argued that it is constitutionally and statutorily empowered to ensure the safety and well-being of its citizens and that it has established various agencies and bodies to protect human rights. It further refuted that it neglected its duty to investigate and prosecute those responsible for the murders of Nigerian journalists. Nigeria asserted that several investigations, press conferences, and a review by the Oputa Panel in 2001, addressed these matters. The defendant maintained that while it strives to uphold fundamental rights, these are not absolute and there are circumstances where they may be limited. Moreover, the defendant challenged the admissibility of the applicant’s evidence, claiming that the reports about the murders were based on hearsay and lacked probative value. Thereby, it considered that the MRA failed to provide sufficient evidence linking the deaths of the journalists to any actions or omissions by the Nigerian government.

The State also questioned the applicant’s locus standi (legal standing) to bring this case, asserting that it did not demonstrate any personal loss or damage.  As such, Nigeria held the case should be dismissed.

At the outset of its analysis, the ECOWAS Court—referring to Article 9 of Additional Protocol A/SP.1 /05 (which entered into force provisionally on January 19, 2005 ), Article 28 of the Vienna Convention on the Law of Treaties, and Article 14 of the United Nations International Law Commission Draft on the International Responsibility of States—highlighted the principle of non-retroactivity, which asserts that a court cannot adjudicate events that took place before jurisdictional authority was granted unless the violations are continuous.

Moreover, the ECOWAS Court cited relevant case law from the European Court of Human Rights (ECtHR) (Siljh v. Slovenia), and from the Inter-American Court of Human Rights (Gomes Lund and Others “Guerrilla Do Araguaia” v. Brazil), to underscore that only continuous violations extending beyond the date in which the jurisdictional treaty commenced could be heard.

Subsequently, the Court distinguished between instantaneous acts (violations occurring in a single specific moment) and continuous violations (ongoing infringements), by referring to the ECtHR conclusion in the case of Kopecky v. Slovakia that a court’s jurisdiction generally covers only events that occur after a State ratifies the relevant human rights convention. It further cited Becker v. Belgium, to reiterate that a court may have jurisdiction where continuous violations, that began before a treaty’s ratification, continue afterward. Similarly, the Court cited the African Court on Human and Peoples Rights’ decision in Norbert Zongo v. Burkina Faso, to emphasize the same point

In light of this, the Court held that the murders of Dele Giwa, Bolade Fasisi, and Edward Olalekan Ayo-Ojo were instantaneous acts that occurred before the Supplementary Protocol A/SP.1/01/05 entered into force. Therefore, the ECOWAS Court concluded it lacked jurisdiction to hear these cases. However, the Court noted that the murders of Omololu Falobi, Godwin Agbroko, Abayomi Ogundeji, and Edo Sule-Ugbagwu, occurred after the aforementioned protocol entered into force. Thus, the Court considered it had jurisdiction to hear the claims related to these individuals.

Next, the Court studied whether the applicant had legal standing to bring the case on behalf of the victims. It began this analysis by addressing whether the right to freedom of expression could be defended under the principle of actio popularis. This principle allows claims to be brought by any individual, or a specific group, on behalf of others, if certain conditions are met. The Court said that for this principle to apply, the right allegedly violated must be a public right, the reliefs sought must benefit the public, and the victims, “although indeterminable, must be able to be imagined or considered by the court.” [p. 35] The ECOWAS Court referred to its previous decision in The Incorporated Trustees of Laws and Rights Awareness Initiatives v. Federal Republic of Nigeria ECW/CCJ/APP/16/20 to reiterate these criteria, emphasizing that if these elements were satisfied, an action can be validly pursued even without the direct involvement of the victims themselves.

The Court acknowledged that the right to freedom of expression is fundamental for human fulfillment and essential to the functioning of a democratic society. Thus, the ECOWAS Court argued that this right is a public right of a collective nature, which allows individuals to participate in societal decisions. To the Court, the right to freedom of expression met the first requirement to benefit from the scope of protection on an actio popularis, as it applies to a generality of people and is central to a democratic system.

To the Court, the second criteria was also met, since the remedies requested by the applicant only favored the victims and were “also aimed at ensuring that murders and other forms of intimidation of journalists are not repeated, guaranteeing them safety in the exercise of their profession.” [p. 35]

Regarding the third criteria, the Court noted that in this particular case, the victims Omololu Falobi, Godwin Agbroko, Abayomi Ogundeji, and Edo Sule-Ugbagwu were specifically identified by name. As such, they were determinable, which disqualified the case from being pursued under an actio popularis lodged by a third party. Additionally, the Court found that the applicant did not have the legal capacity to bring the action on behalf of the victims since it had not obtained authorization from the victims’ families to lodge the complaint. The lack of power of attorney made it impossible for the Court to guarantee that any compensation awarded would reach the victims’ families.

Considering all these arguments, the ECOWAS Court held that the applicant did not have legal standing to bring the action. Consequently, the Court dismissed the case.

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