Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or “the Commission”) held that by trying and ultimately sentencing Mr. Kenule Beeson Saro-Wiwa to death for peacefully expressing his views, Nigeria violated his right to express and disseminate his opinion. Mr. Saro-Wiwa was an Ogoni activist who was arrested, tried, and sentenced to death after his participation in a rally where he and others disseminated information and opinions about the rights of people living in Ogoniland, an oil-producing area in Nigeria. The Commission held that in the present case a violation of the right to freedom of expression also implied a violation of the freedom of assembly and the freedom of association due to the close relationship these rights share. In addition to Article 9.2, the African Commission held that Nigeria violated Articles 1, 4, 5, 6, 10.1, 11, 16, and 26 in relation to diverse facts of the case, including the detention, trial, and execution of Mr. Saro-Wiwa, the detention of several victims under the State Security (Detention of Persons) Act of 1984 and its Amended Decree No. 14 of 1994, the establishment of the Civil Disturbances Tribunal and the failure to institute provisional measures in defiance of previous decisions from the Commission.
Mr. Kenule Beeson Saro-Wiwa was an Ogoni activist and writer who presided over the Movement for the Survival of the Ogoni People (MOSOP) at the time of the events. Following the murder of four Ogoni leaders on 21 May 1994, during riots that broke out in a public meeting organized by MOSOP calling for the rights of the people living in the oil-producing areas of Ogoniland, Ken Saro-Wiwa, and several hundred other people were arrested. The arrest of Ken Saro-Wiwa took place on 22 May 1994. The vice president of MOSOP, Ledum Mitee, was arrested sometime later. Communications 137/94 and 139/94 allege that Mr. Saro-Wiwa was severely beaten during the first few days of his detention and that he remained chained (arms and legs) for several days. He was denied access to his lawyer and the medication he needed for his high blood pressure and was held in poor conditions. After some time, even family visits were not allowed.
On 9 September 1994, the Constitutional Rights Project (CRP) submitted a communication including a list of 16 other Ogonis detained during the same period without charge or bail for more than three months. Both communications alleged that Mr. Saro-Wiwa was detained because of his political activities in connection with MOSOP. He had already been imprisoned at least five times before, each time for short periods from early 1993, and then released without charge, except once, in mid-1993, when he was detained for several weeks and charged with unlawful assembly.
Although the Military Administrator stated that Ken Saro-Wiwa and his co-defendants had incited MOSOP members to kill four rival Ogoni leaders, no charges were filed until 28 January 1995. During the months between the arrest and the start of the trial, “the defendants were not allowed to meet with their lawyers, and no information on the charges was provided to the defence”. [para. 4] In August 1994, the Rivers State Administrator’s Counsel argued that the case fell under the exclusive jurisdiction of the Rivers State High Court, as the offence had been committed in Rivers State. However, in February 1995, the trial began before a court set up under the Civil Disturbance Act whose three judges were directly appointed by General Sani Abacha, then military head of state, in November 1994.
In June 1995, in a supplementary submission, the CRP alleged several irregularities during the trial, including harassment of counsel, the presence of an army officer at supposedly confidential meetings between the defendants and their counsel, “bribery of witnesses, and evidence of bias on the part of the court members themselves.” [para. 6] Similarly, International PEN sent the Commission a copy of its letter sent to General Sani Abacha “protesting the lack of hard evidence and the conduct of the trial.” [para. 6]
On November 2, 1995, after the conviction and death sentence of Ken Saro-Wiwa and eight of his co-defendants, the CRP requested the Commission adopt provisional measures to prevent the executions. Upon receiving the request, the Commission’s Secretariat sent a note verbale to the government invoking revised Rule 111 of the Commission’s Rules of Procedure. This note verbale was faxed to the relevant authorities of the Nigerian Government and the Secretary General of the OAU. The note emphasized, among other things, that since the case of Mr. Ken Saro-Wiwa was pending before the Commission and the Nigerian Government had invited the Commission to send a mission to visit the country during which the matter would be discussed, the executions should be delayed until the Commission discusses the case with the relevant Nigerian authorities.
Without any response to the Commission’s note, the Provisional Ruling Council (PRC) confirmed the death sentences on November 7, 1995, and three days later, all the defendants were executed in secret at Port Harcourt prison. According to Section 7 of the Civil Disturbances (Special Tribunal) Decree No. 2 of 1987, under which the defendants were tried, the PCR must receive the Court’s trial records before confirming the decision. However, in this case, these records were not prepared and thus never presented to the Council.
During 1996, the Commission received two additional communications from Interights and Civil Liberties Organisation. Interights alleged that the convicted people were arbitrarily detained before and during the trial and were subjected to torture in a military camp. It also detailed a series of irregularities in the conduct of the trial and contended that “they were tried and sentenced to death for peacefully expressing their views and opinions on the violations of the rights of the Ogoni people”. [para. 11] Similarly, Civil Liberties Organisation alleged in its communication that the Civil Disturbances (Special Tribunal) Decree was invalid because it was enacted without the participation of the people. Furthermore, it argued that the composition of the Special Tribunal and the absence of a higher judicial body that could review the judgments constituted a violation of the right to a fair trial. It also alleged that the “trial, conviction and sentencing of Ken Saro-Wiwa and others violated Articles 7.1(b)(c) and (d) of the African Charter, and that the execution of these persons violates Article 4.” [para. 12]
In October 1994, the African Commission was seized of the communications at its 16th Session.
In this case, the ACmHPR had to decide whether the arrest, detention, trial, and execution of Mr. Saro-Wiwa constituted a violation of the right to freedom of expression under Article 9 of the African Charter.
Communication 154/96 claimed that the victims’ peaceful expression of their views on the rights of the people living in the oil-producing areas of Ogoniland through MOSOP and the rally was the reason behind their trial and death sentences. The government did not challenge this submission. The African Commission pointed out that MOSOP was specially created to express the views of these people in the oil-producing areas and that the rally had been organized in that spirit. It noted that the government had already shown prejudice against MOSOP without concrete justification.
In this decision, the Commission held that freedom of association under Article 10.1 of the Charter was violated due to the undefended and unjustified prejudice of the government against the MOSOP. Similarly, the Commission held that Nigeria violated Article 11 on freedom of association by holding “the accused responsible for the murders because they organised the rally after which the murders took place, although Ken Saro-Wiwa for one was prevented by government officials from attending the rally.” [para. 106] As a result, the African Commission concluded that due to the close relationship between the rights provided in Articles 9.2, 10.1, and 11, in the present case a violation of the right to freedom of expression also implied a violation of the freedom of assembly and the freedom of association.
In this case, the African Commission also held Nigeria responsible for the violation of Articles 1, 4, 5, 6, 16, and 26 of the African Charter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by recognizing the close relationship between the rights to freedom of association, assembly, and expression. In particular, the decision states that a violation of the right to freedom of association and assembly can constitute an implicit violation of the right to freedom of expression when the former seeks to prevent the victims from disseminating their views.
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