Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
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The African Commission on Human and People’s Rights found the Republic of Nigeria to be in violation of various articles of the African Charter on Human and Peoples Rights as well as Principle 5 of the UN Basic Principles on the Independence of the Judiciary. Niran Malaolu, editor of an independent Nigerian newspaper, was unlawfully incarcerated for his alleged involvement in a coup. The Commission found that the sole reason for Malaolu’s detention was his publications and this amounted to a violation of his right to freedom of expression. Moreover, the Court held that the Nigerian government also violated a whole host of other conditions including the right to be defended, the right to liberty, and impartiality of the court.
On the 28 December 1997, armed soldiers from the Directorate of Military Intelligence arrested Niran Malaolu, editor of an independent Nigerian newspaper, the Diet, alongside three colleagues. At the time of the arrest, Malaolu was not informed as to why he was being detained nor was he issued with a warrant. Malaolu’s colleagues were later released, however, Malaolu was held with no charges until the 14 February 1998. Furthermore, during this period he did not have access to doctors, his family or a lawyer.
In a secret trial, the Special Military Tribunal sentenced Malaolu to life imprisonment for concealment of treason.
Malaolu believed that his “arrest, detention, arraignment, trial, conviction and sentence” [para. 16] entailed breaches of Articles 6, 7, 9, and 26 of the African Charter on Human and Peoples’ Rights. By this, Malaolu believed his right to liberty, his right to have his cause heard and his right to expression to have been breached as well as the Charter’s guarantee of the independence of the courts.
Malaolu alleged that the authorities had detained him based on news stories published by his newspaper on the coup plot involving the at-the-time Chief of Staff and various other military officers and civilians who had “also been convicted by the tribunal and given sentences ranging from prison terms to death by firing squad.” [para. 9] An example of the aforementioned stories was, “The Military Rumbles Again” in the Sunday Diet, which reported on the announcement “of the alleged coup plot it claims to have uncovered.” [para. 10]
Malaolu believed that the Special Military Tribunal which tried him to be incompetent, biased and not independent given that the members were chosen by Head of State, General Sani Abacha, and the Provisional Ruling Council (PRC), which was who the alleged coup was against.
Malaolu further claimed that his Article 9 right to freedom of expression had been breached by Nigeria, as he believed the only real reason he had been detained was because of his publications in the newspaper, speaking out against the at-the-time military regime.
Having been arrested without being informed as to why, without a warrant and being detained incommunicado, Malaolu alleged a breach of Article 6, the right to liberty, of the Charter. Malaolu believed Nigeria to have breached Article 7, the right to have his cause hear, of the Charter, given the incompetency of the court to try his case as well as Article 26 for the country’s failure to guarantee the independence of the court.
Malaolu further alleged that the Military Government of Nigeria organized pre-trial publicity with the intention of convincing members of the public that those who had been arrested were guilty of treason by planning a coup plot.
Further breaches of the Charter alleged by Malaolu included that the private nature of his trial and the appointment of a military lawyer rather than being given the opportunity to be defended by a lawyer of his choice, violated the right to a fair and public hearing.
In response, Nigeria accepted that the situation took place during a military regime and therefore claimed that it would have been impossible to control any abuse of authority by power-hungry military personnel. However, Nigeria did argue that Malaolu was tried under “The Treason and Other Offences (Special Military Tribunal) Act, Cap 444 of the Laws of the Federation of Nigeria, 1990” [para. 30] arose from Decree No.1 of 1986 and therefore, he was tried, convicted and sentences legally in accordance to “the provisions of a known law” [para. 30]
Nigeria further argued that the arrest of Malaolu was not personal nor work related but was due to his involvement in a plot to overthrow General Sani Abacha, who had served as the de facto President of Nigeria. Regarding Malaolu’s claim that the trial had not been just, Nigeria argued, “the right to fair hearing in public was subject to the proviso that the court or tribunal might exclude from the proceedings persons other than the parties thereto in the interest of defense, public safety, public order, etc.” [para.33]
Sitting in Cotonou, the African Commission on Human and Peoples’ Rights found Nigeria to have breached Articles 3(2), 5, 6, 7 (1) (a), (b), (c), (d), 9 and 26 of the African Charter and Principle 5 of the UN Basic Principles on the Independence of the Judiciary.
Article 3(2) refers to the right to equal protection of the law, whilst articles 5 and 6 refer to the right to the respect of the dignity inherent in a human being, and the right to liberty respectively. Article 7 is dedicated to the right to have his cause heard, including the right to an appeal, to be presumed innocent until proven guilty, the right to defence and the right to be tried by an impartial judicial body. Article 9, which the Commission also found Nigeria to be in violation of, refers to the freedom of expression and Article 26 guarantees the independence of the Court.
Principle 5 of the UN Basic Principles on the Independence of the Judiciary states, ’’Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.”
The Commission decided that it was merely Malaolu’s publication in his newspaper, the Diet, regarding “an alleged coup plot involving Nigeria’s’ Chief of Staff and Second -in- Command, Lt. General Oladipo Diya and other military officers and civilians” [para. 67] that led to his punishment and there was no evidence to suggest any other reasoning. The Commission therefore found that Nigeria had indeed violated Article 9 of the Charter given they had abused their position of authority to limit expression.
Furthermore, the Commission found the denial to Malaolu of a lawyer of his choosing to be a violation of the right to defense, including the right to be defended by counsel of his choice (Article 7(1)(c)). Nigeria did not oppose Malaolu’s claim that the Government had organized pre-trial publicity with malicious intentions therefore the Commission found the Government if Nigeria to have violated Article 7(1)(b), that every individual to be presumed innocent until proven guilty, of the Charter.
The Nigerian government did not contest the lack of impartiality of the court who tried Malaolu, and therefore the Commission found Nigeria to have failed to conform to fair hearing standards under the Charter. Consequently, the Commission found the selection process for the Tribunal and the lack of expertise therein to contravene Principle 10 of the Basic Principles on the Independence of Judges, “Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law.” The Commission found treatment received by Malaolu whilst incarcerated and the lack of Government denial about these conditions to constitute a violation of Article 5 of the Charter. The Commission found the Government’s defense regarding the in camera nature of the trial inadequate.
In conclusion, the Commission found that despite the actions of the Nigerian Government being conducted under a valid law at the time, they did, in fact, breach various provisions of the Charter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case clearly expands freedom of expression as it reiterates that authorities cannot simply limit freedom of expression on their own accord. In this case, the Commission took expanding freedom of expression one step further by declaring violations of other Articles of the Charter for actions taken by Nigeria following their infringement of Malaolu’s right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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