Press Freedom, Violence Against Speakers / Impunity, National Security, Political Expression
Article 19 v. Eritrea
Closed Contracts Expression
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The Community Court of Justice of the Economic Community of West African States (ECOWAS) determined that Nigeria violated Articles 5 and 6 of the African Charter on Human and Peoples’ Rights by subjecting journalist Agba Jalingo to arbitrary detention for 34 days and acts of torture during his imprisonment. Jalingo, a journalist and publisher, was subjected to arbitrary detention and torture following his exposé on corruption within a government agency. This case was brought to the regional Court by the Socio-Economic Rights and Accountability Project (SERAP), a Nigerian Non-Governmental Organization. While the Court did not accept the allegations of a violation of Jalingo’s freedom of expression due to insufficient evidence, it ruled in favor of Jalingo on the unlawful arrest and torture claims, noting that Nigeria failed to contest or dispute these allegations. The Court ordered the Nigerian government to pay Jalingo a lump sum of thirty million naira (N30,000,000/approx. USD 39,735) as compensation. Furthermore, the Court directed the government to provide a report within three months outlining the steps taken to implement the Court’s orders, underlining the significance of upholding human rights and accountability in the region.
On August 22, 2019, Agba Jalingo, a journalist, was arrested in Lagos by the Nigerian Police. This arrest was based on allegations that he had committed offenses under the Cybercrimes (Prohibition, Prevention, etc.) Act of 2015, the Terrorism (Prevention Amendment) Act of 2013, and the Criminal Code Act. The accusations against him were linked to an article he had published on his media platform, Cross River Watch [para. 16]. In the said article, he made claims that the Cross River State Governor had illegally diverted a substantial sum of 500 million Naira from the Cross River Microfinance Bank [para. 17]. Jalingo’s arrest concerned a series of events, wherein a team of eight police officers was involved, four of whom forcibly entered Jalingo’s residence, arrested him, and swiftly transported him to a waiting vehicle, where four additional police officers were stationed. Jalingo was accompanied by his wife during this arrest, and they were both taken to the Inspector General of Police Intelligence Response Team (IGPIRT) located in Ikeja, Lagos State [para. 35].
After reaching IGPIRT, Jalingo was confined to a Police Cell in Ikeja, where he remained until 4:00 AM on August 23, 2019. At that point, he was taken out of the cell and placed in the trunk of a car, with his hands and legs cuffed. He was then subjected to a long six-hour journey to Calabar in Cross River State [para. 36]. Throughout this extended trip, Jalingo was cruelly denied the opportunity to relieve himself, which resulted in him urinating and defecating on his own body [para. 36].
Upon arriving in Calabar, Jalingo was taken to the Anti-Cultism and Anti-Kidnapping Unit of the Cross River State Command of the Nigerian Police. He was handcuffed to a deep freezer in a room referred to as “The Charging Room” [para. 37]. He remained there for about 34 days without being presented before a Court of law. During this period, he was physically restrained and the only time his right hand was uncuffed was when it was necessary for him to eat, after which it would be immediately cuffed again.
While in detention in the so-called “Charging Room”, Jalingo was confronted with a settlement proposition called ‘Terms of Settlement’, which essentially required him to cease his criticism of the Governor. In return for complying with these terms, he would be released from detention and offered some financial compensation. However, Jalingo declined to sign these terms [para 39]. In response to his refusal, the Officer-In-Charge of the Legal Unit (O/C, Legal) informed Jalingo that unless he agreed to the terms, he would be charged and brought before a judge, facing accusations of treason, felony, and terrorism [para. 40].
On September 25, 2019, Jalingo was presented before Justice Tamulgede, Federal High Court of Calabar on the alleged charges of Treasonable Felony, Terrorism, and Cultism, and an attempt to overthrow President Buhari and the Governor of Cross-River State. Jalingo pleaded not guilty to all the offenses, and he was remanded in ACO Camp correctional, wherein he spent 119 Days in ACO Camp. On October 4, 2019, Justice Tamulgede heard Jalingo’s bail application and dismissed the same on the account that one of the alleged offenses attracted the death penalty [para. 20]. On February 22, 2020, Justice Shuaibu heard Jalingo’s second bail application and granted the bail to Jalingo [para. 41].
On February 7, 2020, the Applicant, the Socio-Economic Rights and Accountability Project (SERAP), a Nigerian NGO, filed the Original Application against the Respondents, the Federal Republic of Nigeria and the Government of Cross River State, before the Community Court of Justice of the Economic Community of West African States (ECOWAS). In its application, the Applicant challenged the legality of the use of the Cyber (Prohibition, Prevention, etc.) Act, 2015; Terrorism (Prevention Amendment) Act, 2013, and the Criminal Code Act for charging Jalingo before the Federal High Court of Calabar, on the publication of an article [para. 6].
Justices Edward Amoako Asante, Dupe Atoki, and T. Silva Moreira Costa delivered a unanimous decision. The central issues presented before the Court encompassed several key aspects. Firstly, it addressed the question of whether the Court had jurisdiction to preside over the matter under Article 9(4) of the Supplementary Protocol. Secondly, it examined whether there had been a violation of Jalingo’s rights, including his freedom of expression, information, opinion, and media freedom, unlawful arrest & detention, and torture, protected under the International Human Rights treaties.
On the issue of jurisdiction, the Applicant contended that the matter concerned the violation of the human rights of Jalingo under Articles 4, 5, 6, and 7 of the African Charter and also under ICCPR & UDHR in pari materia [para. 44). The Court referred to its previous decision of Bakare Sarre v. the Republic of Mali, (2011), to stress that once human rights violations involving international or community obligations of a member state are alleged, the Court has jurisdiction over the matter. Thus, the Court held that it had jurisdiction over the matter [para. 44).
On the issue of admissibility, the Respondent contended that criminal proceedings were pending against Jalingo in a domestic Court, and initiating another lawsuit before the ECOWAS Court would constitute an abuse of the judicial process [para. 46]. The Applicant contended that the ongoing domestic criminal case against Jalingo did not constitute a legal impediment to the prosecution of this matter [para. 47]. The Applicant further asserted that the essential issues and remedies sought in these two cases are fundamentally dissimilar and, therefore, did not give rise to any conflicting interests or legal constraints [para. 48]. The Court held that, instead of the Lis Pendis Doctrine, the only instance wherein the Court will not entertain an application for the violation of human rights is when the same matter is before another international court, not when it is before a domestic court [para. 49]. The Court referred to Hans Capehart Williams v. the Republic of Liberia, (2019), wherein it held that Article 10(d) of the Supplementary Protocol, which governs the admissibility of human rights violation cases, stipulates specific conditions, including that cases must be filed by victims, not be anonymous, and not be pending before another international court [para. 50].
Furthermore, the Court acknowledged that the claims of human rights violations and the legal arguments presented in the case were straightforward and well within its jurisdiction; thus, the existence of a separate criminal case against Jalingo in a domestic court did not constitute an abuse of court process. This distinction is crucial because the two points serve different purposes, one being civil in nature and the other criminal [para. 51]. The Court referred to Dr. Sam Emeka Ukaegbu v. the President of the Federal Republic of Nigeria, (2015), wherein it had outlined the criteria to determine whether an action constitutes an abuse of the Court process. These criteria inter alia include a multiplicity of suits, involvement of the same parties, concerning the same issue, and consideration of the content of both suits to determine if they aim to achieve the same purpose. The Court further referred to Private Alimu Akeem v. the Republic of Nigeria, (2014), and emphasized that the criminal nature of the offense instituted against the applicant in Nigeria cannot be a ground for declaring the application before the Court as inadmissible [para. 52-53]. In light of these legal principles and precedents, the Court held that the prosecution of the instant suit did not amount to an abuse of the Court process, despite the existence of a mutual domestic suit against the principal beneficiary, Jalingo [para. 55].
On the issue of the violation of human rights of Jalingo, the Court referred to Hemabadoon Chia v. the Federal Republic of Nigeria, (2018) to observe that the allegation of violation of human rights must be substantiated with some concrete facts, and the burden of proof is on the person alleging that his/her/their right is violated [paras. 66-67]. The Court identified three broad allegations of human rights violations, i.e.,
The Appellant asserted that the Respondent while utilizing the Cybercrime Act and Criminal Code Act, violated the Appellant’s right to freedom of expression, as enshrined in international human rights treaties. Specifically, the Appellant referred to Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights (ICCPR) as provisions safeguarding the freedom of expression. The Appellant contended that the utilization of the Cybercrime Act and Criminal Code Act to harass, detain, and intimidate him for disclosing corruption on an online media platform constituted a breach of his freedom of expression rights as delineated in these international human rights treaties [paras. 72-71]. On the contrary, the Respondent denied the violation of freedom of expression and contended that Jalingo was charged under the ambit of law for the offenses he was alleged to have committed [para.72].
In considering the alleged violation of freedom of expression in this case, the Court examined the relevant provisions of international and regional human rights instruments, including Article 9 of the African Charter, Article 19(1) & (2) of the ICCPR, and the Declaration of Principles on Freedom of Expression in Africa, 2002. The Court noted that these provisions are in pari materia, and thus, the determination of the Applicant’s case under Article 9 of the African Charter applies mutatis mutandis to the other cited human rights instruments [para. 73]. The Applicant claimed a violation of Jalingo’s fundamental right to freedom of expression, information, privacy, and opinion/media freedom. However, the Court found that the Applicant has failed to provide sufficient evidence to demonstrate precisely how the Respondent violated these rights [para. 74].
The Court further noted that, while it is established that Jalingo was arrested and detained, and subsequently brought before the Court on charges grounded in the extant laws of the Respondent State, particularly those referred to by the Applicant, the Applicant’s main contention was that these laws were promulgated ostensibly to harass and intimidate journalists, including Jalingo, and that they were used to silence him. The Court held that the Applicant’s reference to Section 24 of the Cybercrime Act, 2015, which provides for the offense of “cyberstalking”, was capable of tangible proof. However, the Court held that the Applicant failed to provide concrete evidence regarding the specific journalists affected, their names, and the circumstances surrounding the violation of their rights through the instrumentalities of the impugned laws [paras. 75-76]. The Court emphasized that it was not sufficient to merely make a blanket statement alleging rights violations; every allegation must be substantiated. The Court consistently expressed its preparedness to act, but it required well-substantiated allegations with a clear focus for action (Congrès Pour La Démocratie et le Progrès v. Burkina Faso, (2015)) [para. 77].
The Applicant also maintained that this was not the first instance where the Respondent attempted to harass, intimidate, and suppress journalists through trumped-up charges brought under unjust laws. The Applicant referred to Sections 4, 1 & 59 of the Criminal Code Act and Sections 1 & 17(2)(a) & (b) of the Terrorism (Prevention, Amendment) Act to emphasize the vagueness and diverse subjective application of these laws. However, the Court held that “Applicant’s failure to particularize the ambiguity and void nature of these provisions has compelled the Court to pursue the said provisions are not violative of international standard” [para. 81].
Furthermore, the Court emphasized that while freedom of expression and press freedom are fundamental human rights, they are not absolute and can be subject to limitations within the boundaries of the law (Dehyda Hydara v. the Republic of the Gambia). The Court noted that the criminal justice system allows for fair trials, and Jalingo had not demonstrated any improprieties in his trial that would infringe upon his rights [para. 89]. Additionally, the Court addressed the claim of a violation of the right to information and found that the Applicant had failed to provide evidence of individuals being denied access to public records as alleged [paras. 94-95]. Ultimately, the Court concluded that the Applicant had not met the burden of proof required to substantiate its claims, and therefore, the allegations of violations of freedom of expression were dismissed [para. 96].
On the allegation of unlawful arrest, the Court noted that it is undisputed that Jalingo was arrested on August 22, 2019, from his home and detained for 34 days until he was finally arraigned before the Federal High Court, Calabar [para. 97]. The Court acknowledged that law enforcement agencies have the authority to arrest, detain, investigate, and arraign individuals suspected of crimes, but sometimes these actions can infringe upon the human rights of the suspects [para. 98]. Furthermore, the Court referred to Noel Mian Diallo v. the Federal Republic of Nigeria, (2019) to emphasize that arrests and detentions conducted within the confines of domestic laws and international agreements are not considered arbitrary [para. 99]. The Court also referred to Assima Kokou Innocent v. the Republic of Togo, (2013) wherein the Court held that “the Arrest of Applicants, which measure was taken within the framework of a judicial procedure on grounds of offenses provided for and punished by the Criminal Code of Togo, is not arbitrary” [para. 99].
The Court noted that Jalingo’s claim of detention for 34 days without trial is unchallenged by the Respondent, and uncontroverted evidence established the case of 34 days detention without trial [para. 100]. The Court referred to Benson Olua Okamba v. the Republic of Benin, (2017), to establish that the burden of proof in cases of detention falls on the defendant to prove that it was not arbitrary, and in this case, the Respondent did not offer any justification for the prolonged detention [para. 101].
The Court referred to Khalifa Ababacar Sall v. The Republic of Senegal, (2018) and held that arbitrary detention is any deprivation of liberty by the State or its agents lacking a legitimate or reasonable basis and violating legal provisions [para. 103]. It further referred to Article 6 of the African Charter on Human and Peoples’ Rights, which guarantees the right to liberty and security of a person and prohibits arbitrary arrests or detentions [para. 105]. While the Applicant did not specify any particular legislation that had been violated in connection with the alleged arbitrary detention of Jalingo, the Court regarded Jalingo’s evidence as credible [para. 106]. Additionally, the Court noted that the Respondent did not offer a denial or justification for the detention. Consequently, the Court held that the Respondent’s failure to contest the allegation of arbitrary detention and the unusual circumstances of Jalingo’s detention violated his right to protection from unlawful arrest and detention under Article 6 of the African Charter on Human and Peoples’ Rights [para. 107].
On the allegations of torture, the Court observed that during both his examination-in-chief and cross-examination, Jalingo consistently asserted that he had been subjected to handcuffs for 34 days [para. 108]. The Court noted that the Applicant’s failure to present concrete evidence to substantiate these allegations was justified, taking into account the “clearly evident impediments” that hindered Jalingo’s ability to gather concrete proof of the alleged torture. The Court recognized that the burden of proof typically rests on the Applicant in such cases. However, the Court held that under specific circumstances, this burden may shift to the Respondent. The Court referenced the case of Assima Kokou Innocent v. the Republic of Togo, (2013) to support its position. In that case, it was established that when allegations of torture are made against authorities responsible for the investigation and prison administration, the Court takes into account whether the applicants had genuine opportunities to collect evidence. Given their vulnerable situation, it can be reasonably assumed that the applicants might face significant challenges in gathering proof of the abusive acts they endured. As a result, the burden of proof is shifted to the Republic of Togo to demonstrate that there were no acts of torture or actions akin to torture [para. 109].
In conclusion, the Court found in favor of the Applicant, Jalingo, in the matter of the allegations of torture. The Court determined that the act of handcuffing Jalingo to a deep freezer for thirty-four days resulted in severe pain and suffering, along with a significant restriction of movement and attendant discomfort. This treatment amounted to torturous conduct, as defined by the Convention Against Torture (CAT), and was contrary to Article 1 of the African Charter. The Court noted that, importantly, the Respondent did not contest or dispute the allegations. Therefore, in light of the compelling evidence presented and the absence of any denial from the Respondent, the Court upheld the Applicant’s claim of torture and held that the Respondent violated Jalingo’s right to be free from torture under Article 5 of the African Charter on Human and Peoples’ Rights [para. 112-114].
Having determined that Jalingo’s detention was arbitrary and that he had been subjected to unlawful acts of torture, the Court awarded Jalingo compensation for thirty million naira (approx. USD 39,735) to address the moral and psychological trauma he endured. Additionally, the Court ordered the Respondent to provide a report of their compliance with the Court’s directives, which includes the payment of the thirty million naira (approx. USD 39,735) compensation [para 121-122].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling does not substantially broaden the scope of freedom of expression but rather emphasizes the necessity of upholding existing international and regional human rights norms regarding freedom of expression. The decision highlights the crucial requirement of presenting concrete evidence to substantiate allegations of rights violations and reinforces the principle that freedom of expression is not an absolute right but can be subject to lawful restrictions when necessary to protect national security or public order. However, the ruling makes a significant contribution by unequivocally condemning arbitrary detention and torture. It underscores the imperative of respecting individuals’ rights to liberty and security, particularly in cases involving prolonged detention without trial, and reaffirms the duty of states to prevent and penalize acts of torture and ill-treatment. Additionally, the decision underscores the obligation to provide compensation to victims of such violations.
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