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Constitutional Rights Project v Nigeria (Communication 140 of 1994; Communication 141 of 1994; Communication 145 of 1995)

African Commission on Human and Peoples' Rights · [1999] ACHPR 6 · 1999 Communications Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communications alleging human rights violations before the African Commission on Human and Peoples' Rights
Decision
Communications upheld; violations of the African Charter established; government invited to comply with Charter obligations

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found Nigeria violated Articles 5, 6, 7(1)(a), 9(1) and (2), and 14 of the African Charter. The proscription of newspapers by name without hearing or accusation of wrongdoing violated freedom of expression. National law cannot override international human rights obligations; limitations must be strictly proportionate and necessary under Article 27(2). Ouster clauses in military decrees rendered local remedies non-existent. Detention without charge was arbitrary. Nullification of pending court cases by executive decree violated the right to have one's cause heard. Armed attacks on activists and seizure of property in defiance of court orders violated dignity and property rights.

Outcome

Communications upheld; violations of the African Charter established; government invited to comply with Charter obligations

Facts

In 1994, Nigeria's military government issued Decrees 6, 7 and 8 proscribing The Guardian, Punch and Concord newspapers. Armed security forces sealed newspaper premises and stopped production. Publishers obtained court orders for damages and vacation of premises, but security forces defied the orders and reoccupied the premises. The decrees contained ouster clauses prohibiting judicial review. Six pro-democracy activists were detained without charge. Armed gangs attacked homes of five human rights activists. Fifteen journalists were arrested and detained. The editor of The Punch was detained for several days. The decrees proscribed over 13 newspapers and magazines for six months with possible extension. Publishers had instituted legal actions before Federal High Courts in Lagos challenging the closures as violations of constitutional and Charter rights to freedom of expression.

Issues

  1. Whether the proscription of newspapers by military decree without a hearing violated the right to freedom of expression under Article 9 of the African Charter.
  2. Whether the detention of pro-democracy activists and journalists without charge constituted arbitrary detention in violation of Article 6 of the African Charter.
  3. Whether the nullification by executive decree of court cases in progress violated the right to have one's cause heard under Article 7(1)(a) of the African Charter.
  4. Whether armed attacks on human rights activists' homes violated the right to dignity and freedom from cruel, inhuman or degrading treatment under Article 5 of the African Charter.
  5. Whether the sealing of newspaper premises in defiance of court orders violated the right to property under Article 14 of the African Charter.
  6. Whether ouster clauses in the military decrees rendered local remedies non-existent for purposes of admissibility under Article 56(5) of the African Charter.

Orders

  • The Commission finds violations of Articles 5, 6, 7(1)(a), 9(1) and (2), and 14 of the African Charter.
  • The Commission invites the government to take all necessary steps to comply with its obligations under the Charter.

Rules and key headnotes

Freedom of Expression — Proscription of Newspapers — Violation of Article 9
The proscription of specific newspapers by name and the sealing of their premises without a hearing at which they could defend themselves, or any accusation of wrongdoing, amounts to harassment of the press and violates the right to express and disseminate opinions under Article 9 of the African Charter.
Limitations on Rights — National Law Cannot Override International Obligations
National law cannot set aside rights guaranteed at the international level. To permit national law to take precedence over international law would defeat the purpose of codifying rights in international law. The phrase 'within the law' in Article 9(2) does not permit a state to derogate from international obligations by making laws at its whim.
Derogation — African Charter Contains No Derogation Clause
The African Charter does not contain a derogation clause. Limitations on Charter rights cannot be justified by emergencies or special circumstances. The only legitimate reasons for limitations are found in Article 27(2): rights must be exercised with due regard to the rights of others, collective security, morality and common interest. Limitations must be strictly proportionate and absolutely necessary, and may not render a right illusory.
Right to Have One's Cause Heard — Nullification of Pending Litigation by Executive Decree
To have a duly instituted court case in the process of litigation nullified by executive decree forecloses all possibility of jurisdiction being exercised by competent national organs and violates Article 7(1)(a). A civil case in process is an asset into which litigants invest resources. The risk of having a suit abruptly nullified discourages litigation with serious consequences for protection of individual rights.
Admissibility — Ouster Clauses Render Local Remedies Non-Existent
Ouster clauses in decrees that prevent ordinary courts from entertaining actions or appeals render local remedies non-existent, ineffective or illegal. They create a legal situation in which the judiciary can provide no check on the executive. Where there is no legal basis to challenge government action, it is reasonable to presume that domestic remedies will not only be prolonged but are certain to yield no results.
Arbitrary Detention — Detention Without Charge on Account of Political Beliefs
To detain persons on account of their political beliefs, especially where no charges are brought against them, renders the deprivation of liberty arbitrary and violates Article 6 of the African Charter. Past arbitrary detentions are not excused by subsequent release.
Right to Property — Seizure of Property Without Accusation or Conviction
The right to property under Article 14 includes the right to have access to one's property and the right not to have one's property invaded or encroached upon. Decrees permitting premises to be sealed up and publications seized without prior accusation or conviction in court, and in defiance of court orders, cannot be said to be appropriate or in the public interest.

Legislation cited (13)

  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7(1)(a)
  • African Charter on Human and Peoples' Rights Article 9(1)
  • African Charter on Human and Peoples' Rights Article 9(2)
  • African Charter on Human and Peoples' Rights Article 14
  • African Charter on Human and Peoples' Rights Article 27(2)
  • African Charter on Human and Peoples' Rights Article 56(5)
  • Constitution of Nigeria 1979 s.36
  • The Concord Newspapers and African Concord Weekly Magazine (Proscription and Prohibition from Circulation) Decree No. 6 of 1994
  • The Punch Newspapers (Proscription and Prohibition from circulation) Decree No. 7 of 1994
  • The Guardian Newspaper and African Guardian Weekly Magazine (Proscription and Prohibition from Circulation) Decree No. 8 of 1994

Cases cited (6)

  • Communication 60/91
  • Communication 101/93
  • Communication 129/94
  • Communication 87/93
  • Communication 59/91
  • Communication 64/91

Full judgment

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Constitutional Rights Project v Nigeria (Communication 140 of 1994; Communication 141 of 1994; Communication 145 of 1995) [1999] ACHPR 6 (15 November 1999)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.