Nigeria fails to give legal bite to African Court for Human and Peoples’ Right

Nigeria’s seeming reluctance to deposit the Special Declaration under Article 34 (6) of the African Court for Human and Peoples’ Rights, is beginning to raise concerns, especially among rights activists in the country.

In fact, some lawyers have concluded that the Federal Government may never deposit the special declaration due to its penchant for rights abuses.

While this might not be the case, the fact remains that the government has displayed so much apathy towards the article. Else, how can one explain the delay in the process, despite several efforts and persuasions by the Court’s leadership?
African Court for Human and Peoples’ Right with its permanent seat in Arusha, Tanzania, is the judicial arm of the African Union (AU). The Protocol establishing the Court was adopted on June 9, 1998 in Burkina Faso and came into force on January 25, after it was ratified by more than 15 countries.

The Court was set up primarily to protect human and peoples’ rights in Africa through delivery of judgments and currently has about 33 African nations that have ratified the Protocol establishing it out of 55.

Fortunately, Nigeria is one of the 33 countries that have ratified the Court’s protocol. It is also privileged to have one of its citizens – Justice Stella I. Anukam as a sitting judge in the court.

Yet, its government has continued to apply delay tactics towards the deposition of the Court’s article that is crucial to rights protection of its citizens.

Depositing the Special Declaration under Article 34(6) allows individuals and Non-Governmental Organisations direct access to the court in a case of rights violation by the government or its agents.

Presently, only eight African nations – Burkina Faso, Ghana, The Gambia, Mali, Guinea Bissau, Malawi, Niger and Tunisia have deposited the special declaration. No doubt, the absence of Nigeria from the list speaks volume.
Special recognition accorded Nigeria has necessitated several efforts by the Court to ensure it deposits the declaration.

Provoked by the delay, some human right lawyers have approached national courts, seeking an order to compel the country to do the needful.

Femi Falana (SAN) had sometime ago, dragged the government before the Abuja Division of the Federal High Court over the issue. Unfortunately, Justice John Tsoho dismissed the suit for several reasons – that his court lacked requisite jurisdiction to grant his prayers; that the law establishing African Court did not make provisions for how member states could make the needed declaration; that the use of the word, “optional”, in the law establishing the court gave member states the discretion to decide whether or not to make the declaration.

Above all, the judge raised one of the issues that resonated during the 2021 conference organised by the Court in Dar Es Salaam, Tanzania, between November and December 2021- that the charter itself did not provide any mechanism for compelling member states to deposit the declaration. Thus, it becomes difficult to mandate nations to do so.

This loophole in the charter has remained a major encumbrance to depositing the declaration by some stubborn nations such as Nigeria where leaders exhibit high level of rights abuses.

In spite of all the bottlenecks, however, Nigeria’s Justice Anukam strongly canvasses the country to deposit the declaration without further delay. This will not only make her proud as a sitting judge of the court, she felt that it would raise Nigeria’s profile as a human rights compliant nation.

She confirmed that the Court had on December 8, 2022, written another letter to President Buhari, Minister of Foreign Affairs as well the Attorney General of the Federation and Minister of Justice.

“Even the board of Human Rights Commission also paid a courtesy visit to the AGF lately on the issue, while some human right lawyers including Falana have written to the government, asking that they do the right thing.”

Justice Anukam maintained that time was due for Nigeria to deposit the declaration. “I think this is the best time for Nigeria to deposit the declaration. This should be a subtle reminder to the government because it will be a big plus to Nigeria and this present government to do so.

“It will enhance our image as a human right compliant nation. It will also be a big celebration to Nigeria. As the most populous African nation, once Nigeria takes a step, the remaining African nations that are yet to deposit will follow because many countries are looking up to us,” she said.

A constitutional lawyer and a strong advocate for the deposition of the article, Chief Festus Oguche, lamented that dispensation of justice in the human rights sphere has remained stunted at the African continental level as a result of the refusal by most member countries of the AU to abide by the Declarations contained in the Court’s Protocol.

To him, it simply translates to a denial of the right of access for the ventilation of human rights violation complaints before the African regional court, thereby constricting the space and ambit for redress within the region.

He said: “There is the paradox of member countries expending state resources in the establishment of the court and at the same time, disallowing their citizens of direct access to the courts by refusing to make the appropriate Declarations under the Court’s Protocol that will enable such access.

“This is in breach of all standards of the human rights framework within the continent as envisaged by the African Charter on Human and Peoples’ Rights and amounts to an infringement of all its provisions and guarantees.”

Oguche blamed such attitude on the inability and emasculation of domestic courts to tackle rampant cases of human rights abuses within the continent.

He said: “It is apparent that African leaders have a loathsome disposition to the existence of the human rights court and are simply playing to the global gallery in its establishment, particularly in the area of the court’s powers to intervene in cases already decided by the domestic courts upon the exhaustion of local remedies.

“This apparently threatens the excruciating stranglehold of African leaders on their judicial systems, alongside the prevailing tyrannical order that exists in most domestic entities in spite of the veiled ascriptions to democratic and constitutional order.

“Nigeria is a typical example here. The implication, therefore, is that African leaders prefer to toe the path of infamy and stand in defiance of the avowed goals of the Union instruments by acting in defiance of its establishment Treaty and the subsequent Protocols that seek to entrench fundamental rights and freedoms in the continent.

“The current situation in some African countries including Nigeria is for an aggrieved person who seeks to access the African human rights court to do so through the state legal apparatus set up by government, and which is very wrong.

For instance, if Economic and Financial Crimes Commission (EFCC) violates my fundamental rights, the only way I can access the court in Arusha, Tanzania, for redress is to complain, first to the Federal Government through the Attorney General’s office and secondly, for the government to, upon its ascertainment of the genuineness of my complaint, proceed to the court on my behalf and against itself. This is very wrong.”

Oguche not only faulted the process, he described it as both deceitful and hypocritical. He wondered how the only route to approach a court in pursuit of one’s rights and freedom is through the same machinery of the entity that violated the particular rights he or she seeks to be enforced. Ironically, same entity will turn out to be the defendant in the case when it finally gets to court.

Oguche said: “It sounds awkward and downright nonsensical that a plaintiff can approach the court against the unlawful acts of the defendant only with the approval or permission of the defendant.

“It also defies every known logic to state that it is the defendant that will prosecute the case against himself in a manner that makes him both the plaintiff and the defendant. Nothing can be more fallacious.

“As bizarre as that may sound, it appears to have become the relish and disposition of most African countries, particularly Nigeria, and which are championed with utmost zeal with pretentious justifications that sound as stale and drab as the egoistic and wanton political pursuits and interests of officials of state.”

Oguche expressed worries that the development raises grave concerns on the existence and future of the court on the continent.

He urged that state parties to the Organisation of African Union (OAU) treaty and the Charters must convince themselves of their commitment and obligations under those instruments and stop making mockery of the only judicial mechanism for the preservation and enforcement of rights abuses within the continent.

He explained that they must evolve the appropriate policies and measures for the wholesome existence and proper functioning of the court by imbuing it with the requisite power and jurisdiction.

For him, it is imperative that Nigeria gets a human rights Court that can stand at par with its counterparts in Europe and America; that is fully enabled with the instruments of judicial power and competence.

According to him, it is totally out of place for Africans to stand aloof and watch the seeming caricature and distortions that are being made of freedom and justice by political leaders in a 21st century world.

Another human rights expert, Dr. Macaulay Jumbo stated that issues relating to human rights and its abuses are of global concerns and consequently, requires concerted global effort, determination and political will to deal with.

He added that human rights are synonymous with the existence of humanity and where there is a consistent and deliberate abuse of citizens’ rights by state actors, the society could be described as ‘insane.’

“In essence, as Justice Kayode Oso once said that human rights predates the existence of any society as it institutionalises sanity in the society and hence, it is seen and regarded as inherent and inalienable.”

Jumbo added that human rights cannot be divorced from humanity; hence, at the international level, it was followed with the Universal Declaration of Human Rights by the United Nations in 1948.

He noted that the failure of Nigeria to deposit and implement Article 34(6), thereby denying its citizens, including private individuals and Non-Governmental Organisations access to the court directly on issues concerning human rights violations weakens the entire process of the domestication of the Court’s Protocol.

On whether the non-deposit of a special declaration by Nigeria under Article 34(6) to allow individuals and NGOs access to the Court directly was deliberate, considering that several efforts have been made to persuade government to do so, the lawyer said he would not be surprised if that was the position.

“The most important point to note is that a deposit of the special declaration will allow citizens the rights to sue the government for rights violations. Also, it is worthy of note that the worst violators of citizens’ rights is the government as they become the oppressors of the people they rule by the use of security agencies to harass, intimidate, maim and most times, kill the citizens they are expected to protect as given to them by the constitution of the land.

“I strongly believe, and I am persuaded to say unequivocally that the refusal or indiscriminate delay of the Nigerian government who acts as the Africa’s big brother, to deposit a special declaration in favour of Article 34(6) is deliberate.
“I said so because a deposit of a special declaration to allow for direct access by individuals and NGOs to the Court, which they have ratified, will not be in their selfish interest as it will expose them more to the international community.
“The government’s ills and atrocities committed against the people will become more obvious and apparent to the world. For example, in the ENDSARS protest of 2020 in Nigeria, people were shot dead by Nigeria’s security agents at Lekki Toll Gate. Yet, the government of the day refused to acknowledge that fact by denying the incident even after it was reported by both local and international media organisations,” he stated.

Jumbo lamented the daily killing of Nigerians in their villages and communities as if there is no government.

People, he said, are sacked from their homes and they live in Internally Displaced People’s (IDP) camps in negation of their rights to good shelter as entrenched in the African Charter on Human and Peoples Rights.
“Yet, we have a government in Nigeria that only sits and watch people die indiscriminately and do nothing or less about these killer herdsmen, bandits, unknown gun men and religious fanatics who constitute themselves into various terrorists groups,” he said.

According to him, the government has failed in its primary duty in the protection of life and property in this regard as citizens live in fear every day.

His words: “The regular courts in Nigeria are inundated with fleets of human rights cases against the Police, Army, DSS as the worst violators. Even when judgment is got against them, its implementation and recovery of damages awarded to the applicants is usually a difficult process.
“The officers who are involved in these abuses of rights do not pay the damages directly, and that is why they go ahead abusing peoples’ rights. They should be made to face the consequences of their actions as it will curtail the abuses of rights of individuals.”

Sadly, Jumbo, a rights activist, disclosed that most of the courts, where lawyers appear as counsel to prosecute cases of rights abuses do not appreciate the superiority of the African Charter on Human and Peoples Rights as they bring the African Charter subject to domestic laws which ought not to be. “The ACHPR is superior to our domestic laws,” he informed. “I restate that non-deposit of Article 34(6) by Nigeria is deliberate.”

He, however, warned that Nigeria must understand that all other African nations are looking up to it as big brothers to set the pace, and where they refuse to act, other nations of Africa will also choose to remain docile.

On the likely impact of the deposit on Nigeria, the lawyer stated that it would significantly reduce and address cases of human rights abuses by the government, if only the decisions of the African Court of Human Rights will be binding on member nations of Africa.

Jumbo referred to ECOWAS Community Court of Justice, which was set up by the Economic Community of West African States but which the decisions appear not binding on member nations.

“Most times, the Nigerian state refuses to implement decisions handed down by the ECOWAS court. Will this not be the same for the African Court for People’s and Human Rights?” He asked.

Adding: “In the final analysis, one can attribute Nigeria’s refusal for a deposition of declaration as deliberate. Nigeria being noted as a nation that does not respect the rule of law, disobeys court orders and carry out indiscriminate arrests of citizens without due process.

“The leaders also know that where direct access is granted individuals and NGOs, it will further expose the ills and inadequacies of our justice system as it relates to human rights violations.

Jumbo, therefore, called for a change of attitude to human rights issues, not to be classified as one of the nations of the world with the worst human rights record.

And when the Attorney General of the Federation and Minister of Justice, Abubakar Mallami (SAN) was contacted to know Nigeria’s position on the issue, he simply stated that the country upholds fundamental human rights.
While claiming that government will always ensure protection of citizens’ rights, the minister declared that Nigeria is not obliged to ratify or deposit any special declaration that is not in its favour.

According to him, Nigeria is still studying the provisions of the declaration to ascertain whether or not it will deposit it. He added that for Nigeria to deposit the declaration, its advantages to the nation must outweigh disadvantages.

He also stated that the interest of the nation is paramount. He also recalled the volume of cases against the government in ECOWAS Court dockets and stated categorically that the government already has enough to chew with that.

But an erstwhile National Commissioner, National Human Rights Commission of Nigeria and National Coordinator, Human Rights Writers Association of Nigeria (HURIWA), Emmanuel Onwubiko, insisted that Nigerian government has no cogent, verifiable or logical reason or reasons not to deposit the article other than the fact that it do not subscribe to the good governance principles of transparency and accountability.

He added that most public office holders breach oaths of office and engage in official misconduct, fraud and financial misappropriation which give rise to wanton abuses and violations of the rights of the citizens of Nigeria.

“So, the Federal Government headed by President Muhammadu Buhari may not want to expose the officials to suits before the African Human Rights Courts that they may consider embarrassing, especially because as an African Court that is not likely to be tele-guided or remotely influenced by the government as they do in some cases locally within Nigeria, it is possible that the African Court of Human Rights may adjudicate or entertain cases emanating from Nigeria in a transparent manner and if these cases are heard with minimal interferences by government of Nigeria, then, many officials of Nigeria may be in big soup as they will be convicted of several charges of human rights abuses.

“Nigeria under the government of President Buhari since 2015 has become notorious violator of human rights in many ways, including using armed police and soldiers to quell peaceful demonstrations which in many instances, had resulted in the extrajudicial execution of many unarmed and peaceful protesters as was done on October 20, 2020 at Lekki Toll Gate in Lagos, and these killings are done by the police and the Army which are directly controlled by the President.

“The State Security Services (SSS) has been accused of involvement in enforced disappearances of many Nigerians perceived to be dissidents who have different opinion from the President or governors and in many instances, some of these persons who disappear are never seen by their relations.

“The Federal Government doesn’t have any good reason not to deposit the said legal template but because it has no regards for the human rights of millions of Nigerians. This government may not want to comply for fear that their iniquities would be exposed if cases are instituted before the African courts on Human rights.