HUMAN RIGHTS COMMITTEE BEGINS CONSIDERATION OF NIGERIA'S REPORT

Press Release
HR/CT/467

HUMAN RIGHTS COMMITTEE BEGINS CONSIDERATION OF NIGERIA'S REPORT

The tribunal system in Nigeria, which permitted application of the death penalty without the right of appeal, violated Nigeria's obligations under the International Covenant on Civil and Political Rights, expert members of the Human Rights Committee stressed this morning, as they began their consideration of that country's initial report on its compliance with the Covenant.

Members of the Committee stressed that it was not acceptable that individuals could be held incommunicado for indefinite periods of time, that civilians could be judged by military tribunals, or that tribunal decisions could not be questioned by a court of law. One expert stressed that public executions amounted to putting the clock back -- not by decades, but by centuries.

Introducing Nigeria's report at the outset of the meeting, Auwalu H. Yadudu, Special Legal Adviser to the President, said his country would give the highest consideration to recommendations which the Committee might offer to assist it in fulfilling its international obligations. He then provided a detailed history of the case of Ken Saro-Wiwa, whose trial and execution last year, along with other members of the Movement for the Survival of the Ogoni People, led the Committee to request today's urgent report.

Mr. Yadudu described Mr. Saro-Wiwa as one who had "chosen the destructive path" and "preferred confrontation to conciliation". Nevertheless, Mr. Saro-Wiwa and the other accused had been given a fair trial under due process by a competent tribunal, in an open proceeding that was covered by the press and human rights groups. Challenging that view, one expert said that Mr. Saro-Wiwa had been held incommunicado, beaten, and deprived of medical care, in violation of several articles of the Covenant.

Committee members expressed many concerns regarding the Saro-Wiwa case and posed a variety of questions to the delegation. One expert wished to know what was going to happen to those who were currently waiting to be tried by a

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special tribunal? Others asked for information on the what was described as the growing number of extrajudicial killings in Nigeria. Why had police officers who committed such offences not been brought to trial? one asked.

How many death sentences had been handed down by the current Government? one expert wanted to know. What was the approximate number of victims of extrajudicial killings by military and police? Was it true that the Government routinely arrested human rights activists and that it still retained labour leaders and pro-democracy activists in detention without trial? How could such activities be squared with the Covenant?

Participating in this morning's discussion were the experts from Egypt, India, United Kingdom, Australia, Mauritius, Germany, Italy, Cyprus, Ecuador, United States, Hungary, Japan, France and Venezuela.

The Committee will meet again at 3 p.m. today, to hear Nigeria's response and to conclude its consideration of Nigeria's initial report. Nigeria previously informed the Committee that its delegation would only be able to appear before it for one day.

Committee Work Programme

The Human Rights Committee met this morning to begin its consideration of the initial report of Nigeria on its compliance with the International Covenant on Civil and Political Rights (document CCPR/C/92/Add.1). That report was submitted in response to the Committee's decision of 29 November 1995 requesting an urgent report in the aftermath of the trials and execution of Ken Saro-Wiwa and other members of the Movement for the Survival of the Ogoni People.

According to Nigeria's report, the rights provided in the Covenant are all recognized in its Constitution and can be invoked like any municipal law. The 1979 Constitution provides for the sanctity of the human person and prevents exploitation of human and natural resources in any form except for the good of the entire community.

Under Nigerian law, no citizen shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth, the report states. Existing legislation has ample provisions for the protection of aliens, and the Constitution allows any person, alien or indigen, power to seek redress in the High Court. Every aggrieved person has the right to be fairly heard under Nigerian law, and every person charged with a criminal offence is presumed innocent until proven guilty.

Although the Constitution makes adequate provision for the equality of women, that has not ended discrimination, the report states. The percentage of women holding government positions is small. Nevertheless, strenuous efforts are being made to elevate the status of women. For example, in the past women could not obtain loans in financial institutions without the consent of their husbands and, therefore, could not own real property, but that was no longer the case.

The report details the procedure for declaring a state of emergency. When there is a breakdown of public order and safety, an immediate dusk-to- dawn curfew is imposed. When public danger constitutes a threat to the existence of the Federation, emergency measures may include closure of media that are considered to constitute that threat. The Nigeria Media Council Act places journalists practising in Nigeria under a duty to respect the honour, dignity, rights and legitimate interests of citizens and organizations and to strictly observe journalistic ethics.

Under Nigerian law, no one shall be deprived intentionally of his life except in execution of a judicial sentence for a criminal offence. The offences of treason, mutiny, armed robbery and intentional murder carry the death penalty. However, the issue of amnesty is constitutionally recognized. There is no death penalty for persons under the age of eighteen, pregnant

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women, and persons of unsound mind. A deprivation constituting the crime of genocide is punishable as murder.

The Government has taken numerous measures to lower infant mortality and increase life expectancy, the report continues. In addition, the Criminal Code Act prescribes 14 years imprisonment for any persons attempting to perform an abortion on another, seven years for any person attempting to perform one on herself, and three years for supplying drugs or instruments for an abortion.

Although Nigeria is not a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, its Constitution states that no person shall be subjected to such treatment. Police officers are bound by law to refrain from acts of torture, and any evidence obtained by torture is disregarded in court. Where torture leads to death, the accused is charged with murder. Where any government official induces the torture, he is charged as an accomplice and punished simultaneously.

In Nigerian prisons, young persons, people awaiting trial, and those who have been sentenced are kept separate, as are male and female prisoners, the report states. In so far as practicable, prisoners before trial are kept apart from convicted prisoners, juveniles under sixteen years of age from adults, and debtors and other non-criminal prisons from criminal prisoners. Attempted suicide is prosecutable as attempted murder. When a person induces another to commit suicide, he is charged with murder.

Slavery and forced labour are absolutely prohibited in Nigeria, the report states. However, the prohibition of forced labour does not include labour required in a court-imposed sentences, compulsory national service, or normal communal obligations. Any person who is arrested or detained has the right to remain silent until consultation with a legal practitioner. The accused shall be provided with the assistance of an interpreter at no charge, if he so requires. Where a competent interpreter is not available, the proceedings must be adjourned and the accused granted bail. A person cannot be sent to prison for failure to comply with a contractual obligation, provided that such inability was not aimed at perpetrating fraud or forgery.

Under the Constitution, "a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and Constitution in such manner as to secure its independence and impartiality". Court trials and tribunal proceedings for criminal offences are held in public, except in such matters as defence, public safety, order and morality, or complicated matrimonial issues.

No person tried for a criminal offence shall be compelled to give evidence at the trial, the report states. The Constitution provides for

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instances when an accused person can appeal as of right, and when he can do so with the leave of the court. The decisions of tribunals are also subject to appeal. "This brings Nigerian tribunals into conformity with democratic norms." When a citizen is wrongly dealt with by the Government, he is entitled to timely compensation and public apology.

"The use of retroactive laws is not a regular feature in Nigeria except where State security or the emergence of imminent danger to the continuity of Nigeria dictates otherwise", the report states. It goes on to say that, prior to 1985, there was no law that made planning a coup d'état an offence. However, following an attempted coup, the Treasonable and Other Offences Decree No. 1 was promulgated in 1986.

According to the report, Nigeria's Constitution protects the privacy of citizens, their names, correspondence, telephone conversations and telegraphic communications, and guarantees the inviolability of their dwellings. With specific exceptions, "any person who publishes any defamatory matter is guilty of a misdemeanour and is liable to imprisonment for one year, and any person who publishes any defamatory matter knowing it to be false is liable for imprisonment for two years". The law provides for compensation for moral damage resulting from such defamations.

In Nigeria, every person is entitled to freedom of thought, conscience and religion, the report states. It is an offence to coerce citizens of a different faith. Where that is tried, the State will intervene. Forceful religious preaching in the streets is forbidden. Where the practice and observance of religious beliefs tends to threaten the existence of the State, ad hoc laws are passed to control excesses. There is no State religion, and the Government has sponsored yearly pilgrimages to Mecca for Muslims, and to Jerusalem for Christians. "There is no form of religious discrimination in Nigeria."

The report states that freedom of expression is guaranteed, including the freedom to own, establish and operate any medium for dissemination of information, ideas and opinions. However, any application for such an establishment is scrutinized to ascertain its authenticity. The guarantee of free expression "also extends to the right to advise the Government or criticize the Government constructively through the media".

Nevertheless, the freedom to receive and impart ideas and information is limited where it would involve disclosing official information marked confidential, pre-empting the decision of a competent court, operating without a licence, the report continues. It is also an offence to use any of the licensed media houses to undermine State security.

"Where any of these illegalities is detected or noticed, the State always intervenes in the overall interest of justice", the report states.

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Thus, in 1993, when the Military Government felt that some licensed media houses were inciting the public against the Government, decrees were passed proscribing those houses. In addition, "where private individuals clandestinely undermine State security, the State Security (Detention of Persons) Decree No. 2 of 1994 as amended is always used to retain the status quo".

Other practices cited as unlawful include using mass media for the purpose of propaganda for war, violence or cruelty; national, racial, social or religious exclusiveness, hostility or intolerance; the dissemination of pornography; the commission of criminal acts; or "attacks on the personal life of citizens or on their honour and dignity". The right to peaceful assembly is guaranteed, subject to the interests of public health, morality and safety. Freedom of association is restricted only in exceptional cases, as in government restrictions on civil servants.

The family -- generally meaning the extended family -- is given implicit and explicit recognition as a fundamental social institution, the report states. Marriages entered into without the free consent of the parties are regarded as void. The law recognizes three types of marriages: statutory, customary and Islamic. Customary marriages are potentially polygamous. Under Islam, every Muslim has the right to marry up to four wives, provided he can take care of them equally.

In Nigeria, discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic ties is prohibited, the report states. Further, "the Federal Government of Nigeria ensures that political parties cut across ethnic, linguistic, religious and other sectoral barriers". The Government is "making strenuous efforts to return the country to civil rule". Citizens are equal before the law, and there is equality of access to the courts.

"Discrimination against women has been taken care of in Nigeria", the report states. Further, in a multinational country with over 250 ethnic groups, "every tribe has its own language and it is free to profess and practise that language and its culture in any part of the country".

Introduction of Nigeria's Report

AUWALU H. YADUDU, Special Adviser to the President of Nigeria on Legal Matters, introducing Nigeria's report, said his country respected all of the international obligations which it had freely undertaken. Any recommendations which the Committee might offer to assist Nigeria in fulfilling its obligations under the Covenant would be given the highest consideration.

The Committee had expressed a need to know the extent to which the trial and execution of Ken Saro-Wiwa and others by the Ogoni Civil Disturbances

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(Special) Tribunal could be reconciled with the requirements of the Covenant, he said. On 21 May 1994, during a meeting called by the Council of Chief in Giokoo, four prominent Ogoni chiefs were brutally murdered by riotous youth who had been instigated and actively supported by the leadership of the Movement for the Survival of the Ogoni People.

He said the Movement was one of countless ethnic and tribal associations in Nigeria. It was founded to peacefully champion the cause of all Ogoni people. Ken Saro-Wiwa was its first Publicity Secretary. When the Movement was becoming violent, and in the wake of its decision to boycott the 1993 presidential elections, its President and Vice-President resigned and Mr. Saro-Wiwa became President.

From his assumption of leadership, Mr. Saro-Wiwa had "chosen the destructive path", he said. "He preferred confrontation to conciliation." Under his leadership, attacks were orchestrated on some Ogoni elders "pejoratively described as vultures". He made no secret of the Movement's avowed intention to eliminate about 14 such "vultures". On 21 May, the youths descended on the Gbenemene Palace and "brutally but selectively murdered all the 'vultures' present".

Following the civil disturbances that day, investigations were carried out and arrests made, he said. Consequently, the Head of State constituted the Ogoni Civil Disturbance (Special) Tribunal, which sat for over eight months to hear the prosecution's case. Delivering its judgements on 30 and 31 October 1995, it stated it was satisfied that the prosecution had proven the charges against two batches of the accused persons. Six of the accused persons were discharged and acquitted. Convicted were Ken Saro-Wiwa, Barinem Kiobel, John Kpuinen, Baribor Bera, Saturday Dobee, Felix Nwate, Nordu Eawo and Daniel Gbokoo.

He said the two judgements and records of proceedings contained a fair account of the testimony of all witnesses and those of the accused persons who gave evidence. They contained an objective review of the body of evidence. It was quite evident that the trial was conducted fairly. The accused were given all the rights and opportunities recognized under the Civil Disturbances (Special Tribunal) Act; the Constitution, as amended; and other laws of the land. While some availed themselves of such opportunities, others declined. The accused were tried under existing legislation, not retroactive law.

He said it was regrettable that counsel to some of the accused had chosen to abandon their clients midstream. However, as required by law, the Tribunal appointed defence counsel for them. The Ogoni Civil Disturbance Tribunal was not a military court martial. It had two serving High Court judges. It was governed by due process. Its proceedings were openly conducted and watched by national and international press crews. Both local and international human rights groups covered the proceedings.

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The civil disturbances engaged in by the accused led to the brutal murder of highly respected citizens of Rivers state, he said. It also posed serious security risks to peace, order and good government in the state and the entire nation. The various activities of the perpetrators also posed a serious threat to national security.

Addressing the question of whether the trial and execution of Mr. Saro- Wiwa had satisfied the requirements of the Covenant, he said the offence with which they were charged was a very grievous one. They were tried by a competent tribunal. They could seek for commutation of sentences but did not, even when called upon to make their statement prior to sentencing. The accused were accorded the right to a fair trial.

Regarding the composition, membership and jurisdiction of special and military tribunals, he said a court martial was composed purely of military officers; its jurisdiction generally extended to members of the armed forces. However, since 1976, civilians suspected of participation in a coup d'état could be tried by a court martial. Apart from a court martial, there were a variety of other tribunals recognized under the 1979 Constitution, which were established for varying purposes. Only civilians were subject to their jurisdiction.

On specific measures taken to investigate cases of summary executions, disappearances and torture, he said citizens had rights which provided a shield against such practices. Remedies were enshrined in the Constitution regarding cases of infringement. However, in the absence of specific allegations of torture, disappearances or summary executions, he was not in a position to comment on steps taken to "bring those responsible before the courts", as the Committee had requested. There were sufficient safeguards for the independence and impartiality of the judiciary.

Questions on Right to Life, Liberty, Fair Trial

OMRAN EL-SHAFEI, expert from Egypt, stressed the important role played by Nigeria in international affairs, adding that what was going on in Nigeria now saddened many people. The report was not complete. For instance, it referred to state of emergency but did not give details about it, including on derogations of rights. The judgement of the special tribunals had not been subjected to a higher court and that was contrary to the Covenant. During the trial, members of the defense team were not granted access to the accused in private, which was also not according to the Covenant. The defendants had been held under harsh conditions. Ken Saro-Wiwa had been held incommunicado, had been beaten and deprived of medical care. Several articles of the Covenant had been violated in that case. Why had the decrees, including the one which excluded the courts, been issued? he asked.

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PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, associated himself with the comments made by the expert from Egypt. Decrees he had referred to were a total denial of the rule of law. He also sought information on a decree ruling out the remedy of habeas corpus. What were the procedures prescribed for the special tribunals? Who was the competent authority? Only the President of Nigeria?

Lord JOHN MARK ALEXANDER COLVILLE, expert from the United Kingdom, said that under the laws of Nigeria or the decrees that were now in force, there was no effective appeal. He had the text of the judgement; what had been done was to extend the law of murder in a way which might be right. However, that was a matter that should be dealt with in an appellate court and such a court did not exist. Those people had been killed without the possibility of appeal, in violation of the Covenant. People were murdered in the Ogoni territory. He asked why similar events in an adjoining territory were being tried in an ordinary court. Why? he asked. Why had the choice been made to prosecute the Ogoni under the special tribunal? What was going to happen to those that were waiting to be tried by the special tribunal? During the trial, members of the tribunal and members of the prosecution had lived in the same house. Was that fair? he asked.

ELIZABETH EVATT, expert from Australia, expressed concern about the written report which did not explain the actual state of the law in Nigeria nor the de facto situation. Apparently, Nigeria was ruled by decrees that undermined constitutional rights, as decrees could override the Constitution. She associated herself with questions asked so far. The report did not address properly the question of the special tribunals and also the lack of the right to appeal. Without that right, what means did the defendants have to test whether their right had been granted or denied? In many ways it seemed that a right to a fair trial had been denied. There was a growing number of extrajudicial trials taking place. People had been murdered by police officers and those officers had not been brought to trial, she said. Why did such a situation emerge?

RAJSOOMER LALLAH, expert from Mauritius, said the decrees mentioned ousted constitutional guarantees and the jurisdiction of the courts. According to the Covenant, when fundamental rights had to be curtailed to guarantee public security, those derogations had to be done according to the Covenant. The Committee had stated in many cases that when it came to taking away the right to life, all the guarantees of the right to a fair trial had to be in place. In the course of the trial, a motion for certain witnesses to be heard had been refused, and that was a serious violation. He also asked why the cases of people in other areas accused of the same offences were being dealt with by ordinary tribunals. Who made such decisions and what were the motives? Were the motives political? He sought information on the growing number of extrajudicial killings.

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ECKART KLEIN, expert from Germany, said it was a matter of satisfaction to hear today that Nigeria had decided to respect all its international obligations. However, its report did not provide an unvarnished picture of the legal and actual situation in the country. He associated himself with the view that the key provisions of the Constitution had been set aside by a great number of decrees issued over the past decade.

"Special cases" must be seen in the context of the current general framework in Nigeria, he said. Contrary to the report, there were many cases in which no right to appeal was recognized. How could the delegation reconcile that contradiction? There were similar contradictions with regard to decrees which permitted the holding of detainees incommunicado for indefinite periods of time. How could it be stated that judicial powers were vested securely in the judiciary in view of decrees under which the composition of the tribunals were decided only by the head of State?

While the Covenant did not prohibit the death penalty, it aimed at restricting application of that penalty to the most serious crimes, he said. The applications of tribunals must be held in strict conformity with the Covenant. Clear links must be established to those who were considered to have been involved in a particular crime while not actually committing it. How was that principle applied to the trial of Ken Saro-Wiwa?

How many death sentences had been handed down by the current Government? he asked. What was the approximate number of victims of extrajudicial killings by forces of the military or police? The Committee had received information that in May and June 1994, soldiers had attacked towns and villages in Ogoni land, shooting at random and killing others intentionally. There were also reports of rapes and of homes destroyed. He cited, in particular, the case of a chief who had now been held incommunicado for two years now.

Which immediate steps had been taken to restore a situation in conformity with Nigeria's human rights obligations? he asked. Did those measures include the total or partial repeal of certain decrees to which he had referred?

FAUSTO POCAR, expert from Italy, said the answers provided by Nigeria's delegation were "not convincing for me from the legal point of view". In a general comment made in 1984, the Committee stated that the reason for the establishment of military and other tribunals was often to apply standards which did not adhere to accepted principles of justice. The relevant decrees issued by the Nigerian Government did not seem to ensure the minimum guarantees provided for under the Covenant. It did not seem that the validity of any decision of such a tribunal could be questioned in a court of law.

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Even assuming that a declaration of emergency was implied by the decree establishing tribunals, in no case could the relevant guarantees of the Covenant be suspended, as those guarantees were non-derogable.

ANDREAS V. MAVROMMATIS, expert from Cyprus, said he was pleased to hear that the government of Nigeria would seriously consider the views to be expressed by the Committee on the matter in question. It was hoped the current dialogue would lead Nigeria to take the urgent steps that were required.

He said he did not think a country needed such special tribunals as existed in Nigeria. The matters in question could be dealt with by the ordinary courts of the land. Was the Ogoni tribunal set up ad hoc, to try those accused in that particular case, or was it set up to deal with relevant cases sent to it by the head of State? That tribunal sat in open session. However, he cited another tribunal, which had been held in camera.

Under the Covenant, the death penalty could not be imposed in the absence of the right to appeal, he said. In view of the finality of the death sentence, what could be done if Nigeria's own court declared the sentence unconstitutional? Could those who had been executed be brought back to life? Public executions amounted to putting the clock back -- not by decades, but by centuries, he said. Beyond that, it was agreed that such public executions did not act as a deterrent.

JULIO PRADO VALLEJO, expert from Ecuador, said the presence of the delegation would help Nigeria to better understand the problems the international community had with events in that country. In Latin America, there were also difficulties in protecting human rights. In part, that was because there was no separation of powers. Everything was done through the executive power, which made it difficult to protect human rights. In addition to having that same situation, in Nigeria the head of State issued special decrees. There was now, apparently, constant repression in Nigeria and no dissidents. Why was that so? he asked.

There was no transitional period towards democracy, he said. Why? Why was there no open access to detainees and no recourse to habeas corpus? Everything seemed to be done through special decrees. Publications had been suspended and journalists had been detained by decree, which was also a violation of the Covenant. Military tribunals were supposed to judge military men. It was not normal for military tribunals to judge civilians. Ordinary tribunals were meant to judge civilian detainees. How were the members of the military tribunals chosen? Was it the head of State who chose its members? There was no further recourse for the accused if he or she felt the sentence was not fair? Why was that so? Indefinite incommunicado detention, which happened in Nigeria, was a gross violation of the Covenant.

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THOMAS BUERGENTHAL, expert from the United States, regretted the report had very little to do with the reality of Nigeria today. He sought information on who appointed the members of the special tribunals, and whether the military officers chosen to be part of them could be impartial. He also asked several questions about special decrees. If the information he had was correct, they were violations of provisions of the Covenant and that included information he had received on labour leaders and others held in detention without trial.

TAMAS BAN, expert from Hungary, said the report had not addressed some articles of the Covenant in the proper way and he was grateful for the oral information provided. He associated himself with concerns and questions asked by members before him. He sought further information on some of the decrees mentioned in the report. He asked whether government by decree, which seemed to be a general rule in Nigeria, had been revised or reconsidered after the ratification of the Covenant.

To which extent had the existence of the Covenant been taken into consideration after its entry into force? he asked. What was the criteria for designating members of panels to hear new cases in the special tribunals? Was the ordinary criminal code applied to the special tribunals? Were they entitled to pass a sentence of death in cases not punishable by death penalty under the criminal code? How many death penalties had been carried out in the period under review? What was the mode of execution? Were there regulations about executions in public or in private? Was there an emergency situation in Nigeria? If yes, had it been declared in accordance with the Covenant? And, also, if there was a state of emergency, what Covenant's rights had been derogated from?

NISUKE ANDO, expert from Japan, shared the concerns expressed by previous speakers, particularly those concerning Ken Saro-Wiwa, the independence of the judiciary, the rights to appeal and the right to habeas corpus for detainees. Concerning the report, he said it had not addressed certain articles of the Covenant contained in the special decision by the Committee requesting the initial report on an urgent basis. Why had the delegation stated it could be available to the Committee for just one day? That impaired the dialogue, he said.

CHRISTINE CHANET, expert from France, said the report did not give an account of a sufficient number of elements to allow the Committee to understand the realities of the country. She sought information on the circumstances of the trial and death of Mr. Saro-Wiwa, including information on the special tribunals. How were the tribunals set up? What were the different forms of murder provided in different legal texts and which one applied to that particular case? Did the tribunal decide on its own rules of procedure?

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MARCO TULIO BRUNI CELLI, expert from Venezuela, joined in expressing concern over the report and the human rights situation in Nigeria. Nigeria was governed apparently solely by the head of State and by decrees. That had been altering the Constitution, which was supposed to be the supreme law of the State. The Covenant was binding on States. Recent events referred to by other experts had violated several rights guaranteed by the Covenant. Would it be possible to have any assurance from the delegation that Nigeria would take into account all comments made by Committee members, particularly in view of other persons now being held in those special decree circumstances? he asked.

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