HUMAN RIGHTS COMMITTEE COMPLETES FIRST STAGE OF CONSIDERATION OF REPORT OF NIGERIA

1 April 1996

Press Release
HR/CT/468

HUMAN RIGHTS COMMITTEE COMPLETES FIRST STAGE OF CONSIDERATION OF REPORT OF NIGERIA

19960401 Experts Criticize `Absolute, Arbitrary' Rule of Military; Nigeria's Representative Says Democratic Elections Will Be Held October 1998

Such practices as arbitrary arrest, torture, extrajudicial executions, indefinite incommunicado detention, and bans against appealing tribunal decisions in Nigeria were cited this afternoon, as the Human Rights Committee concluded the first part of its consideration of Nigeria's initial report on its compliance with the International Covenant on Civil and Political Rights.

"Depriving the people of the democratic process is in fact depriving it of its soul", the expert from Jamaica said. In Nigeria, the head of State was "an absolute, arbitrary ruler" -- comprising the executive, the legislature and the judiciary. When would the rule of the military regime in Nigeria come to an end? he asked.

In Nigeria, a tribunal could be composed by the executive for particular purpose, and with no right to appeal, the expert from the United States said. "Just because it is called a tribunal doesn't make it a tribunal" in terms of the Covenant. If such a body condemned a person to death, that constituted an extrajudicial execution.

The expert from India expressed concern over decrees that gave the head of State power to override the Constitution. The expert from Ecuador stressed that there was no way to ensure respect for the Covenant without freedom of expression. The expert from Italy called on the government to refrain immediately from establishing any new tribunals, as their elimination was a precondition to re-establishment of the rule of law.

Speaking on behalf of Nigeria, Auwalu H. Yadudu, Special Adviser to the President, said the present military administration had indicated it did not intend to stay in power perpetually. It had arisen out of circumstances in which the nation found itself and would return the country to democratic elections in October 1998. It had established an electoral commission and would, in 1998, hand over the governing of the nation to democratically elected officials.

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Mr. Yadudu thanked the experts for their candidness in addressing what they saw as violations of the Covenant but questioned their sources of information. He disputed allegations of the torture and said that, under Nigerian common law, it was in fact possible to appeal a tribunal decision. He would faithfully communicate to the Government the concerns expressed by the Committee.

Statements were also made by the experts from Mauritius, Cyprus, Germany, Australia, Hungary, Venezuela, Japan and France. The expert from Costa Rica, the Committee Chairman, also spoke. Also addressing the Committee was the Deputy Permanent Representative of Nigeria.

The Committee will meet again at 10 a.m. Tuesday, 2 April, to consider the submission of reports in accordance with the Covenant. It will resume its consideration of Nigeria's report during its next session, in July 1996.

Committee Work Programme

The Human Rights Committee met this afternoon to conclude its consideration of the initial report of Nigeria on its compliance with the International Covenant on Civil and Political Rights. (For background, see Press Release HR/CT/467 of 1 April.)

Statement by Committee Member

LAUREL FRANCIS, expert from Jamaica, expressed sorrow at what was happening now in Nigeria. It was hoped that the delegation would convey the Committee's concerns to the military Government. That Government's decision to set aside the final stage of the presidential elections some years ago was a gross violation of the Covenant.

"Depriving the people of the democratic process is in fact depriving it of its soul", he said. The military had gone on to promulgate a decree which, in effect, deprived the Nigerian nation of its heart, leaving the nation critically wounded. The fact that the delegation of the military Government was present before the Committee augured well for the country's revival.

Current Nigerian law sought to consolidate power with the presidency, he said. It precluded any court of law from looking into whether the head of State had consulted with the Provisional Ruling Council. That made of the Head of State "an absolute, arbitrary ruler". The President was the executive, the legislature and the judiciary -- a fact which emerged from the facts surrounding the execution which took place earlier this year.

Unhappily, that was the framework within which the Covenant existed in Nigeria today, he said. Citing a provision of Nigerian law, he asked, when a decree was promulgated by sound or on television, did it have real legal effect? When would the rule of the military regime in Nigeria come to an end?

A recent report from Amnesty International stated that a co-defendant of Ken Saro-Wiwa showed the Ogoni Civil Disturbances (Special) Tribunal scars he had received from beatings during detention. He said he was stripped naked, flogged, and forced to swallow teeth knocked out by beatings. He had gone on to say that all political prisoners were held incommunicado, in harsh conditions with inadequate food. There had also been reports of medical neglect amounting to ill-treatment.

Response by Nigeria

SAM A. OTUYELU (Nigeria) said his delegation would give the Committee the accurate information it required.

AUWALU H. YADUDU, Special Adviser to the President of Nigeria on Legal Matters, thanked the Committee for their candidness in addressing what they saw as violations of the Covenant. He raised a question about the Committee's

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sources of information, and what reliance it placed on various sources of allegations. He would dispute the allegations of the torture of accused persons, particularly with regard to the Ogoni 19. The proceedings in the court were open, and there was no record of such allegations.

While he was not aware of the allegation that the prosecution and members of the Tribunal lived in the same house, he could look into that, he said. As to the jurisdiction of courts being ousted by decrees, he said decrees containing ouster clauses did exist. However, such clauses were often modified or repealed "at the appropriate time" and it did not follow that when decrees contained such ouster clauses, courts were completely excluded from inquiring into a decision.

As an example, he cited the case in which The Guardian newspaper was proscribed under a decree which contained an ouster clause. The Guardian went to court, which declared it was subjected to that clause. It then appealed that ruling to a higher court and was successful. Such a process was possible under Nigeria's common law system.

Replying to questions on how fair the trial of Ken Saro-Wiwa had been, he said that as far as domestic law was concerned, the provisions of the law had been satisfied. There was a military member in the three-person Tribunal. It was true that there was no appeals process, a point that was recognized in Nigeria and he had taken note of the Committee's comments on the matter. The Civil Disturbances Tribunal dealt with fighting between communities, as those cases were not handled well by the civil courts. Whenever there was a massive disturbance within or between ethnic groups, or religious disturbances, the decision was made to establish such a tribunal.

He could not say whether another tribunal would be constituted for the trial of the other suspects of the Ogoni 19 or they would be taken to a regular court. He then addressed in detail references by experts that Chief Moshood Abiola had been subjected to unlawful detention.

He said it was erroneous to consider Chief Abiola's situation as that of detention. Chief Abiola had been brought before a court for having declared himself president when the final result of an election had not been declared. As soon as arraigned, he had applied for bail in a proper way. As the trial progressed, his lawyers appealed. As that was going on, the judge made some statement that Chief Abiola said lacked impartiality. The judge then withdrew from the case. Another judge was appointed. As soon as he assumed responsibility for the case, some issues were brought up, including whether Chief Abiola was being tried at the proper venue and also matters related to bail. When the judge was about to make a decision, lawyers for Abiola said that they were also suing the second judge on the grounds of bias, because he was a card carrying member of another party. The matter went to the court of appeals which gave Chief Abiola bail under certain conditions.

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He added that before the first judge was withdrawn, he had given bail to Chief Abiola. However, his lawyers said that the bail was fraudulent and he declined. His appeal went to the Supreme Court. As the Court was to hear his appeal, his lawyers said the justices could not be fair to him. Blaming the Government would be a mistake. Chief Abiola was in jail because of court orders, and he had not received bail because of his lawyers.

Certain names mentioned by Committee experts as those of detainees were not in jail and he had last week met with some of them. No newspaper in Nigeria had ever reported that the Ogoni people had been killed in an extrajudicial way.

Continuing, he said the present military administration had already indicated that it did not intend to stay in power perpetually. The Government had declared that it arose out of circumstances in which the nation found itself and would return the country to democratic elections in October 1998. It had established an electoral commission which only last week conducted democratic municipal elections and had activities lined up for the remainder of the current year.

He said that, in 1998, the administration would hand over the governing of the nation to democratically elected officials. The Government had also established an autonomous, national human rights commission which included representation by independent non-governmental organizations, newspapers and individual citizens. He would faithfully communicate to the Government the concerns expressed by the Committee. The Committee, for its part, should be fair in its assessment of the facts.

Comments by Members

RAJSOOMER LALLAH, expert from Mauritius, said Mr. Yadudu had acknowledged many of the situations which were of concern to the Committee. Who decided what actions would be taken in a given situation? What criteria were those decisions based upon? In view of the existence of ouster clauses, what would be done to ensure the independence of the Tribunal, especially when one of its members was a colonel?

ANDREAS V. MAVROMMATIS, expert from Cyprus, expressed appreciation for the delegation's candidness. However, nothing was said about the special military tribunal which tried treason and other offences. The delegation was close enough to the source of power in Nigeria to plead for efforts to bring current practices in line with the Covenant. Referring to the continuing consideration of Nigeria's report, scheduled for July, he said, "Tell us, when you come next time, the good news that things have been taken care of."

ECKART KLEIN, expert from Germany, asked how the normal courts could deal with the decrees if one could not appeal to them, for example with regard to the ouster clause?

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ELIZABETH EVATT, expert from Australia, said it was agreed that there was no appeal to an independent court for a Tribunal decision. Neither was there any opportunity for commutation or pardon. That was incompatible with the Covenant. The delegation had not addressed the concern that the defendants were held in detention for nine months prior to being charged and were denied access to their attorneys. She requested clarification of the issue that was before the court when The Guardian case was appealed. What investigations had been undertaken of allegations of torture? What prosecutions had been launched?

THOMAS BUERGENTHAL, expert from the United States, said he was the member who had characterized the Saro-Wiwa case as one of extrajudicial execution. How would the delegation characterize a case in which a tribunal was composed by the executive for a particular purpose, in which one of its members was subject to military orders, and where there was no right to appeal? "Just because it is called a tribunal doesn't make it a tribunal" in terms of the Covenant. If such a body condemned a person to death, that constituted an extrajudicial execution, he said.

TAMAS BAN, expert from Hungary, sought clarification on the ouster clause. Under the decree applicable, did accused persons have the right to request the court to review jurisdiction? he asked.

Response by Nigeria

Mr. YADUDU, Special Adviser to the President of Nigeria on Legal Matters, said there were provisions in the law to punish those who were guilty of torture or ill-treatment. Nigeria was a common law country, and judges had inherent judicial power to review legislation. The special tribunals might make recommendations for commutation. In 1986 there had been a coup d'etat that had led to the establishment of the decree that civilians could be tried by military courts. The Civil Disturbances Tribunal was not a standing tribunal.

Concluding Observations

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, said the comments by the Committee should be seen as constructive criticism. He expressed concern over decrees that gave the head of State power to override the Constitution. There were very harsh provisions concerning incommunicado detention which violated Covenant provisions. The criteria for appointment of members and judges of the Civil Disturbance (Special) Tribunals, like the one that had tried Mr. Saro-Wiwa, was unknown and also a matter of concern. Also a matter of concern were robbery and fire arms tribunals. According to information he had, 200 persons had been executed by those tribunals and there was no right of appeal to them.

He was also concerned that arbitrary rule by decree had been further strengthened by the current military Government. Mass executions in public

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were also a matter of concern, and he knew of some cases that he qualified as barbaric. The trial of Ken Saro-Wiwa had not been conducted according to the Covenant's provisions on fair trial.

JULIO PRADO VALLEJO, expert from Ecuador, said the delegation had not informed the Committee how Nigeria's domestic laws were in accordance with the Covenant. On the contrary, many of the decrees cited violated the Covenant. By means of decrees, a state of emergency could be continued, prison sentences dictated, and the internal life of Nigeria determined. Article 2 of the Covenant stated that domestic legislation must be harmonized with the Covenant. That had not happened. In Nigeria, the President determined what courts should be established and who should serve on them. That was an open violation of the Covenant.

Article 14 of the Covenant asserted the rights of defendants to choose their own counsel, he said. In Nigeria that did not exist. Would Nigeria alter its laws to bring them into line with the Covenant? Even prior to sentencing, individuals were held in detention incommunicado indefinitely in Nigeria. What was to be done about that practice? Extrajudicial executions violated the Covenant. What would the authorities do to bring their practices in line with the Covenant?

There was no way to ensure respect for the Covenant if there was no freedom of expression, he said. Habeus corpus was neither recognized nor practised in Nigeria. Article 14 of the Covenant was crucial, yet the delegation had not addressed its requirements. It was not complied with at all. There must be fair trials, with competent, independent courts, and all the internationally recognized rights for defendants. "We have heard nothing about any of this." Was there any procedure to investigate allegations of torture against defendants? Precise information was needed on what the Government was doing to comply with the Covenant.

FAUSTO POCAR, expert from Italy, said that in many cases, Nigeria's delegation had merely dismissed allegations of torture and extrajudicial execution. That was not enough. The Government had an obligation to investigate such allegations. It was not enough to say that newspapers had not published anything about those allegations.

He said he shared the views of Mr. Buergenthal, expert from the United States, regarding extrajudicial killings. Also, "summary", "extrajudicial" and "arbitrary" executions were considered as being fully equivalent. The term "arbitrary", as used in the Covenant, meant an act was not in accordance with the Covenant's aims and provisions.

He said he was happy the delegation had acknowledged that the special tribunals were not in accordance with Covenant standards and that the matter was being looked into in Nigeria. He recommended "firmly" that the Government immediately repeal such tribunals. The practice was to establish such tribunals on a case-by-case basis. The Government should immediately refrain

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from establishing any new tribunals. Elimination of such tribunals was precondition to the re-establishment of the rule of law.

ANDREAS V. MAVROMMATIS, expert from Cyprus, thanked the delegation for the replies provided, which had brought new facts to certain cases, such as that of Chief Abiola. However, some of the questions had not been answered. The decree that had created the special tribunals should be looked into and made consistent with the Covenant. He suggested that perhaps their operations should be suspended by decree. Public executions must not continue and while looking into it, the method of execution should also be investigated. Death by hanging was one of the most obsolete methods. Perhaps one of the most humane was by injection. He added that he was against the death penalty.

ECKART KLEIN, expert from Germany, expressed the hope the dialogue with the Committee would help Nigeria in complying with its treaty obligations and also ensure a life with dignity for Nigerians. There were serious deficiencies in the domestic legal order, such as lack of appeal, ouster clauses and lack of independence of judges. Those provisions were not in conformity with the Covenant. He had not been convinced by the delegation's explanations. He called on Nigeria to repeal the decrees in order to bring its legal system in conformity with the Covenant.

Reliable sources had provided information about Nigeria, including Amnesty International, he continued. It was the duty of the Government to deal with those concerns in its report. Nigeria had missed the opportunity to tell the Committee and the world at large that the allegations were not true. Decrees and special tribunals were clear indications of a situation not characterized by the rule of law. He was not convinced by the clear denial that the violations of the Covenant had not happened at all.

ELIZABETH EVATT, expert from Australia, said there was a rule by military decree in Nigeria and that was not rule of law. The concern was not with the legality under Nigerian law, but also with compliance with the Covenant. The Ogoni case had been a case of non-compliance with the Covenant. The special tribunals were also a violation of the Covenant, whatever their composition. The lack of an appeal's process was a particularly serious violation. There was a need for a complete review of the law and of the courts to bring them into line with the Covenant.

RAJSOOMER LALLAH, expert from Mauritius, said that what the Committee had heard "was a little depressing". By decrees, the President could suspend the guarantees of the Constitution. The information provided on the special tribunals in relation to the Covenant had not explained anything. When the Committee talked about arbitrariness, it was not just procedural arbitrariness, but also substantive arbitrariness. He expressed the hope the delegation would take the Committee's message to the Nigerian Government.

MARCO TULIO BRUNI CELLI, expert from Venezuela, said that acceding to the Covenant gave prestige, but also carried obligations. That was the reason

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for today's dialogue. Those decrees had been issued precisely when Nigeria had acceded to the Covenant. The special tribunals with military involvement began before the Ogoni case. It was important to make sure that would not happen to others. Also, there had been a denial of torture. If it was not possible to have the answer now, at least the message should be conveyed to the Government.

NISUKE ANDO, expert from Japan, said that it might be necessary in an emergency situation to rely on decrees, but that should be done in conformity with the Covenant. Nigerian frontiers had been drawn by colonial powers and that caused many problems in Africa. The past helped to understand present difficulties. However, the past did not justify non-compliance with international obligations.

TAMAS BAN, expert from Hungary, said the delegation had stated many times that there was no contradiction between the Covenant and the Constitution. However, the issue was the domestic legal order and compliance with the Covenant. He called on the Nigerian Government to look at the Covenant, as such, and make a compliance study. The system of derogations of articles must be fully studied.

CHRISTINE CHANET, expert from France, said the Committee was not satisfied with the examination of the law and the picture was somber. Adherence to the Covenant meant compliance with its provisions. There could be no derogation of certain articles. The special tribunals had been established on an ad hoc basis and there was no appeal. She suggested that the cases mentioned by Committee experts should be investigated.

Mr. YADUDU (Nigeria) said he had nothing to add to his replies. He had benefitted from the dialogue. He then referred to a Department of Public Information (DPI) press release according to which Committee members had expressed concern that the Nigerian delegation "would seek to filibuster" during the consideration the report. Such a remark was unhelpful. He called on the Committee not to draw precipitate conclusions about the report. The Secretary-General had offered to send a fact-finding mission to Nigeria and the Government had accepted. Perhaps it would be advisable to wait for the outcome of that mission's work, as it would collect information on the ground.

FRANCISCO JOSE AGUILAR URBINA, expert from Costa Rica, and Chairman of the Committee, referring to the statements on "expected filibustering", said the Press Releases were not official documents of the Human Rights Committee. They were documents produced by press officers. It was not the position of the Committee that the Nigerian delegation would filibuster the Committee today. If any member of the Committee had expressed that view, that was still not the official position of the Committee. The bureau had not issued such affirmation. A document with concluding observations on the first part would be issued at the end of this session, and another set of conclusions dealing with the second part would be produced after the consideration of the remainder of the initial report in Geneva.

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