The ECOWAS Community Court of Justice has awarded Nigerian journalist, Mr Agba Jalingo, Thirty Million Naira (NGN30 million) as compensation for the ”moral prejudice suffered” during his arrest and detention under dehumanising conditions by the Cross River State Government for which the Court held the Federal Government liable.
Delivering judgment in a suit filed by a Non-Governmental Organisation (NGO), Socio-Economic Right and Accountability Project (SERAP), the Court held that the treatment meted out to the journalist was a ‘violation of his rights under Article 5 and 6 of the African Charter,’ and ordered that the compensation be paid through the NGO.
In the judgment delivered by Justice Edward Amoako Asante, presiding judge and rapporteur, the Court held that SERAP sufficiently established the illegal arrest and detention of the journalist under dehumanizing conditions by agents of the government.
However, the three-member panel of the Court found that the prosecution of Mr. Jalingo, who is also a publisher, under Nigeria’s cybercrime law was proper, having been done pursuant to extant laws of Nigeria, the Cybercrime, Terrorism and Criminal Code Acts.
The Court said: “It cannot therefore be, in the opinion of the Court, that charging a suspect implicated under an extant law of the Respondent duly promulgated by its National Assembly amounts to using the laws to harass, intimidate, detain, suppress, and circumvent the rights of journalists in general, and Mr. Jalingo in particular to free expression, to information, opinion and media freedom.”
“It should be noted that the application of the laws under reference is not limited to journalists as the laws have general application and anyone charged under them is at liberty to mount a defence in the court of law of the Respondent state.”
In this instant case, the Court said that it was equally unable to uphold the Mr. Jalingo’s submission that the continued existence and application of the Sections 41 and 59 of Nigeria’s Cybercrime Act, Criminal Code Act and Sections 1 & 17(2) (a) and (b) of the Terrorism (Prevention, Amendment) Act by the Nigerian government to detain, prosecute and imprison him is illegal and unlawful as it amounts to breaches of obligations to respect, protect, promote and fulfil the rights to freedom of expression and information and media freedom guaranteed under the African Charter.
In awarding the compensation, the Court also declared that the condition of Mr. Jalingo’s detention violated his right to the dignity of a human being under Article 5 of the African Charter by the Nigerian government as well as his right to liberty under Article 6 of the Charter.
The Court dismissed all other declarations sought by SERAP while the government of Nigeria was given three months within which to comply with the judgment effective from the date of notification of the judgment.
The court had earlier dismissed the preliminary objection of the government which had argued that that there is a pending criminal prosecution bordering on charges of treason and terrorism involving Mr. Jalingo before a domestic court- the Federal High Court- and that it would amount to an abuse of court process for the Court to exercise jurisdiction on the same subject matter.
The government had further contended that the publisher ought to have instituted his case of allegation of violation of his fundamental rights before Nigeria’s domestic court.
But in dismissing the objection in its entirety, the Court held that the only instance where an application for the violation of human rights will not be entertained by the Court is when the same matter is before an international court but not when it is before the domestic court of Member States as argued by the Nigerian government in its preliminary objection.
The Court held that: “As firmly rooted in its jurisprudence, the Court holds that the prosecution of the instant suit before this Court does not amount to an abuse of court process in spite of pendency of a criminal suit against the principal beneficiary of the suit, that is, Mr Agba Jalingo whose rights are being enforced therein.”
In suit no: ECW/CCJ/APP/10/20, SERAP had sued the Nigerian government for the use of Cybercrime (Prohibition, Prevention, etc) Act 2015, Terrorism (Prevention Amendment), 2013 and the Criminal Code Act to unlawfully charge Mr Jalingo before the Federal High Court in the Calabar Judicial Division of the country’s Cross River State.
SERAP averred that Mr Jalingo, publisher of the online Cross River Watch who also reports for another online newspaper, Sahara Reporters, was charged with treason for allegedly inciting the people to protest for a change of government, through the publication in his Cross River Watch, an offence punishable under section 41 of the Criminal Code Act, Cap C39, LFN, 2004.
He was also charged for allegedly causing alarm, hatred and disturbance of public peace through his publication contrary to section 59 of the Criminal Code.
During the hearing, Mr Jalingo who was led in evidence by counsel representing SERAP, Mr. Kolawale Oluwadare recounted how security officials broke into his house and arrested him after he wrote an editorial article in which he alleged that a 500-million-naira expenditure by Cross State for the establishment of a microfinance bank was diverted.
He further told the Court that he was taken by the security personnel on a 26-hour journey during which he was not allowed to dismount from the vehicle and on arrival detained at a detention facility run by the anti-cult and anti-kidnapping police for 34 days before his arraignment on 31st August 2019.
He disclosed he was detained for 179 days before being granted bail and was also charged with terrorism, an offence that attracts life imprisonment or the death penalty.
Among the reliefs sought by Mr. Jalingo were:
An order directing the Federal Republic of Nigeria to immediately drop all charges against Mr. Jalingo, his unconditional release from prison as well as an order directing the Federal Republic of Nigeria and/or their agents in Nigeria to provide effective remedies and reparation, including adequate compensation, restitution, satisfaction or guarantees of non-repetition that the Court may deem fit for his unfair prosecution by the Respondent.
At an earlier hearing, the Court had struck out the second Defendant, Cross River State from the suit, not being a proper Defendant before the Court and for not being a signatory to the ECOWAS Revised Treaty.
However, the Federal Republic of Nigeria which is a Member State of ECOWAS and a signatory to the ECOWAS Revised Treaty, through their Counsel, Chijioke Amadi filed and adopted his preliminary objection arguing that the person on whose behalf/interest the Mr. SERAP instituted the suit has been granted bail and is currently being prosecuted at a competent municipal/domestic court of the Nigerian governmemt on criminal allegations bordering on treason and terrorism.
The Nigerian government further argued that SERAP failed to disclose a reasonable cause of action to be entitled to the reliefs sought nor discharge the evidential burden placed on him in proof of his case and therefore asked the Court to dismiss the suit.
The Court had earlier struck out Cross River State from the suit, not being a proper party before the Court.
Also on the panel of the Court in the suit were Justices Dupe Atoki and Januaria Tavares Silva Moreira Costa.
