ECOWAS Court President
The ECOWAS Court of Justice has dismissed a suit by Media Rights Agenda (MRA) seeking to compel the Nigerian Government to pay N10 million each to the families of 11 journalists killed over the years and declare that the Government’s failure to take effective measures to protect them was a violation of their rights to life and freedom of expression.
The court ruled that although the right to freedom of expression is a matter of public interest which MRA is entitled to approach the court to protect, the organization failed to meet other conditions required for it to maintain such a suit before the court in the public interest.
Specifically, the court said, the right to life is a private right and could not be classified as public right which MRA can defend before the court on behalf of the dead journalists while the claim for the payment of N10 million to each of the families of the deceased journalists, although not for the benefit of MRA, could also not be said to be for the benefit of the public at large, contrary to the requirement in public interest cases that the reliefs sought must be exclusively for the benefit of the public.
Human rights lawyers, Mr. Darlington Onyekwere, Ms Chioma Nwaodike, Ms Obioma Okonkwo and Mr. Sideeq Rabiu, filed the suit on behalf of MRA on August 13, 2021 over the death of 11 journalists, namely Tunde Oladepo, Okezie Amaruben, Fidelis Ikwuebe, Sam Nimfa-Jan, Samson Boyi Ohu, Nathan S. Dabak, Sunday Gyang Bwede, Zakariya Isa, Enenche Akogwu and Precious Owolabi, who were killed at different times, according to MRA, while discharging their journalistic duties or in circumstances related to the performance of their professional duties.
MRA sought the following reliefs:
• A declaration that the killing of the 11 journalists is a violation of their right to life as contained in section 33 of the 1999 Constitution (as amended), Article 4 of the African Charter on Human and Peoples’ Rights, Article 3 of the Universal Declaration of Human Rights (UDHR) and Article 6 (1) of the International Covenant on Civil and Political Rights (ICPPR);
• A declaration that the killing of the 11 journalists while carrying out their journalistic duties is a violation of their right to freedom of expression and press as contained in section 39 of the 1999 Constitution; Article 9 of the African Charter, Article 19 of the UDHR and Article 19(2) of the ICCPR;
• A declaration that the failure of the Government to adopt effective measures to protect and guarantee the safety of the journalists under Article 66(2)(c) of the Revised ECOWAS Treaty 1993 and Principle 20 of the Declaration of Principles of Freedom of Expression and Access to Information in Africa, amounts to a breach of the duty and obligation imposed on the Government by the African Charter and the Revised ECOWAS Treaty;
• A declaration that the failure of the Government to take measures to raise awareness and build the capacities of journalists and media practitioners, policymakers, and other stakeholders on laws and standards for ensuring the safety of journalists and other media practitioners in accordance with Principle 20 of the Declaration of Principles amounts to a breach of the duty and obligation imposed on the Government by the Declaration and under the African Charter;
• A declaration that the Government has an obligation under sections 33 and 39 of the Nigerian Constitution; Articles 4 and 9 of the African Charter, Principle 20 of the Declaration of Principles; Article 2(3) of ICCPR; and Article 66(2) (c) the Revised ECOWAS Treaty to carry out an effective impartial investigation as well as to prosecute and punish the perpetrators of attacks on journalists in Nigeria.
• A declaration that the failure of the Nigerian Government to take effective legal and other measures to adequately investigate, prosecute and punish perpetrators of attacks against Nigerian journalists and ensure that the victims’ families have access to effective remedies, is a breach of the duty and obligation imposed on the Government by Article 66(2) of Revised ECOWAS Treaty, Article 2(3) of the ICCPR; and the African Charter;
• An order directing the Government to take measures to prevent attacks on journalists and other media practitioners.; and to immediately carry out an effective, transparent, and impartial investigation into the murders of the journalists;
• An order directing the Government to identify, prosecute, and punish perpetrators of the attacks against the journalists and other media practitioners and ensure that victims have access to effective remedies.
• An order directing the Government to take measures to raise awareness and build the capacities of journalists and other media practitioners, policy makers, and other media practitioners; and
• An order directing the Government to pay N10 million as compensation for each of the victim’s family as reparation.
In response to MRA’s application, the Nigerian Government filed a Notice of Preliminary Objection on November 2, 2021 challenging the admissibility of the suit and claiming that MRA lacked standing to file and maintain the application on the ground that it has not satisfied the victim requirement, which entitles the court adjudicate the matter.
The Government also contended that the MRA is not a direct victim or even an indirect victim of human rights violation and cannot, therefore, maintain an action before the Court and that the application is not recognized under Article 10(d) of the Court’s Supplementary Protocol.
In its judgment delivered on March 4, 2024, by Justice Dupe Atoki, judge rapporteur, the Court noted that although the Government raised a preliminary objection on the competence of the Court to entertain the suit and the admissibility of the suit, all the arguments it canvassed related to MRA’s lack of standing to institute the action, alleging MRA’s failure to satisfy the victim’s requirement.
It said in raising an objection to the competence of the Court, the Nigerian Government “is in obvious error in its understanding of the competence of the Court” as competence is a jurisdictional issue that is settled by law.
Observing that the full jurisdiction of the Court is elaborately provided for in Article 9 of the Supplementary Protocol, A/SP.1/01/05, Article 9(4) of which is specific to the jurisdiction of the Court as it relates to human rights violation, the court stressed that MRA’s case is that the Nigerian Government has allegedly violated the right to life and freedom of expression of some enumerated journalists contrary to Articles 4 and 9 of the African Charter.
It said since MRA has alleged the violation of human rights, the Court is obliged to hear the suit without going into the merits or veracity of the allegation, as “mere allegation of a human rights violation is sufficient to invoke the jurisdiction of the Court.”
The court held that based on this analysis, it has the jurisdiction to adjudicate on the suit.
The court noted that the Nigerian Government also raised a preliminary objection challenging the admissibility of MRA’s action occasioned by its lack of standing to file and maintain the suit; MRA’s failure to satisfy victim requirement; lack of proper identification the victims and not making them a party to the action; as well as the fact that MRA did not suffer any wrong or injury directly or indirectly on which the suit can be maintained.
It said the first rule of the thumb in an action for the violation of human rights is that an Applicant who is an individual must prove a sufficient interest in the subject matter and that the essential criterion for a human rights complaint, therefore, is that the applicant is an alleged victim of the human rights violation, and he or she must prove his or her locus standi in the case.
The court noted that MRA had identified itself as a non-governmental organization and named the affected victims on whose behalf the reliefs are sought while there is no evidence of a pending case before another international court where it is seeking the same or similar remedies as those it has requested before the ECOWAS Court.
It ruled that the suit had therefore satisfied the requirements that the applicant should not be anonymous and that the case should not be pending before another international court or tribunal.
On the requirement that the applicant should prima facie be victim of the alleged act constituting the human rights violation, the Court noted that a more nuanced examination is required as the requirement of victim status, which is sometimes also referred to as “standing”, simply means that the applicant must have a legal right or other protectable interest which the conduct of the State has adversely affected or injured.
The Court recalled that it has expanded the notion of locus standi and that its numerous jurisprudence attests to that with the result that apart from the obvious case of persons who are personally and directly affected by the alleged human rights violation (“direct victims”), indirect victims may also be allowed to bring claims for human rights violation, especially where the direct victims are dead or cannot bring the claims for some other reason.
Such indirect victims, it explained, may include “immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization”
The court said to meet this admissibility requirement, an applicant must provide evidence of familial or other close relationship to the direct victim, to establish their indirect victim status.
The Court recalled that it is its settled jurisprudence that NGOs have the capacity to bring an action on behalf of victims who usually are unable to seek redress for the violation of their human rights but said only an NGO that is duly constituted according to national law of any ECOWAS Member State, and enjoying observer status before ECOWAS institutions, can file complaints against human rights violations.
Even so, it said, this is applicable only in cases where the victim is not just a single individual, but a large group of individuals or even entire communities.
The court said: “In essence, an NGO is empowered to bring an action only in respect of public-centric matters for alleged indeterminable victims. This jurisprudence has its root in the principle of Actio popularis where the interest of the public is paramount for which the applicant does not need to demonstrate that he suffered any personal injury or that he has a special interest that needs to be protected.”
Such an applicant, it explained, only needs to demonstrate that there is a public interest worthy of protection which has been allegedly violated; that the matter in question is judicious and that the legal action is not brought for the personal benefit of the applicant and the identification of the victim is not an essential requirement for such action to be brought before the Court.
But the court noted that while MRA is an NGO registered within the laws of Nigeria and seeking redress for the violation of the right to life and freedom of expression of 11 journalists, the issue to determine in considering admissibility is whether the murder of the 11 journalists is a matter of public interest for which the NGO can access the Court for redress.
It said public interest litigation serves as a mechanism to uphold and advance the collective welfare and fundamental rights of the public and that it is that consideration that informed the exemption of NGOs from establishing a victim status to enable a seamless process devoid of any constraint in achieving their public spirited intentions.
The court said further that it is therefore imperative that an action in public interest must be clearly public-centric with only the interest of the public at the heart of the action.
But it ruled that the right to life is a private right and cannot be classified as public right within the context of the operation of an actio-poluaris and that the suit therefore failed to meet the first condition formulated by the Court to maintain such action.
The court said with regards to the second condition, it requires that the reliefs sought must be exclusively for the benefits of the public to the exclusion of the personal interest of the applicant and that the claim for the payment of N10 million to each of the unnamed family members of the deceased journalists, while it is not a claim beneficial to MRA, can neither be said to be for the benefit of the public at large.
It therefore held that MRA failed the second condition.
On the third condition, the court said it requires that the victims must be indeterminable and not individuals or group of persons but a society, community or public at large.
It said it is “of the considered opinion that the invocation of the violation of Article 4 of the African Charter in respect of 11 persons allegedly murdered cannot be equated as a matter affecting the generality of the public to confer admissibility of the Application by the Court” and accordingly held that the suit, not being in consonance with Article 10(d) of the Supplementary Protocol 2005 is inadmissible as it relates to the right to life.
The court therefore upheld the Nigerian Government’s preliminary objection and ruled that the suit as it pertains to the violation of the right to life is inadmissible.
On the issue of the violation of the right to freedom of expression, the court explained that it is “of the opinion that the issue for determination is whether freedom of expression is a public-centric matter for which an actio-popularis action can also be maintained.”
In examining whether the alleged right violated is a public right, it is referred to Article 9 of the African Charter and held that the connotation of the provision is that “everybody has the right to receive, express and disseminate information or opinion and its exercise and enjoyment is available to the public at large. Therefore, the promotion of truth regarding public matters by furnishing a basis for understanding them is a public interest and public good essential to the vitality of not only the public good but also a democratic society.”
The court said: “It is incontrovertible that journalists provide the platforms that allow the public to receive information on any given matter. These platforms have expanded exponentially moving away from the traditional old analogue methods to the modern digital/internet-based platforms that provide speed and spread. The Court therefore believes that dissemination and receipt of information is a matter of public interest.”
But it ruled that although the activities of the journalists can be said to impact on the public by providing them a platform to receive information as guaranteed by Article 9 of the African Charter, a relief sought for the sole benefit of the journalists cannot be equated as one for benefit of the public.
The court said: “Since the right to freedom of expression is one that can be enjoyed by the public, the relief for violation of that right must sina quo non be for the benefit of the public. Such relief must be intended to assuage the damages caused to the community, society or groups who are indeterminable who have been proved to have suffered from the alleged violation.”
It noted that although the claim is not for the benefit of MRA, a claim for 11 persons cannot be said to be for the benefit of the public at large and consequently held that application failed to meet the second condition that require that the public must be the beneficiary of the relief sought
On the requirement that the victims must be indeterminable, the court said that the 11 journalists who are determinable cannot be regarded as a public who have suffered a widespread or systematic violation of their rights and who need to be protected and for whom a public relief can be sought.
Besides, it said, the journalists who lived in different parts of Nigeria do not constitute a community or group of people with an indeterminate number, on whose behalf MRA could institute an actio-popularis.
The Court ruled that the suit, although premised on a public right, but having been brought on behalf of a determinate number of persons and for reliefs for which the public is not the beneficiary, the principle of actio popularis does not avail MRA in maintaining the suit as such.
It held that the suit was not in consonance with Article 10(d) of the Supplementary Protocol 2005 and was thus also inadmissible as it relates to freedom of expression.
The court upheld the preliminary objection by the Nigerian Government and dismissed the suit in its entirety.
Other judges on the panel were Justice Gberi-Be Ouattara, presiding; and Justice Sengu Mohammed Koroma, a member while Dr. Yaouza Ouro-Sama was the Chief Registrar.
