The ECOWAS Court of Justice has dismissed as inadmissible a suit by Media Rights Agenda (MRA) seeking to compel the Federal Government to investigate and prosecute the murderers of seven journalists killed between 1986 and 2010 and pay N10 million to each of their families. The court ruled that although 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.
Although the Court noted that all the remedies sought by MRA were in favor of the alleged victims rather than for the organization’s benefit; that they are aimed at ensuring that murders and other forms of intimidation of journalists are not repeated, thereby guaranteeing them safety in the exercise of their profession; and that MRA did not seek any compensation for itself, it held that before it can bring the case before the Court, MRA had “to obtain authorization from all the family members of the alleged victims, who may be their wives, husbands, fathers, sons or brothers.”
In a judgment delivered on May 30, 2024, virtually in open court, in accordance with Article 8 (1) of the Court’s Practice Directions on Electronic Case Management and Virtual Court Sessions, 2020, the Court composed of Justice Gberi-Be Ouattara, presiding; Justice Dupe Atoki, member; and Justice Ricardo Claudio Monteiro Goncalves, a member and Judge Rapporteur, said it had no option but to dismiss the suit as MRA does not have the locus standi (standing to sue) before the court since it did not have authorization from family members of the late journalists before submitting the matter to the court.
The deceased journalists named in the suit by MRA as those whose human rights were violated are Mr. Dele Giwa, murdered on October 19, 1986; Ms Bolade Fasisi, murdered on March 31, 1998; Mr. Edward Olalekan Ayo-Ojo, murdered on June 1, 1999; Mr. Omololu Falobi, murdered on October 5, 2006; Mr. Godwin Agbroko, murdered on December 22, 2006; Mr. Abayomi Ogundeji, murdered on August 17, 2008 and Mr. Edo Sule-Ugbagwu, murdered on April 24, 2010.
By an Originating Application, accompanied by eight exhibits, lodged in the Court’s Registry on November 24, 2021, by then Head of MRA’s Legal Department, Ms Chioma Nwaodike, leading Abuja-based lawyer, Ms Augusta Yaakugh, the organization sought the following reliefs:
- A declaration that the murder of the seven journalists is a violation of Article 33 of the Nigerian Constitution, 1999, as amended; Article 4 of the African Charter on Human and Peoples’ Rights (ACHPR); Article 3 of the Universal Declaration of Human Rights (UDHR); and Article 6 (1) of the International Covenant on Civil and Political Rights ICCPR);
- A declaration that the murder of the journalists in the performance of their journalistic duty constitutes a violation of Article 39 of the Nigerian Constitution; Article 9 of the ACHPR; Article 19 of the UDHR; and Article 19(2) of the ICCPR;
- A declaration that the failure of the Federal Government of Nigeria to take effective measures to protect and ensure the safety of the journalists pursuant to Article 66 (2) (c) of the Revised ECOWAS Treaty of 1993 and principle 20 of the Declaration of Principles on Freedom of Expression and Access to Information in Africa, constitutes a breach of the duty and obligation imposed on the Government by the ACHPR and the Revised ECOWAS Treaty;
- A declaration that the Federal Government’s failure to take measures to sensitize and build the capacity of journalists and other media practitioners, policymakers and other stakeholders on laws and norms to ensure the safety of journalists and other media practitioners, in accordance with principle 20 of the Declaration of Principles on Freedom of Expression and Access to Information in Africa, constitutes a breach of the duty and obligation imposed on the Government by the Declaration and the African Charter;
- A declaration that the Federal Government has an obligation, pursuant to 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 the ICCPR; and Article 66(2)(c) of the Revised ECOWAS Treaty to carry out an impartial and effective investigation and prosecute and punish the perpetrators of attacks on journalists in Nigeria;
- A declaration that the Federal Government’s failure to take effective legal and other measures to properly investigate, prosecute and punish the perpetrators of attacks against Nigerian journalists and ensure that the families of the victims have access to effective legal remedies, is a breach of the duty and obligation imposed on the Government under Article 66(2) of the Revised ECOWAS Treaty; Article 2(3) of the ICCPR; and the ACHPR;
- An order instructing the Federal Government to take measures to prevent attacks on journalists and other media professionals; to immediately carry out an effective, transparent and impartial investigation into the murders of the seven journalists, who were killed while carrying out their journalistic work or in circumstances related to the performance of their duties as journalists; and to identify, prosecute and punish the perpetrators of attacks against journalists and other media professionals, and to ensure that victims have access to effective remedies;
- An order directing the Federal Government to take measures to sensitize and build the capacity of journalists and other media practitioners, policy makers and other stakeholders on laws and standards to ensure the safety of journalists and other media practitioners; and
- An order instructing the Federal Government to pay the sum of N10 million as compensation to each victim’s family as reparation.
In its judgment, the court noted that the facts claimed by MRA and which constitute the cause of action, allegedly occurred on October 19, 1986, in relation to the alleged murder of Mr. Dele Giwa; on March 31, 1998 in relation to the alleged murder of Ms Bolade Fasasi; and on June 1, 1999 in relation to the alleged murder of Mr. Edward Olalekan Ayo-Ojo.
It said although the Court’s 2005 Additional Protocol conferred jurisdiction on it in matters of human rights, it did not establish anything as to the possibility of its retroactive application.
The Court therefore ruled that following the principle of non-retroactivity of the treaties, arising from Article 28 of the Vienna Convention on the Law of Treaties, the Court’s jurisdiction in matters of human rights is limited to facts that occurred after January 19, 2005, the date of the Protocol’s provisional entry into force.
It said the facts, as invoked by MRA, show precisely in time when the alleged infringements on the human rights of the alleged victims took place, and that they do not result in any situation of “continuous” violation of the alleged human rights and are therefore “instantaneous” acts that were exhausted in their practice long before the Court was given jurisdiction to judge human rights violations perpetrated in ECOWAS Member States.
Accordingly, the Court held that for these reasons, it does not have jurisdiction to hear the case in relation to the alleged murder of Mr. Dele Giwa, Ms Bolade Fasasi, and Mr. Edward Olalekan Ayo-Ojo and dismissed the application in relation to them.
With regard to the other alleged victims, namely Mr. Omololu Falobi, Mr. Godwin Agbroko, Mr. Abayomi Ogundeji and Mr. Edo Sule-Ugbagwu, whose alleged murders occurred, respectively, on October 5, 2006, December 22, 2006, August 17, 2008 and April 24, 2010, the Court noted that MRA’s allegations are based on a violation of their human rights, contrary to the relevant provisions of the African Charter and other international instruments for the protection of human rights, in particularly the ICCPR and the UDHR, as alleged.
Accordingly, the Court said the case falls within the scope of its jurisdiction under the terms of Article 9 (4) of its Protocol A/Pl /7/91 as amended by the Supplementary Protocol A/SP.1/01/05, to entertain cases of human rights violations that occur in any Member State.
The Court therefore held and declared that it has jurisdiction to hear the case with regard to these alleged victims, namely Mr. Omololu Falobi, Mr. Godwin Agbroko, Mr. Abayomi Ogundeji and Mr. Edo Sule-Ugbagwu.
It noted that as an NGO, MRA could only have brought the case before the court on the basis of an actio popularis (in the public interest), since it did not qualify either as a direct victim or as an indirect victim.
The Court explained that “A matter is of public interest when it affects the wider well-being or common good of society, encompassing the general population or society as a whole. It covers all members of a community or the general public and not specific individuals or groups.”
But it said in the light of this concept, it is beyond doubt that MRA’s claim of the violation of Article 4 of the African Charter in relation to the murder of the four journalists cannot be equated with a matter affecting the general public, in order to make the application admissible by the Court.
The Court ruled that the murder of the four journalists was, therefore, not a matter of public interest, in this sense, adding that no authorization to MRA by a family member to bring the case before the court was presented to the Court.
It said: “Therefore, the Applicant (MRA), who acts on behalf of the victims in a matter that is not in the public interest and without authorization to do so, does not have the status of a victim and lacks the standing to bring the present action. Consequently, the application does not comply with Article 10(d) of the 2005 Additional Protocol and cannot therefore be admitted.”
The Court noted that the right to freedom of expression is fundamental and essential for human fulfillment, adding that “Without the right to freedom of expression, the most basic of our freedoms would be denied, such as the right to think and share our opinions with others, the right to freedom of association, assembly, conscience and participation in public affairs, education or health, etc., and is therefore a fundamental condition for democracy.”
Besides, it said, “A democratic system could not be consolidated without the full and effective participation of citizens in the context of a free and democratic society. In order to participate, it is essential to have access to means of expression, as well as access to information that allows people to make decisions about the society in which they want to live. We are clearly dealing with a right with a clearly collective nature, aimed at a generality of people, which can be defended on the basis of the principle of actio popularis, since it is a right inherent to the democratic rule of law itself, and it is not possible for such a State to exist without freedom of expression.”
The Court noted that all the remedies sought by MRA are in favor of the alleged victims rather than for the organization’s benefit and are also aimed at ensuring that murders and other forms of intimidation of journalists are not repeated, thereby guaranteeing them safety in the exercise of their profession.
Besides, it said, MRA did not seek any compensation for itself.
But the Court held that the suit as it related to the violation of the right to freedom of expression, could only be brought in a representative capacity, but noted that MRA had no power of attorney for this purpose.
It said: “In order for the Applicant (MRA) to be able to bring the present action, both in respect of the alleged violation of the right to life and the alleged violation of the right to freedom of expression, it had to obtain authorization from all the family members of the alleged victims, who may be their wives, husbands, fathers, sons or brothers, all of whom fall within the category of indirect victims, before submitting its application to this Court.”
The Court declared that it has jurisdiction to hear the case in respect of the victims identified as Mr. Omololu Falobi, Mr. Godwin Agbroko, Mr. Abayomi Ogundeji and Mr. Edo Sule-Ugbagwu but dismissed the entire suit as inadmissible.
