Sharon Ogbuehi*
It was on the evening of 28 March 2022, when news began making the rounds that a train carrying 970 passengers en route from Abuja to Kaduna was attacked and bombed by terrorists and armed bandits at about 7:45 p.m. near Rigasa, Kaduna State. Several passengers were abducted and taken into the bush by terrorists who arrived on motorbikes armed with weapons and other dangerous ammunition. Eyewitness accounts also stated that the train was attacked and bombed, while the terrorists shot at the passengers. The Nigerian Railway Corporation estimated that the number of passengers on board at the time was 970. In the immediate aftermath, 26 passengers were declared missing, with over 150 passengers unaccounted for on 2 April 2022.
The Applicant told the court that after the first train attack of 20 October 2021, several warnings to take preventive measures to provide adequate security for passengers on the train in that zone, including suspending late train services, were ignored by the Respondent. It also claimed the Respondent had intelligence information about the pending attack of 28 March 2022 but took no preventive measures. This allegation was supported by a newspaper publication annexed to the Applicant’s application. The Applicant then concluded that the attack and the consequential deaths and abduction of passengers were due to the negligence of the Respondent.
These facts constituted SERAP’s complaint before the ECOWAS Court of Justice in the case under review, seeking the following declarations, among others:
- That the Respondent’s failure and refusal to prevent the bombing of the Abuja–Kaduna train and the attendant loss of lives and continued abduction and/or disappearance of passengers amount to a violation of Articles 1, 4, 6, and 12 of the African Charter on Human and Peoples’ Rights to which the Respondent is a State Party.
- That the Respondent’s failure and refusal to respect, protect, promote, and fulfil the human rights of passengers and their family members amount to a fundamental breach of its human rights obligations and commitments under the African Charter on Human and Peoples’ Rights and other international human rights instruments to which Nigeria is a State Party.
- That the failure and/or refusal of the Respondent to provide the public with information on the identities of the passengers who were killed, abducted, and/or are still missing following the bombing of the Abuja–Kaduna train amounts to a breach of the rights to life, security, and freedom of expression and information as guaranteed under the African Charter on Human and Peoples’ Rights.
It also sought various orders, including an order directing the Respondent to identify all the passengers, victims, and their families, and to pay adequate monetary compensation of N50 million to each of the passengers, victims, and their families.
In its application, SERAP argued that the 28 March 2022 train attack was not the first terrorist attack in Kaduna, citing previous attacks in the airport, schools, churches, the civilian population, and infrastructure. Kaduna, according to SERAP, had been plagued with such attacks by terrorists for a while before the incident, without a substantial response by the Nigerian government to prevent these attacks.
It argued that despite the warnings after previous attacks, and the intelligence information that anticipated the attack on 28 March 2022, the government failed to be proactive and thus failed to protect the people once again from that tragic event.
In conclusion, SERAP submitted that the omission and inaction of the Nigerian government in these circumstances were a dereliction of constitutional and international obligations to guarantee the right to life, security, and dignity of its citizens.
The Respondent’s Position
The Respondent resisted the claim in its entirety and urged the court to dismiss it for want of jurisdiction, lack of merit, and being unsubstantiated.
The Jurisdiction of the Court
The court considered whether it had jurisdiction to hear the matter and, following its established jurisprudence, founded its jurisdiction in the case on the fact that the Applicants alleged violations of human rights, based on international instruments ratified by the Respondent. Categorically, the court declared, inter alia, that the “mere allegations of human rights violations are sufficient to invoke its human rights jurisdiction.”
Admissibility
On admissibility, the court considered the three main requirements under Article 10(d) of the Protocol of the Court, namely:
- The applicant’s victim status or standing;
- The non-anonymity of the application; and
- The non-pendency of the matter before another international court or tribunal. See Aziagbede Kokou & Others v. Republic of Togo [2013] CCJELR 167, para. 18.
The court found that the application satisfied the last two requirements, given that it was not anonymous and was not pending before another international court.
The case, however, failed to satisfy the first requirement. To come to this conclusion, the court recalled that the general understanding of victim status or standing under Article 10(d), as confirmed by the Court’s jurisprudence, is that Applicants must demonstrate that they are, prima facie, victims of human rights violations attributable to the Respondent. In other words, they must show they have been injured by the conduct of the Respondent and therefore have a personal interest or stake in the matter. See Amnesty International Togo and Others v. The Togolese Republic ECW/CCJ/JUD/09/20, paras. 31–33.
The court noted exceptions to the general rule, viz:
- Actions brought by indirect victims (i.e., persons closely related to the direct victim and who potentially suffer indirect consequences of the human rights violation);
- Representative action brought by an individual or NGO on behalf of an individual victim or a group, with the authorisation of such individual or group; and
- Interest actions (actio popularis) brought by NGOs or public-spirited individuals for the public good.
The court found that none of these exceptions applied. It accepted that relatives of direct victims of violations of human rights can bring an action before it on behalf of such victims.
See The Registered Trustees of Jama’a Foundation & 5 Ors v. Federal Republic of Nigeria & 1 Or. ECW/CCJ/JUD/04/20.
However, it found that as the Applicant had no family or other close personal relationship with the direct victims (Attipoe Kuaku v. Sierra Leone, paras. 42–43; SERAP v. Nigeria [2014] CCJELR 33, para. 16), it lacked the standing to sue under this exception.
The court took a similar view of the representative action exception, under which an applicant, authorised by virtue of a power of attorney, may represent another person or group whose legally protected interests have been harmed.
See Bakary Sarre and 28 Others v. Mali ECW/CCJ/JUD/03/11, para. 37.
As there was no such authorisation for the Applicant in this case, the court could not find a basis for the case under this exception.
Actio Popularis (Public Interest Actions)
Expectedly, actio popularis dominated the court’s analysis of admissibility. The court began by noting that the Applicant asserted that it “has filed this suit in the public interest” and hence, “its claims are properly situated before this Honourable Court.”
This required the court to re-emphasize the conditions that must be met for public interest litigation to satisfy the threshold requirements of admissibility, namely:
- The rights alleged to have been violated must be established as capable of being held by the public and not as private rights;
- The reliefs sought must be for the exclusive benefit of the public, to the exclusion of the personal interest of the Applicant (except when the Applicant is a member of the community or group concerned); and
- The victims, while not determinable, must, for the purposes of award or reparation, be capable of being envisioned or envisaged by the Court.
See Incorporated Trustees of Media Rights Agenda v. Federal Republic of Nigeria, ECW/CCJ/JUD/15/24, at para. 118.
Having stated the requirements, the court clarified that: “The gist of a public interest action is that it is a suit characterized by a cause of action that any member of the public may be entitled to litigate. In other words, the facts or incidents underlying the case create a legal claim in which the public collectively has an interest. Essentially, the public interest encompasses concerns that affect the well-being and rights of the general public or a significant part of society. To this end, the breach of collective or public rights (such as the rights to a healthy environment, self-determination, or development), which are by their nature held and enjoyed collectively or communally, are the primary catalysts for public interest actions.” (para. 46).
Relying on its previous decision in Isaac Mensah v. Republic of Ghana (ECW/CCJ/JUD/30/24), para. 76, the court reaffirmed that individual rights generally held and enjoyed by each person individually may also form the basis of public interest actions where the alleged breach has injured the public or a large, indeterminate section of it. For instance, if a state were to order the closure of all religious buildings or seal its borders on grounds deemed unjustifiable or disproportionate, or failed/neglected to implement necessary biosecurity measures to prevent the outbreak or spread of a deadly and contagious viral disease, a public interest action could be occasioned, albeit for the violation of private rights.
On the justification for public interest actions, the court anchored on “the harm or injury caused to the general public or a large, indeterminate segment of it, even though the rights at stake, such as the rights to worship, movement, life, and health, are typically individual rights.” (para. 47).
Court’s Analysis and Decision
Returning to the facts of the present case, the court noted that the Applicant sought the protection of the right to life, the right to liberty and security of the person, and the right to dignity guaranteed under relevant provisions of both the African Charter and the ICCPR. However, the court also observed that the Applicant’s case did not assert that the alleged breach of these rights had injured the general public or a large, indeterminate section of the public.
It was also the case, as further noted by the court, that of the overall 970 passengers on board the attacked train, the Applicant provided the names of some of the passengers who were killed. The court then concluded that “this is a case in which the victims are determinate and identifiable. Accordingly, since the present suit focuses only on the 28 March 2022 train attack, whose victims are determinate and fairly identifiable” (para. 50), the court was not persuaded that the suit was brought in the public interest to enforce private rights based on the alleged breach injuring the general public or a large, indeterminate section of the public.
Also worthy of note was the court’s consideration of the nature of remedies sought, observing “that in a public interest action, the remedies or reliefs sought, including any pecuniary relief, must be for the benefit of the public generally, not the applicant or a small identifiable group.” The court concluded that the remedies sought by the Applicant did not fulfil the public interest requirement because the Applicant requested orders.
- Directing the Respondent to identify all the passengers, victims, and their families, and to pay adequate monetary compensation of N50 million to each of the passengers, victims, and their families.
These reliefs and others requested in the application were specifically meant for the benefit of the identifiable victims of the 28 March 2022 train attack, rather than for the general public.
Dismissing the application in its entirety, the court stated that: “The totality of the facts presented by the Applicants is for a claim for alleged violation of individual human rights of victims who are not only identifiable but also determinable and on whose behalf certain reliefs are sought. The Applicant’s claim that their action is premised on public interest, therefore discarding the requirement of victim status, is, in the opinion of the Court, an indication that the Applicant misunderstood the context of the application of an actio popularis or at best misapplied the principle in this case.
In view of the fact that actio popularis is a public-centric action and public interest has not been found to be at the center of this application, its admissibility as a public interest action does not avail the Applicants. The proof of victim status, which is a prerequisite to admissibility, remains sacrosanct.
Consequently, the Court holds that the Applicants, not being victims, cannot maintain the instant application.”
An Appraisal of the Decision of the ECOWAS Court of Justice
The decision of the ECOWAS Court in this case is consistent with its established interpretation of Article 9 and Article 10(d) of the Supplementary Protocol. Paragraph 51 of the judgment reflects the Court’s settled position that where the declarations sought are tied to specific, identifiable victims, the affected individuals or an authorized representative must be parties to the action. This approach can be seen in Afolabi v. Nigeria (2004), where the Court dismissed actions for lack of standing because they were linked to named or identifiable victims without proper representation. In this case, Afolabi v. Nigeria (2004) ECW/CCJ/APP/01/04, the ECOWAS Court dismissed the applicant’s claim because he lacked locus standi (legal standing). The applicant tried to sue in the public interest without showing that he was a direct victim or had proper authorization to represent victims. The Court stressed that where specific and identifiable victims exist, only those victims (or authorized representatives) can bring the action.
While there have been notable cases in which SERAP and other NGOs successfully brought public interest actions, such as SERAP v. Nigeria (Education Funds case, 2010) and SERAP v. Nigeria (Badia East eviction case, 2017), those were admissible because the reliefs sought were framed broadly for the general public, without reference to specific victims. In contrast, the present case directly concerned the victims of the Abuja–Kaduna train attack, and the declarations sought were for their benefit. Furthermore, in Incorporated Trustees of Media Rights Agenda v. FRN, ECW/CCJ/JUD/15/24, the Court clarified the requirements for public interest litigation (actio popularis). It held that for such an action to be admissible:
1.The rights alleged must be collective or capable of being held by the public (not just private rights).
2.The remedies sought must benefit the public generally, not just specific individuals.
3.Even if the victims are not named, they must be capable of being envisioned or determinable for purposes of redress.
Serap’s case did not fulfill the requirements of this precedent. The case didn’t satisfy the victim status, the compensation of 50million for each of the victims were tied to families and private individuals, and it was beneficial to private individuals not the general public. The Afolabi’s case was one of the earliest ECOWAS cases to establish the principle of victim status with was relied on in this case.
While there have been notable cases in which SERAP and other NGOs successfully brought public interest actions such as SERAP v. Nigeria (Education Funds case, 2010) and SERAP v. Nigeria (Badia East eviction case, 2017) which were admissible because the reliefs sought were framed broadly for the general public, without reference to specific victims. In contrast, the present case directly concerned the victims of the Abuja–Kaduna train attack, and the declarations sought were for their benefit.
By striking out the matter on admissibility grounds, the Court did not depart from precedent but rather applied the same legal threshold it has consistently maintained. This reinforces the principle that public interest litigation under Article 10(d) must be truly public in scope, or else satisfy the victim-status requirement through proper joinder of parties.
Conclusion
This case shows the fine but important difference between true public interest cases and those that, while filed for the public, are really tied to specific victims. SERAP’s aim was to hold the Nigerian government accountable for the Abuja–Kaduna train attack, but leaving out the affected individuals or someone authorized to represent them cost the case. The Court’s reading of Article 10(d) follows its earlier position where victims were identifiable, but it also shows how procedural gaps can stop the court from even hearing serious human rights claims. In future, groups bringing such cases must be careful to frame their requests properly, so that technicalities do not block justice, and so they are not restricted from holding the defendant accountable.
*Sharon Ogbuehi is a graduate of law from the University of Benin.
