By Orimogunje Samuel Temitope
Introduction
It is not novel that the protection of Human rights stands as a cornerstone of modern international law, Human Rights are the most fundamental property inherent to every human, irrespective of their nationality, gender, race, religion or any other status. These rights are indivisible, inalienable and universal that forms the foundation of international human right. Various international instruments have also adopted these rights and they have been accepted in almost all the jurisdictions of the world, ranging from the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights 1966, African Charter on Human and Peoples’ Right 1982 and so many other international law instruments. The African Charter catalogues the rights recognised and accepted as the Organisation of African Unity (OAU), now the African Union (AU) as a common standard of rights enforceable against member States and intended to be enforced by the national Courts of the States. Perhaps, because all member States of the Economic Community of West African States (ECOWAS) are also members of the AU, the ECOWAS, like other regional bodies in Africa has not adopted its own catalogue of rights; rather, it adopted the African Charter as it Charter of rights through article 4(g) of its 1993 Revised Treaty. This analysis examines a landmark decision by the ECOWAS Court of Justice concerning blasphemy laws in Nigeria, specifically addressing the case brought by the Incorporated Trustees of Expression Now Human Rights Initiative against the Federal Republic of Nigeria.
This case presents a compelling illustration of the complex interplay between freedom of expression, freedom of religion, the right to life, and public order considerations within a multicultural and multi-religious society. It also highlights the evolving jurisprudence on actio popularis (public interest action) within the ECOWAS legal system and its implications for access to justice in human rights matters.
The significance of this case extends beyond its immediate parties to address fundamental questions about the compatibility of blasphemy laws with international human rights standards. Blasphemy laws, which criminalise expressions deemed offensive to religious beliefs, exist in various forms across the African Continent and have been the subject of increasing scrutiny by human rights bodies.
In Nigeria, these laws have resulted in severe penalties, including death sentences and lengthy imprisonments, as well as extrajudicial killings by non-state actors against individuals alleged to have committed blasphemy.
Between 2015 and 2023, several high-profile cases in northern Nigeria, including those of Yahaya Shariff Aminu, Muhammad Mubarak Bala, Rhoda Ya’u Jatau, Deborah Samuel Yakubu, and Bridget Patience Agbahime, have brought international attention to this issue.
The ECOWAS Community Court of Justice has overtime dealt with human right issues as the article gives it jurisdiction; by the virtue of Article 9(4) of the ECOWAS Protocol on the Court as amended by ECOWAS Supplementary Protocol and Article 10(d) of the same Court’s Protocol as amended by the 2005 Supplementary Protocol which further qualifies the conditions of this jurisdiction to be of public interest or Proof of victim status that will grant the Applicant “locus standi” for a successful claim. See (Lawrence H. Jothan and 13 Others v Federal Republic of Nigeria. ECW/CCJ/JUD/33/21, Sawadogo Paul & 3 Ors v Republic of Burkina Faso ECW/CCJ/JUD/07/20, Daniel Agada Okoh & 42 Ors. v Federal Republic of Nigeria ECW/CCJ/JUD/04/2I, Ebere Anthonia Amadi & 3 Ors v. The Federal Government of Nigeria ECW/CCJ/JUD/22/19, Tahirou Djibo & 3 Ors v TheRepublic of Niger ECW/CCJ/JUD/13/2020).
A matter is of public interest (actio popularis) as described by the Court is said to be a matter of not just an individual or private person, but a matter that affect the wider well-being or common good of the community, encompassing the general population or society as a whole. It covers all members of a Community or the general public. See (Incorporated Trustees of Media Rights Agenda of Federal Republic of Nigeria ECW/CCJ/JUD/07/24, The Registered Trustees of Jama’a Foundation & 5 ors v Federal Republic of Nigeria & 1 Or. ECW/CCJ/JUD/04/20).The Court also recognizes representative action in deserving cases. Thus, where there is a violation of human rights and the aggrieved lacks the financial capacity to institute such action, a representative suit can be brought to the Court through an NGO. The difference between the two basis of jurisdiction is that the Applicant in a representative action must obtain an authority to act from the aggrieved person(s), usually a small group (or even an individual) See (Rev. Solomon Mfa & 11 Ors v Federal Republic of Nigeria & 5 Ors, ECW/CCJ/JUD/06/19, Concerned Youth of Ganta for Reconstruction and Development & 1 Or v The Republic of Liberia ECW/CCJ/RUL/06/2020). For actio popularis, as in the case under review, for instance, the Applicant needs not obtain authority to act, as the action is for the public, provided the benefiting sector of the public is capable of being envisioned.
Fact of the case
The Applicant, The Incorporated Trustees of Expression now Human Rights Initiative a Non-Governmental Organisation on the 25th September 2023, initiated an action against the Federal Republic of Nigeria as the Respondent, accusing the latter of using the provision of blasphemy in its statute to violate the freedom of expression, by arresting, detaining, imprisoning and imposing death penalty on its citizens as well its failure to prevent extra judicial killings by mobs of persons allege to have committed blasphemy. The Applicant argued that over the years, the Respondent has been quiet over the abuse of human rights in its territory and additionally there has not been any consequence faced by the perpetrators.
The Applicant brought the notice of the Court to the case of Yahaya Shariff Aminu a 22-year-old music-studio assistant, who was arrested in Kano for recording and sharing via WhatsApp a song talking about Prophet Muhammad, an act interpreted to be blasphemy under Section 382(b) of the Kano State Sharia Penal Code Law 2000. The Upper Sharia Court in Kano on 10 August 2020 found him guilty and sentenced him to death by hanging. The Applicant also recalled the case of Muhammad Mubarak Bala, a 40-year-old atheist and then-president of the Nigerian Humanist Association, who was arrested in Kaduna and transferred to Kano State after posting messages on his Facebook platform in March 2020 that were alleged to be blasphemous, Bala was tried under Section 382(b) of the Kano State Sharia Penal Code and was sentenced by the Kano State High Court to 24 years’ imprisonment. Also the peculiar case of Deborah Samuel Yakubu, a second-year home economics student at Shehu Shagari College of Education in Sokoto, on 12 May 2022, who was seized by student mobs, stoned and burned to death on campus grounds, because she was accused of making comment which the students saw as blasphemy. She had criticised the posting of religious messages in her WhatsApp study group.
With this grief still in the heart of the public and bedlam in the northern part of the country, Rhoda Ya’u Jatau, a 45-year-old health worker in Bauchi State spoke about humanity and condemnation of the unjust killing. Prior to 20 May 2020, she was arrested for forwarding, via WhatsApp, a video condemning the jungle justice and mob lynching of Deborah Samuel Yakubu. She was charged with blasphemy, inciting public disturbance, exciting contempt of religious creed and cyber-stalking under Sections 114 and 210 of the Bauchi State Penal Code and Section 24(1)(b)(i) of the Cybercrime Prohibition and Prevention Act 2015; she was released on bail in December 2023 pending the continuation of her trial. Also another claim for Mrs Bridget Patience Agbahime, a 74-year-old Christian street vendor, on 02 June 2015 was seized and beaten to death by a mob in downtown Kano as they accused her of blasphemy because she stopped the ablution done in front of her shop, and this was done before any judicial process could occur. The Applicant highlights that these violations are in contravention of the right of the public and Article 8 of the African Charter on Human and Peoples’ Rights makes provision for the freedom of religion (Incorporated Trustees of Media Rights Agenda v Federal Republic of Nigeria ECW/CCJ/JUD/07/24). The Applicant argued that this violation of the freedom of expression is in two ways. Firstly, the Respondent violated the freedom of expression by its consistent failure to prevent the use of criminal provisions on blasphemy to arrest, arbitrarily detain, unlawfully prosecute, imprison and impose death sentences on citizens and secondly, that by its failure to prevent extra-judicial killings by mobs, of persons alleged to have committed blasphemy in its territory, the Respondent has violated the freedom of expression.
The Applicant sought five reliefs and any other consequential order that the Court deems to be fit. The first relief was for the Respondent to ensure the right to freedom of religion, expression and life as guaranteed in the Charters. Secondly, That the extra judicial killing of people on the ground of blasphemy within the territory of the Respondent is clear violation of human rights and Article 14 of the International Covenant on Civil and Political Rights. Thirdly, that the extra judicial killings of persons and the Respondents’ failure to prevent such is a contravention of the Respondent’s obligations under the United Nations Convention against Torture. Fourthly, a declaration that the penalty of death for blasphemy is not justifiable in democratic society and lastly, an order directing the repealing or amendment of Section 382(b) Kano State Sharia Penal Law 2000 and Section 210 of the Penal Code Law of Kano State.
The Respondent, in its defense, argued that it is not responsible for any human right violation alleged by the Applicant and it complies with every regional and international obligations. The Respondent further argued that it is a federal and democratic state and component states have law making powers to ensure peace and order. The Respondent also avers and brought up the defence of public order, that Yahaya Shariff Aminu and Mubarak Bala were prosecuted, pursuant to Section 382(b) of the Kano State Sharia Penal code 2000, and Section 114 and Section 210 of the Penal Code of Kano State which are laws enacted by the Kano State House of Assembly. It further elucidates that these laws were enacted before their prosecutions and they were not retroactively tried under them. It also states that the arrest of Rhoda Jatau was in pursuant to an organic law valid in Nigeria and not contrary to the constitution of the country or the African Charter on Human and Peoples’ Rights. The Respondent pleaded for the case to be struck out on the grounds of lack of jurisdiction and the lacking merit.
Decision of the Court.
The Court Affirms that it has jurisdiction to hear the matter as provided for in Article 9(4) of the Protocol of the Court A/P.1/7/91 as amended by Supplementary Protocol A/SP.1/01/05, which provides the Court competent jurisdiction to determine cases relating to the violation of human rights in any member State. Upon reviewing the Applicant’s claim, it held that the right to freedom of religion provided for by Article 8 of the African Charter is considered a personal set of beliefs and as such it is not to be seen as a public matter and cannot be a subject of an actio popularis application. Addressing the other plea, the Court also states that the right to life provided for under Article 4 of the African Charter gives the individuality of this right as every human being is guaranteed the respect to his life and the integrity of it. It connotes the individuality of this right to be enjoyed by an individual and the deprivation of that life and the ensuing loss is solely that of the deceased and cannot be imputed as a loss to the public. In essence, a right to life is not one that can be held by the public and so this claim of right to life cannot be brought under the actio popularis application. See (Incorporated Trustees of Media Rights Agenda v Federal Republic of Nigeria ECW/CCJ/JUD/07/24).
Regarding the final claim, the Court held that the right to freedom of expression as provided for in Article 9 of the African Charter is a public right and everybody has the right to receive, express and disseminate information or opinion. 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. Thus, this right can be instituted under the actio popularis application. See (Incorporated Trustees of Media Rights Agenda v Federal Republic of Nigeria, ECW/CCI/JUD/07/24). Having determined that the rights to life and freedom of religion are private rights, the Court reasoned that there is no evidence before it to suggest that the violations of these rights have affected a large section of the public. Therefore, the allegations of violations of the right to life and freedom of religion in this case can only be brought by the victims or any concerned party, as the application of actio popularis brought by the Applicant will not qualify it for a public matter. See (Isaac Mensah v Republic of Ghana ECW/CCJ/JUD/30/24).
On the merit of the case, the Court reviewed the Applicants’ relief on the freedom of expression and found them to be of public interest. The Court in its wisdom notes that Section 210 of the Penal Code of Kano State and Section 382(b) of the Kano State Sharia Penal Code Law are not federal statutes, but of Kano State, a federating unit within its territory of the Respondent. Thus, in line with the international obligation of States, the Respondent in the instant case will assume any liability that may be ascribed to Kano State. The Court also states that Yahaya Shariff Adamu was arrested for posting statements, on a WhatsApp group audio, that were considered blasphemous to Prophet Muhammad. The message Adamu posted is seen to be sensitive to the religion. This is similarly to the case of Mubarak Bala who was also sentenced to 24 years’ imprisonment on April 28, 2020 by the provision of Sections 114 and 210 of the Penal Code Law of Kano State. The Court accepted that the right to freedom of expression in Article 9(2) of the Charter, is not absolute and it must be exercised in accordance with conditions imposed by the law of each member State. (See Gabriel Messan Agbeyome Kodjo v Togolese Republic ECW/CCJ/JUD/11/2022.)
Similarly, that Article 19 of the International Covenant on Civil and Political Rights(ICCPR)provides for freedom of expression, but recognises that it may be subject to certain restrictions, which must be provided by law and are necessary either for the respect of the rights or reputations of others; or for the protection of national security, public order, public health or morals. The Court reckoned that Section 210 of the Penal Code of Kano State and section 382 (b) of the Kano State Sharia Penal Code Law of 2000 seeks to prevent a breach of peace, which could be occasioned by any expression that incites contempt of any religion. The Court noted that religion is a sensitive topic that could provoke emotional outbursts as individuals defend their deeply held religious beliefs or objects of worship, which could consequently lead to a breakdown of public order.
It emphasised, on the other hand, that any restrictions imposed by the State on the exercise of freedom of expression must not jeopardise the right itself. It affirmed, in this vein, that Article 27(2) of the African Charter has a qualifying precedent in that the prevention of breakdown of law and order falls within the ambit of collective security contemplated in Article 27(2) of the African Charter as a legitimate reason for limitation of rights.
The Court therefore held that Section 210 of the Penal Code of Kano State and Section 382 (b) of the Kano State Sharia Penal Code Law of 2000 pursues a legitimate aim but is vague in the word construction, as these words are unclear and are not precise, because they do not clearly set out the parameters of the conduct that is prohibited.
The Court expressed the view that laws that limit freedom of expression must be predictable, reasonable, and must define the parameters or elements of the purported crime.
The Court therefore found that Section 210 of the Penal Code of Kano State and Section 382(b) of the Kano State Sharia Penal Code Law of 2000 seek to limit the freedom of expression, but does not satisfy the test of legality and its penalty is not proportional and necessary in a democratic society. See (The Incorporated Trustees of Laws and Rights Awareness Initiatives v Federal Republic of Nigeria, ECW/CCJ/JUD/07/24.)
In consequence, the Court declared that Section 210 of the Penal Code of Kano State and Section 382 (b) of the Kano State Sharia Penal Code Law of 2000 are incompatible with the obligation of the Respondent under Article 9 (2) of the African Charter, and Article 19 of the International Covenant on Civil and Political Rights.
The Court took to the reliefs sought by the Applicant which were some declaratory reliefs in the forms of satisfaction and guarantee of non- repetition, and an order to repeal or amend the laws of the Respondent, as well as orders to ensure prevention of extrajudicial killings and facilitate religious tolerance.
Conclusion
Indeed, while respect for religious beliefs is important, it should not come at the cost of free speech, justice, and human dignity See (The Registered Trustees of the Socio-Economic Rights and Accountability Project v Federal Republic of Nigeria, ECW/CCJ/JUD/12/22; Association Des Blogueurs De Guinee & 3 ors v Guinea, ECW/CCJ/JUD/38/23.) Since the Court has found that the Respondent has violated its human rights obligations to guarantee the freedom of expression, the general principle of law applies that any violation of an international obligation that has produced damage entails the obligation to make reparations. See (Advocaid v Sierra Leone, ECW/CCJ/JUD/33/24).
One thing that must stand out in this case is the seeming visitation of the sins of a federating unit, Kano State, on the Nigerian State by the ECOWAS Court. This is however in tandem with international law, given that, in the Nigerian federation, specifically, federating States lack international personality and are thus not parties to the Protocol of the Court and the international human rights instruments relied upon. Their acts and omissions are therefore regarding as those of the Nigeria States, whose organs international law sees them to be. See (Mainu Hamdalilahi Islamic Center Limited v. Niger State ECW/CCJ/RUL/03/16).
As in previous cases, the ECOWAS Justice has upheld human rights of citizens of member States as fundamental principles enshrined in various international law instruments. This case illustrates how international community assumes jurisdiction to intervene in the violation of human rights within the municipality of member States. Although this judgment seems incomplete by the refusal of the Court to address some pressing issues, such as the jungle justice suffered by Deborah Yakubu and Mrs Bridget Patience Agbahime who were gruesomely murdered and till date there has been no arrest or sanction for the perpetrators of these crimes.
It would have been beneficiary to the demands of justice for the Court to strongly condemn those conducts with a view to deterring as its failure to do that will only encourage religious fanatics to carry out more jungle justice. But it is a laudable effort by the Court in its action towards the call for amendments of the blasphemy law and should be seen as a progressive step toward the protection of human rights in the region and member States.
Orimogunje Samuel Temitope holds an LL.B Degree from the prestigious University of Benin, Nigeria.
What a beautiful piece.