By Ben Elizabeth Effiong*
Facts of the Case
In the case, the Applicants complained of the violation of their right to freedom of association and peaceful assembly.
The first Applicant is a non-governmental organisation registered to support the cause of women and girls. The second to fourth Applicants are individuals who allege that they were key promoters of a protest scheduled for 28 March 2021 to be held in Benin City, Edo State, Nigeria. The aim of the protest was to draw Government’s attention to the hike in fuel prices, sachet water and cement and its link with monopoly. The Applicants claimed that the second to fourth Applicants and other persons traveled from different parts of the country to participate in the protest.
The claim of the Applicants was that on the day scheduled for the protest, as they assembled at the National Museum ground premises, Edo State, to coordinate the rally, security agents (the Police and DSS) of the Respondent stormed the premises and locked them in for hours. Also, that other individuals who later came to participate in the rally were locked out thus preventing them from gaining access to the venue. Consequently, the protest could not take place as planned. They stated that there was no communication prohibiting the assembly, prior to the intervention of the security agents.
It was part of their claim that the Edo State Government banned the gathering of members of Nigeria Council of Women Societies in May 2021 through a public announcement and submitted that the ban was not in accordance with the principles of legality or legitimate public purpose and was unnecessary and disproportionate to achieving any meaningful purpose within a democratic society.
The Applicants alleged that this violated their rights as guaranteed by articles 10 and 11 of the African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights. They also argued that the actions of the security agencies infringed on their rights, their best interest and that of the general public.
Reliefs Sought
The reliefs sought by the Applicants were:
(a) A declaration that the Respondent’s action of banning the peaceful assembly and the disruption of the procession organized by the Applicants infringes on their rights to assemble and associate as guaranteed in Articles 10 and 11 of the African Charter; Article 21 of the ICCPR; Section 40 of the Constitution of Nigeria, Articles 3, 10, 11 and 17(1) of the Universal Declaration of Human Rights (UDHR) and Rule 94(b) of the Guidelines on Freedom of Assembly and Association.
(b) A declaration that the Respondent has a duty to ensure the protection of the assembly slated for 28 March 2021 as guaranteed in Articles 10 and 11 of the African Charter; Article 21 of the ICCPR; Section 40 of the Constitution of Nigeria, Articles 3, 10, 11 and 17(1) of the Universal Declaration of Human Rights and Rule 94(b) of the Guidelines on Freedom of Assembly and Association.
(c) A perpetual injunction restraining the Respondent or its agents or privies from issuing any ban notice, disturbing or interfering with the rights of any person or group of persons from any part of Nigeria from holding assembly or associating with themselves as a group or part of a group in pursuance of their rights as stipulated by law.
(d) An award of five hundred thousand (500,000) US Dollars as general damages and/or exemplary damages for the unlawful denial of the rights to association and assembly of the Applicants and interest therein at ten percent (10%) per month from the date of the judgment until judgment is fully liquidated against the Respondent.
Jurisdiction and Admissibility
The court had no problem in finding that it had jurisdiction to hear the claim, given that it was based on of the African Charter and other similar provisions of the International Covenant for Civil and Political Rights (ICCPR).
On admissibility, the real issue was around the capacity of the 1st Applicant, an artificial person, to bring human rights claims before the court. Drawing from its earlier decisions on the point, the court decided that the 1st Applicant lacked the capacity to bring a claim before the court, except if the claim was brought in a representative capacity for the violation of the human rights of human persons, which the court found not to be the case in this matter. The court’s finding was based on the fact that the 1st Applicant was a beneficiary of the remedies sought from the court. As a result, the court struck out its case and proceeded with the other Applicants who were natural persons and had no impediment to their capacity to litigate human right violations cases before the court.
Merits
Before discussing the merit of the case, the court had to deal with two important issues. The first was the failure of the Respondent to challenge the suit by filing a defence, despite being served with the Application and given ample time to respond to same in accordance with article 35 of the Rules of Court. The court further observed that the Respondent entered their appearance before the Court in one of its hearings but gave no reasons for failing to file a defence. The court thus held that it was entitled to hear the merit of the case without the defence of the Respondent insofar as the claim was admissible. The court however warned itself that the absence of a defence did not relieve it of the responsibility to determine whether the claims are well founded as the absence of a defence does not result in an automatic finding for the Applicants.
The court had to strike out the name of the 1st Applicant for being incompetent to litigate the rights said to have been violated. According to the court, the “first Applicant not being an individual but a legal person and not falling within the established exceptions, nor suing in a representative capacity is not a proper party to file an action for the violation of their right to association and to assembly. The application of the first Applicant in this regard is declared inadmissible and is therefore hereby struck out”.
On the specific claims of the Applicants, the court held that the Respondent violated the second, third and fourth Applicants’ right to peaceful assembly contrary to article 11 of the African Charter. The Respondent was also held to have had a duty to ensure the protection of the assembly of the 28 March 2021 as guaranteed by article 11 of the African Charter and other international human rights instruments. On the contrary, it found that the Respondent did not violate the Applicants’ rights to association under Article 10 of the African Charter
Remedies
On remedies, the Court ordered the Respondent to refrain from preventing the Applicants from carrying out a lawful assembly except in accordance with the law. It ordered the Respondent to pay the total sum of $15,000 (Fifteen Thousand US Dollars) to the second, third and fourth Applicants as moral damages for the violation of their right to peaceful assembly.
Discussion
This case raises several issues out of which we shall discuss three, viz: (a) attribution of the conduct of an organ of a state; (b) the right of legal persons to sue in the court for human rights violations; and (c) the jurisdiction of the court to hear a case when no defence was filed.
Attribution of the Conduct of An Organ of A State
One unique feature of this case is that the Applicants were aggrieved by the conduct of the Edo State Government because it was the conduct of this government that caused the violation complained of. Those who are not familiar with the rule of state responsibility and the rule relating to the attribution of the conducts of the organs of a State to the State may rightly wonder why the proper Respondent in the case is the Federal Government of Nigeria.
The court was obviously conscious of the confusion this may create. Hence it considered it expedient to first address the raison d’etre for making the Federal Government of Nigeria the Respondent in the matter where the alleged human rights violation was carried out at the behest of the Government of Edo State. In doing this, the court recalled that it had in a plethora of cases reiterated the principle of state responsibility under international law. Under this principle, according to the court:
“…a State Party to international human right instruments is held responsible for the violation of the rights of its citizens by the conduct of any of its organ empowered to exercise elements of governmental authority. Such organ having acted in that capacity, shall be considered as an act of the State under international law even if, in the particular case, the organ exceeded its competence according to internal law or contravened instructions concerning its activity”. (citing Tidjane Konte & Anor v. Republic of Ghana (2014) CCJELR PAGE 131, paragraph 38. 42).
The court also recalled another of line of its precedent where it declared: “…a Member State as an abstract entity must necessarily act through its organs 16 made of human beings, its responsibility when questioned must a fortiori encompass the organs acting on its behalf. Thus, for the purpose of International law, though the State consists of different organs with different functions it is treated as a unit so that the action of any of these organs is considered the action of that single legal entity…” citing Col. Mohammed Sambo Dasuki (Rtd) v the Federal Republic of Nigeria ECW/CCJ/JUD/23/16 PAGE 28; Aircraftwoman Beauty Igbobie Uzezi v the Federal Republic of Nigeria Application No: ECW/CCJ/APP/32/2019; RULING NO. ECW/CCJ/RUL/01/21 Paragraph 40.
Drawing from these decisions, the court held, as it was indeed entitled to hold, that “in the instant case, the Government of Edo State, being one of the federating states of the Respondent, its actions which allegedly violated the rights of the Applicants will be attributed to the Respondent in accordance with the principle of State responsibility under international law”.
The reasoning and the conclusion of the court in this matter are sound and unassailable, given that a federating State of any of the member States of ECOWAS is not a recognised international personality under the ECOWAS regime or under international law, generally. They are not entitled to be parties to any of the legal instruments of ECOWAS and have no occasion to be directly held accountable for failure to fulfill any obligations under the legal regime.
The position taken by the court is thus in line with the current state of customary international law on the point as affirmed in article 4 of the International Law Commission Responsibility of States for Internationally Wrongful Acts, 2001, that “the conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. … An organ includes any person or entity which has that status in accordance with the internal law of the State”. It further provides in its article 5 that “The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance”.
As this and the other cases cited by the court shows, this is not to say that their conducts that violate ECOWAS obligations are passed over without legal consequences. This is where the rule of attribution comes in. Those conducts are attributed to the sovereign entity of the federal State – the organ of the State that is competent to make treaties. This explains why the Federal Government of Nigeria was the proper party in a case that arose from violations allegedly committed by the Edo State Government.
One this that the Federal Government must not do is to refuse to defend the action, as appears to have been the situation in this case, because the conducts being challenged were those of a component state. At the end of the state, it is not the State but the federal government that would be held to be in violation. On occasions like this, the proper thing to do is for the federal attorney general and the Attorney General of the state to cooperate and agree on cost and strategy. There is nothing preventing the Attorney general of the affected State to conduct the case in the name of the Federal Government.
The Right of Legal Persons to Sue in the Court for Human Rights Violations
Legal personality in law involves two questions. The first question relates to the ascertainment of who the law recognises as a person and the principles or theories that the recognitions are based. The second question relates to the extent of rights and duties the legal persons possess. It has been said that personality in the philosophical sense means the rational substratum of a human being. In law, it means a right and duty bearing entity. Personality should be distinguished from humanity. While humanity means only the natural human beings (natural persons), personality has a technical meaning, which includes inanimate objects, so that personality is wider than humanity. Sometimes, humanity and personality coincide and sometimes they do not. In the same way, there are legal persons – such as corporations – who are not human beings.
Legal persons thus refer to beings and things that are treated as persons by law. A legal person is any entity to which the law attributes personality. The law treats a legal person as right and duty bearing entity, similar in many respects to natural person. According to the Court of Appeal in Emeka Akas v. the Manager and Receiver of the Estate of Benjamin Gillet Awadike & Anor (2001) FWLR (pt.71), a juristic person in law “is either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation and vested with the capacity to sue and be sued”.
The case of Nosa Ehanire Osaghae & 3 Ors v. Republic of Nigeria ECW/CCJ/JUD/03/17 contains the view of the ECOWAS Court that “the term individual in its natural definition connotes a human person/being. But that the term has been held to also accommodate a legal person”. And that with regards to human rights violations, human rights are human centered. The importance of this, according to the court is that “as a general rule, a legal person cannot be accommodated within the term individual to bring an action for the violation of human rights under the Charter”. (paragraph 22)
Indeed, just as the human person, the legal person has capacity to come before the ECOWAS Court except that its basis of competence is more limited than that of the human person. As the court declared in this case, as an exception, a legal person can only sue for violation of certain human rights in a representative capacity on behalf of human beings; it is not competent to sue on its own behalf to benefit from human rights violations for which it is not entitled to sue. For instance, a legal entity cannot be held to have capacity to litigate the right to life on its own behalf. As the court expressly held in this case, “an action for the violation of the right to association and assembly not being within the contemplation of the established exceptions cannot be maintained by a legal person”. (paragraph 28)
Legal persons have thus been held by the Court to be competent to litigate on their own behalf, “the established exceptions [to the general rule] of right to fair hearing, right to property and right to freedom of expression”. (paragraph 28)
The Jurisdiction of the Court to Hear a Case in default of Defence.
The ECOWAS court’s decision on this point reflects the approach of international judicial bodies, as demonstrated by the International Court of Justice (ICJ) in Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States of America) Merits, ICJ Rep 1986, 14, 24, para 28, where the court held that it was entitled to proceed with the case and reach a decision in the absence of the United State of America. The ICJ made the useful point that:
A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute.
Non-appearance of a party to a case is of itself insufficient to compel an international court to decline jurisdiction. The court is entitled to determine a case in the absence of a State which, though is aware of the case, decided it would not appear to defend the claims made against it, if the jurisdiction of the court over such a defaulting State is established and the case is admissible. The approach of international courts to an event of non-appearance of the respondent, is to make a decision in default when called upon by the Applicant.
Although the case under review is not fully a case of non-appearance, the failure to file a defence, as the ECOWAS court has rightly shown, attracts the same principle. This is not the first time the ECOWAS Court is deciding a case in similar circumstances. Vision Kam Jay Investment Limited v President of the Commission & Anor ECW/CCJ/JUD/24/16, is an example of such a judgment.
Conclusion
The aim of this review, which I hope has been fulfilled, was to highlight key aspects of the judgment under review. The aspects deserving of my focus were those relating to attribution, the capacity of artificial persons in human rights cases before the court and judgments in default.
As my discussion shows, it is difficult to fault the views taken by the court in this case, given that the views are well supported by existing rules and principles of human rights law and general international law.
*Ben Elizabeth Effiong is a Law Graduate of the University of Benin, Nigeria.
(c)Centre for Community & Oceanic Law
Well explanatory. this aspect of your article I think that court (government) should abolish some of this law (code ) of the constitution