Media Rights Agenda and Others. v. Nigeria

Communication Nos 105/93, 128/94, 130/94 and 152/96, Decision of the AfCmHPR, 24th Ordinary Session, October 1998
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Decrees were issued in August 1993, following the annulment of presidential elections, which proscribed the publication of two magazines and officials sealed their premises. There were also frequent seizures of magazines critical of the government’s decisions and arrests of those selling them. A third decree proscribed ten newspapers published by four different media organizations. It was alleged that neither the newspapers nor their operators were previously accused of any wrongdoing, either publicly or before a court of law, and that they had not been given an opportunity to defend themselves before their premises were sealed and they were subsequently outlawed. Under a fourth decree, owning, publishing or printing a newspaper not registered under its provisions became an offense punishable with either a fine of N 250,000 or imprisonment for up to seven years or both. Any registration existing under previous legislation was thereby extinguished and decisions on registration were henceforth vested in a board which had total discretion to decide whether this was justified having regard to the public interest. There were no procedures for challenging a decision not to register a newspaper. Any newspaper registered was required to pay a fee of N 100,000 and to deposit N 200,000 into a fund to meet the amount of any penalty imposed on or damages awarded against its owner, printer or publisher by a court in the future. The previous law had only required a bond of N 500 as a surety for such penalties or damages. The provisions of the fourth decree had nearly eight weeks’ retroactive effect and, as all persons intending to own, print or publish newspapers were obliged to apply for registration within three weeks of its commencement, all newspapers were thus made ‘illegal’ and their owners, printers and publishers became liable to be arrested and detained.

In January 1994, 50,000 copies of T magazine, whose aim was to promote and protect human rights in Nigeria, were seized at the printer’s premises by heavily armed police and security officers. In addition twelve films and fourteen plates used for processing were confiscated. The issue in production was entitled ‘The Return to Tyranny – Abacha bares his fangs” and involved a critical analysis of legislation ousting the jurisdiction of the courts.

It was not possible to question in a court of law the validity of any decree made in the period concerned but the second complainant stated that the fourth decree had been declared null and void by two different courts in November and December 1993 and that the government, although not appealing against these decisions, had not respected them. The government claimed that the registration fees were reasonable and that many newspapers and magazines operated without being registered and also submitted that ouster clauses were used by military regimes as the ‘resources of litigation’ (sic) became too cumbersome for the government to do what it wanted and that, although the decree had retroactive effect, not a single newspaper had been declared illegal or harassed for violating it. I, the editor in chief of T magazine, was arrested and detained in December 1995. It was alleged that he was not told the reason and that no charge had been made against him. It was also alleged that he had been denied access to his family, doctors and lawyers and that he had received no medical help even though his health was deteriorating. The communications alleged breaches of Arts 6, 7, 9, 14 and 16. The Commission, considering that ouster clauses rendered local remedies non-existent, ineffective or illegal and finding decisions declaring the fourth decree null and void not to have been respected, found them admissible.

 

 

[Adapted from INTERIGHTS summary, with permission]

The Commission held:

(1) that, although the payment of a registration fee for payment of penalty or damages was not in itself contrary to freedom of expression, the amount should be no more than necessary to ensure the administrative expenses of the registration and the pre-registration fee should not exceed the amount needed to secure against penalties or damages against the owner, printer or publisher;

(2) that the fees required for registration in this case, while high, were not so clearly excessive that they constituted a serious restriction;

(3) that the total discretion and finality of the board effectively gave the government the power to prohibit publication of any newspaper or magazine they chose;

(4) that, as this invited censorship and seriously endangered the public’s right to receive information, there was a violation of Art 9(1);

(5) that, although it was reassuring to hear that no one had suffered under the fourth decree’s retroactivity clause, Article 7(2) prohibited not only condemnation and infliction of punishment for acts which did not constitute crimes at the time they were committed but also retroactivity itself;

(6) that the rule of law was undermined if laws were changed with retroactive effect since individuals could not know at any moment if their actions were legal;

(7) that, as potential prosecution was a serious threat since an unjust but unenforced law undermined the sanctity in which the law should be held, the fourth decree had violated Art 7(2);

(8) that the right to have one’s cause heard naturally comprised the duty of everyone, including the State, to respect and follow judgments and the disregard of the rulings regarding the fourth decree was thus not consistent with Art 7(1);

(9) that, in the absence of a derogation clause, limitations on the rights and freedoms in the AfCHPR could hardly be justified by emergencies or special circumstances;

(10) that the only legitimate reasons for such limitations were found in Art 27(2) but those must be founded on a legitimate State interest and must be strictly proportionate with, and absolutely necessary for, the advantages which are to be obtained;

(11) that it was even more important that a right should not become illusory as a consequence of a limitation;

(12) that, where libel suits enabled individuals to defend themselves should the need arise, the proscription of a particular publication by name was disproportionate and unjustified;

(13) that laws applying specifically to one individual or legal personality raised the serious danger of discrimination and lack of equal treatment before the law;

(14) that, as the proscription could not be said to be within the law, there was a violation of Art 9(2);

(15) that no evidence had been provided that the seizure of T magazine was other than for simple criticism of the government;

(16) that there was no information in it threatening to national security or public order and, if it was thought that the particular article represented merely an insult to the government or the head of State, a libel action would have been more appropriate than seizure of the whole edition;

(17) that the seizure was, therefore, a violation of Art 9(2);

(18) that the right to property necessarily included a right to have access to property of one’s own and the right for one’s property not to be removed;

(19) that, as no explanation was offered for the sealing up of the premises of many publications and as the decrees enabling this and as the seizure of the publications could not be said to be ‘appropriate’ or in the interest of the public or the community in general, there was a violation of Art 14;

(20) that ousting the jurisdiction on a broad scale reflected a lack of confidence in the justifiability of the government’s own actions and a lack of confidence in the courts to act in accordance with the public interest and rule of law;

(21) that the ouster of the court’s jurisdiction violated the right to have one’s cause heard under Art 7(1);

(22) that, in the absence of any response to the allegation that I had been arrested and detained without reasons and charges being made, the facts provided must be treated as given and there was a violation of Art 6;

(23) that the same approach applied to the allegation that I was denied access to a lawyer and there was, therefore, a violation of Art 7(1)(c);

(24) that the responsibility of government was heightened where an individual was in custody and his or her integrity and well-being was completely dependent on the activities of the authorities;

(25) that, in the absence of a response to the allegation that I was denied access to doctors while his health was deteriorating, there was a violation of Art 16; and

(26) that Nigeria should take the necessary steps to bring its law into conformity with the AfCHPR.

 

[Adapted from INTERIGHTS summary, with permission]

INTERIGHTS  Comment: This is one of two cases considered by the Commission at the same session dealing with events following the annulment  of presidential elections (see Public Participation, Constitutional Rights Project, Civil Liberties Organisation v Nigeria, infra). Although the prime object of the measures considered here was clearly to restrain publication of anything that the government considered unacceptable, the range of rights successfully invoked in this case is a classic illustration how far-reaching the impact of repression can be. The Commission perhaps took an over-relaxed view of the acceptability of the registration fee being required for newspapers; certainly it is not clear how the amount did not exceed the administrative expense of registration which was said to be the appropriate standard. It ought also to have addressed the need for a security against damages; this may be manageable where a commercial organisation is involved but it could be a significant restraint in practice on many other publications. However, it understandably condemned the basis on which registration decisions were taken for the lack of any governing criteria; such a wide discretion obviously facilitates censorship but there is a need to go further and specify that the registration process ought to be no more than a way of establishing that relevant conditions (which must be few in the case of freedom of expression) have been met. The condemnation of the decree’s retrospective effect in the absence of a specific application reflects the looser jurisdiction constraints on the Commission than other regional bodies which cannot deal with abstract questions. Its view that judgments should be executed is a valuable echo of the ECtHR’s ruling in Hornsby v Greece, (1998/9) 12 Interights Bulletin 16; without this access to a court becomes meaningless. The Commission has usefully elaborated the approach to be taken in judging whether restrictions on rights are acceptable; arbitrariness and lack of proportionality - also used by other international tribunals - are key criteria in this respect and it is not surprising that they were held not to be met given Nigeria’s lack of cooperation in the consideration of the case. The burden of justifying restrictions is rightly placed on the government and this becomes all the more exacting when existing controls seem adequate elsewhere; the significance attached to civil remedies underlines the importance of comparative analysis of the way problems are resolved when judging the acceptability of restrictions. The Commission pointed out that the AfCHPR has no derogation clause but it was probably too sweeping when it said that limitations could hardly be justified by emergencies; such a state would be a factor in assessing the proportionality of a measure. However, it is most unlikely that the measures taken here could have been justified in any bona fide emergency. The lack of explanation inevitably led to the finding of violations of the right to access to a lawyer, to liberty and to property. There is also an important reiteration of the special responsibility for the well-being of persons in detention (see also Inhuman and Degrading Treatment, International Pen and Others v Nigeria, infra and Lewis v Jamaica, (1996) 10 Interights Bulletin 143). However, on the issue of access to a lawyer, the Commission was not impressed by the fact that there were no charges against I; it saw no basis for accepting lesser rights for those detained in violation of the AfCHPR but perhaps as important is the fact that access is itself a safeguard against abuse. The view that ouster clauses rendered domestic remedies ineffective is entirely appropriate where they are comprehensive but, even if they are not, as some courts in Nigeria suggested, the failure to respect successful challenges and the general situation prevailing in that country meant that this was the only tenable approach that could be adopted.
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