African Commission Declares Niran Malaolu’s Trial Unjust

The Commission, based in Banjul, The Gambia, said although it sympathized with the Government of President Olusegun Obasanjo over the “awkward situation” of its having to take responsibility for the violations, this did not in any way diminish the Government’s obligations under the African Charter for the violations committed prior to its coming into office.

It dismissed as untenable the Government’s defence that the trial was conducted under a law validly enacted by the competent authority at that time, saying the Government failed to show that the law was in conformity with the provisions of the African Charter.

The pronouncements were contained in the Commission’s verdict reached at its 28th Ordinary session in a complaint filed against the Nigerian Government by Media Rights Agenda (MRA) over the arrest, detention, trial and conviction of Malaolu, then Editor of The Diet newspaper, in 1998.

In the “communication” lodged with the Commission on May 25, 1998, MRA complained about Malaolu’s arrest at The Diet office in Lagos on December 28, 1997, his detention and subsequent arraignment, along with some senior military officers and other civilians, before the special military tribunal constituted under the Treason and Other Offences (Special Military Tribunal) Decree No. 1 of 1986 on charges of treason.

In its decision, the Commission upheld MRA’s contention that Malaolu’s arrest and detention as well as his trial and conviction violated several provisions of the African Charter.

The Commission held that the “failure and/or negligence of the security agents who arrested the convicted person (Malaolu) to comply with these requirements is therefore a violation of the right to fair trial as guaranteed under Article 7 of the Charter.”

On the complaint that Malaolu’s trial in secret violated his right to a fair trial, the Commission said: “considering the fact that, as alleged by the complainant, prior to the setting up of the tribunal, the Government had organised intense pre-trial publicity to persuade members of the public of the occurrence of a coup and the involvement of those arrested in connection to it, the Commission is constrained to find the exclusion of the same public in the actual trial unjustified and in violation of the victim’s right to fair trial guaranteed under Article 7 of the Charter.”

MRA had also complained that prior to his arraignment, for the 49 days he was detained, Malaolu was not allowed access to his lawyer, neither was he given the opportunity to be represented and defended by a lawyer of his choice at the trial as he was assigned a military lawyer by the Tribunal. The Commission ruled that the denial of this right to Malaolu was a violation of the African Charter.

The Commission held that the selection of serving military officers, with little or no knowledge of law, as members of the Tribunal contravened Principle 10 of the United Nations Basic Principles on the Independence of Judges and that the arraignment, trial and conviction of Malaolu, a civilian, by a Special Military Tribunal, presided over by serving military officers, who are still subject to military commands was prejudicial to the basic principles of fair hearing guaranteed by Article 7 of the African Charter.

It also held that the setting up of the tribunal for the trial of treason and other related offences impinged on the independence of the judiciary, since such offences are recognised in Nigeria as falling within the jurisdiction of the regular courts.

In the Commission’s view, it could not be said that the trial and conviction of Malaolu by a Special Military Tribunal presided over by a serving military officer, who is also a member of the PRC, a body empowered to confirm the sentence, took place under conditions which genuinely afforded the full guarantees of fair hearing as provided for in Article 7 of the African Charter.

On MRA’s allegation that Malaolu was being punished by the Military Government over news stories published by his newspaper relating to an alleged coup plot involving Lt. General Oladipo Diya, and other military officers and civilians, the Commission noted the Government’s argument that Malaolu was tried along with a number of people accused of involvement in alleged plot to overthrow General Abacha and that the trial was not a case of victimisation against Malaolu or his profession as one or two other journalists were also sentenced to imprisonment at the same trial.

But it said considering the facts at its disposal and the response of the Government, it was of the view that it was only Malaolu’s publication which led to his arrest, trial and conviction. It therefore ruled that for this reason, his arrest, trial and conviction violated of Article 9 of the African Charter as alleged.

The Commission observed that the Government did not deny MRA’s allegation that while Malaolu was in detention, he was subjected to such cruel, inhuman or degrading treatment, as having his legs and hands chained to the floor day and night and that from the day he was arrested and detained, until the day he was sentenced by the tribunal, a total period of 147 days, he was not allowed to take his bath, he was given food only twice a day, and that while detained both in Lagos and Jos before he faced the Special Investigation Panel that preceded the trial at the Special Military Tribunal, he was kept in solitary confinement in a cell meant for criminals.

The Commission said that in the absence of any information to the contrary from the Government, it was of the view that the various forms of treatments meted to Malaolu while in detention, violated his right to respect and dignity and the right to freedom from inhuman or degrading treatment guaranteed under Article 5 of the African Charter and reinforced by the UN Basic Principles.

The Commission noted that the violations took place during a prolonged military rule, saying it sympathised with the present Nigerian Government over this awkward situation but insisted that this did not in any way diminish the Government’s obligations under the Charter for the violations committed prior to its coming into office.

On the Government’s claim that the trial was conducted under a law validly enacted by the competent authority at the time and that Malaolu was charged, tried, convicted and sentenced in accordance with the provisions of that law, the Commission recalled its decision in the case of Sir Dawda Jawara vs The Gambia, where it stated that “For a state to avail itself of this plea, it must show that such a law is consistent with its obligations under the Charter”.

Saying that it was not enough for a state to plead the existence of a law and that it had to go further to show that such a law falls within the permissible restrictions under the Charter and therefore in conformity with its Charter obligation, the Commission noted that no such reasons have been adduced in this case. It therefore rejected the Government’s argument.

The Commission ruled that the Nigerian Government had violated Articles 3(2), 5, 6,7(1)(a), (b), (c), (d) of the African Charter and Principle 5 of the UN Basic Principles on the Independence of the Judiciary.

It urged the Nigerian Government to bring its laws in conformity with the provisions of the African Charter.

For further information, please contact:

Maxwell Kadiri
Legal Officer
Media Rights Agenda

Tel. & Fax: 01-4930831
E-mail: [email protected]