In Nigeria, reports and videos on social media have shown that quite a number of persons have lost their lives through unlawful acts of commission or omission by law enforcement agents contrary to the provisions of Section 33 of the Constitution.
Section 33 (1) of the Nigerian Constitution provides that every person has a right to life and no one shall be deprived intentionally of his life unless in the execution of the sentence of a court of a criminal office of which he has been found guilty.
Article 4 of the African Charter on human and people’s rights also speaks about the right to life.
It states that “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”
In this case between Ms Rose Breivigel, Ms. Elizabeth Baumerich (Applicants) and the Federal Republic of Nigeria (Respondent). The ECOWAS court of justice declared that FRN violated the deceased right to life under Article 4 of the African Charter.
What happened
- This case is that of a 50-year-old man, Desmond Nunugwo, who visited his lawyer’s office for personal legal advice but was arrested by the Economic and Financial Crimes Commission (EFCC) in Abuja. He died six hours later under unclear circumstances.
- The EFCC subsequently released a statement that the man was guilty of a crime, although he had never even been charged with a criminal offence.
- His two sisters, who claimed no effective investigation was conducted, sued the federal government demanding damages.
Who is accusing who and who was accused
The two sisters of the deceased, Ms Rose Breivigel and Ms. Elizabeth Baumerich are the applicants in this case while the Federal Republic of Nigeria is the respondent who was accused of violating the deceased right to life.
What they want from the court
- The applicants want a court order compelling the Federal Republic of Nigeria (FRN) to pay an appropriate amount as compensation for damages.
- They also want the court to declare that the killing of their brother amounts to a violation of the African Charter
- They also want the court to declare that the FRN’s failure to identify and punish those who are responsible for their brother’s death was in breach of the African Charter.
- Finally, they sought a declaration of the court that the announcement made by EFCC on the reason for their brother’s arrest infringed on the presumption of innocence and that the court should order them to retract the said statement and publicly apologise.
- The Respondent (FRN) relied on Articles 1, 4, 5 and 7 of the African Charter and asked the court to declare that they did not violate the provision of the African charter
- The FRN asked the court to decant that the applicants’ application lacks merit and they also sought an order of the court dismissing the suit in it’s entirety.
Plaintiffs argument/defendants response
The applicants (Ms Rose and Ms. Elizabeth) submitted that on 9 June 2016, their brother (Desmond) went to the law office of his attorney to obtain legal advice in a private matter; however, EFCC operatives stormed the law office and took him away.
They alleged that he was detained at the EFCC Abuja office and six hours later, he was taken to an undisclosed hospital where he was pronounced dead.
The Applicants averred that after the death of their brother, EFCC released a statement that the deceased fraudulently obtained Ninety One Million Naira (N91, 000, 000.00) from an acquaintance by false pretence, claiming that he could invest the funds in a profitable way in Dubai.
They told the court that the said press release also stated that the deceased confessed to having received the money from his acquaintance of which he transferred Thirty Million Naira into an account in Norway.
They said family members wrote letters to relevant security authorities drawing their attention to the fact that the deceased had died under unclear circumstances and therefore urged them to investigate, of which they never got responses.
On August 11, 2016, they wrote a letter to the EFCC chairman and also to the Nigerian Embassy in Germany informing them about their brother’s death
The Embassy in response informed the Applicants that the information would be passed on to the appropriate authorities.
On August 15, 2016, the applicants sent another letter to the Minister of Justice and Attorney General with a formal complaint regarding the death of their brother.
On August 26, 2016, the applicants’ lawyer sent another letter to the Minister of Justice requesting that a post-mortem be carried out by a renowned independent expert and the cause of death be established as a matter of urgency.
The applicants alleged that Despite their demands, the authorities still failed to carry out an investigation in the matter.
On February 24, 2017, the Applicants lodged a complaint with the African Commission on Human and Peoples’ Rights.
The African Commission found a prima facie violation of the African Charter and invited the parties to submit evidence and arguments which the applicants submitted on August 11, 2017, but the Respondent did not react.
The African Commission extended the deadline till January 28, 2018, but the Respondent still failed to respond.
The Applicants alleged that sometime in April 2018, an autopsy was carried out without the knowledge of the deceased family and the doctor who conducted the autopsy issued a Medical Certificate indicating ‘hypertension’ as the cause of death. The said certificate provided no additional explanation on the cause of death and no information on the condition of the deceased body.
The applicants told the court that their brother did not suffer from hypertension prior to his death.
Consequently, they averred that the circumstances leading to their brother’s death were not ascertained neither were the persons responsible for his death identified and held accountable.
They also submitted that no charges were filed, nor report issued; neither was there an apology or any compensation paid. They, therefore, approached the ECOWAS court seeking relief.
Respondents argument
The Respondent ( FRN) submitted that the deceased was taken into EFCC’s custody for the purpose of investigation and interrogation on a criminal petition filed by one Mr. Ole Nnana Kalu on June 6, 2016.
According to EFCC, the petitioner alleged that he transferred the sum of Ninety-One Million, Five Hundred Thousand Naira (N91, 500,000.00) to the deceased for the purpose of doing business with him.
The FRN alleged that while being interrogated, the deceased admitted that he received the said N91 million from Mr Kalu.
They told the court that contrary to the applicants’ claim, the deceased collapsed in less than 24 hours in custody and was rushed to the Sami Wadata Hospital where he was pronounced dead.
On June 16, 2016, the EFCC through their Director wrote to the Chief Medical Director, National Hospital requesting that a detailed post-mortem examination and toxicology analysis be conducted on the deceased to establish the cause of his death.
EFCC said it requested for a post-mortem report and also sent a letter to the Nigerian Police Force Criminal Investigation Department (FCID) requesting that an independent investigation be carried out on the matter.
FRN claimed that the FCID appropriately conducted an independent investigation into the incident that led to the death of the deceased.
On April 18, 2018, an autopsy was conducted on the deceased at the National Hospital, in the presence of the Applicants’ representatives and the Commission by an agreed Pathologist.
The autopsy report revealed that the deceased died as a result of malignant hypertension and severe hypertension cardiovascular disease and the forensic toxicology analysis also revealed no poisoning.
Consequently, FRN prayed the Court to dismiss the case as the Applicants are not entitled to the reliefs sought and there is no evidence of a violation of the Applicants’ human rights by any community officials.
What the judge ruled
- After hearing both parties, a three-member panel of justices of the Ecowas court led by Justice Edward Amoako Asante declared that the deceased right to life under article 4 of the African Charter was violated by the Federal Republic of Nigeria (FRN)
- The court also declared that FRN violated its duty to investigate and consequently, ordered the FRN to pay the sum of N20 million as compensation to the family of the deceased for all the prejudice and damages suffered as a result of his death.
- The court dismissed the applicants’ allegation of violation of the deceased right to freedom from torture by FRN and the right to presumption of innocence under Article 7.
- The court also dismissed all the reliefs sought by the Federal Republic of Nigeria in this suit.
See case source below: