THE ECOWAS Court has found the Republic of Niger liable for the violation of the fundamental human rights of a civil society activist, Illia Malam Mamane Saidat and ordered his immediate release from preventive detention and the payment of 50 million FCFA as compensation.
The Court also mandated the Nigerien government to submit to the Court within three months of the notification of the judgment, a report of the measures taken to implement its orders.
Justice Januaria Costa, the judge rapporteur, who delivered the judgment on June 23, 2021, said the arrest and detention of Mr Saidat by the government was arbitrary, illegal and violated his rights to freedom of assembly and expression as guaranteed under various articles of the African Charter on Human and Peoples’Rights, the Universal Declaration on Human Rights and the International Covenanton Civil and Political Rights.
The Court however dismissed Mr Saidat’s claims of the violation of his rights to freedom from discrimination, right to presumption of innocence and right to equality.
In suit no ECW/CCJ/APP/36/19 filed on September 26, 2019 by his lawyer, Boudal Effred Mouloul, the activist had alleged violation of his fundamental rights following his arrest and subsequent preventive detention under inhuman conditions since April 20, 2018 on allegations of committing offense of treasonable conspiracy and inciting an insurrectional movement on account of his comments on a radio programme.
He averred that the criminal charge of conspiracy was unfounded since by nature, conspiracy involves more than a person.
He further averred that a coalition of civil society groups that included his movement organised series of public and peaceful demonstrations without incidents to protest against the unpopular 2008 Finance Bill adopted by the national assembly and to demand the repeal of the Bill which imposed new and oppressive levies and taxes on the citizens.
Saidat, coordinator of the Movement for the Promotion of Responsible Citizenship, MPCR, an authorised civil structure, urged the Court among others, to declare the Republic of Niger liable for violating his rights to presumption of innocence, right to liberty, right to equality and protection, right to freedom of assembly, to think and express opinion, and the State’s failure to conduct investigation within reasonable period. He added that these rights were violated without valid reasons from the State.
He equally demanded for an order of the Court to end the violations and for fair reparation for the prejudice he suffered.
In a counter argument, the Respondent, the Republic of Niger claimed that the arrest and detention of Mr Saidat was in accordance with the provisions of Articles 78, 79 and 89 of its Penal Code as statements made during the Anfani Zinda radio interview of 26th March 2018 ‘amount to violations of conspiracy the security of the State and call for insurrectional movement that tends to overthrow a constitutional regime.’
The Respondent argued that the comments of Mr Saidat constituted a threat to national security making it a criminal law offence and in a bid to avoid a repeat of the horrifying “Charlie Protest’ of January 2015 against the Finance Bill, the investigating judge issued a warrant for his detention in accordance with Articles 131 and 132-1 of the Code of Penal/Criminal Procedure (applicable in Niger) on provisional detention.
The Respondent added that Saidat had filed a suit for his acquittal and provisional release in a national court which was dismissed, likewise his initial appeal, and that instead of further appealing judgment no 180 of 21st November 2018 of the Prosecution Chamber of the Zinder Court of Appeal, Saidat instead brought the Nigerien government before the ECOWAS Court.
He therefore urged the Court to dismiss the suit as unfounded and order the Applicant to bear the costs.
In its analysis, the Court observed that the Nigerien government merely affirmed without proving how Saidat’s comments were prejudicial to (the interest of) national security. The Court also noted that the State made no submission on the alleged violation of his right to assembly which is guaranteed by Article 11 of the African Charter, Articles 20 (1) of the Universal Declaration of human Rights, Article 21 of the International Covenant on Civic and Peoples’ Rights and Article 11 of the European Convention on Human Rights.
“Thus, restrictions on the right to freedom of assembly based on at least one of the grounds provided for and listed in Articles 11 of the African Charter and 21 of the ICCPR are permitted provided that they are (1) provided for by law; (2) serve a legitimate purpose; and (3) are necessary in a democratic society. However, the burden is on the authorities to justify any restrictions.”
On the preventive detention of Saidat, the Court stated, “It does not suffice for the State to refer in a general way to the national security interest. It should be noted that national, political or government interests are not synonymous with national security or public policy. Furthermore, the Respondent (State) must demonstrate that the restriction of the Applicant (Saidat) is in fact necessary to avoid a real danger, not a hypothetical danger… and that less intrusive measures would be insufficient to achieve such purpose.”
The Court also noted that the national court delivered its decision on Saidat’s application for provisional release outside the legal period (violating Article 9 (3) of the ICCPR).
The panel had Justices Edward Amoako Asante and Gberi-Be Ouattara.
– June 24, 2021 @ 19:00 GMT|