➥ CASE SUMMARY OF:
Festus A.O. Ogwuche Esq. & Anor. v Federal Republic Of Nigeria (FRN) (2018) – ECOWAS
by “PipAr” B.C. Chima
ECOWAS – ECW/CCJ/JUD/31/18
➥ JUDGEMENT DELIVERED ON:
11th day of December 2018
➥ AREA(S) OF LAW
Jurisdiction of ECOWAS Court;
Freedom of speech.
➥ NOTABLE DICTA
⦿ MERE ALLEGATIONS OF HUMAN RIGHTS VIOLATION TRIGGERS THE COURT JURISDICTION
Para. 46: “Mere allegation of Human Rights violation as opposed to the veracity of the claim has been held by this Court in decided cases, to be sufficient enough to trigger its jurisdiction to adjudicate on allege violation of Human Rights provided for in the African Charter on Human Rights.”
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Edward Amoako ASANTE
Hon. Justice Dupe ATOKI
Hon. Justice Januaria Taveres Silva Moreira COSTA
⦿ FOR THE CLAIMANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
The Plaintiffs in their originating application dated 31st March, 2015 applied for the enforcement of their Human Rights to freedom of speech and free press allegedly violated by the Defendant.
Plaintiffs allege that they received a letter from the Defendant through its agency titled; “Additional Regulations for live Political Broadcasts” dated May 30, 2014, addressed to all Broadcasting Houses, with directives that the National Broadcasting Commission must be given 48 hours prior notification before airing any live political Programme. The letter allege that contents of the political live programs which are inciting, provocative, highly divisive and threaten the unity and peace of the country are been transmitted.
Plaintiffs further allege that the Defendant followed up the letter with threats of withdrawal of their broadcast licenses, outright closures of broadcast outfit, direct censorship of all broadcast materials and seizure of broadcast equipment of any organization that does not comply with the directives in the said letter.
The Plaintiffs aver that the Defendant stopped their live interview broadcasts on Radio and Television Stations including social media, thereby hampering the Plaintiffs’ program on social advocacy for good Governance and Human Rights.
Plaintiffs aver that the Defendant was intimated about the unlawfulness of their action and requested for specific proof of any repeated abuse of Programme transmission that threatens the peace and unity of the country to which there was no response.
➥ ISSUE(S) & RESOLUTION
I. Whether the Court has Jurisdiction to adjudicate on this case?
RULING: IN PLAINTIFF’S FAVOUR.
Para. 50: “This Court is hereby satisfied that the Subject matter of the case being on Human Rights violation, is sufficient to activate its Jurisdiction to adjudicate on this matter and the Court so hold.”
II. Whether there is any violation of the Human Rights of the Plaintiffs to Freedom of Speech/Expression?
RULING: IN PLAINTIFF’S FAVOUR.
Para. 56: “interference with the Right to freedom of expression and the Right to hold free opinions in any media constitutes a violation of Human Rights of the Plaintiffs to freedom of expression.”
Para. 60: “This Court finds that the letter of Additional regulations from the Defendant directing the Plaintiffs to submit their Political Live programs for vetting 48 hours 10 before broadcast every time, cast excessive burden upon the Plaintiffs and violates their rights to freedom of speech and expression.”
Para. 64 – 66: “The Plaintiffs requested for proof of inciting and divisive programme content that may fall within the exception provided for by the law to warrant the closure of their outfit but the Defendant never advanced any one. The Defendant has failed to establish proof of Plaintiffs’ media programs which constitutes a threat to National Security, Public Order, or Public health and morals, to justify the internationally recognized exceptions within the law, in which freedom of expression may be restricted. Having reviewed all the circumstances of the evidence before it, the Court finds that there is a violation of the Rights of the Plaintiffs to freedom of expression as alleged.”
Para. 68 – 72: “After a careful review of the case, The Court, sitting in public and having heard the uncontroverted submission of the Plaintiffs, Decides as follows:- Declares it has jurisdiction to hear this matter which is premised on allegation of violation of Human Rights. Finds that the freedom of speech of the Plaintiffs has been violated by the Defendant and grants the declarations sought by the Plaintiffs in paragraphs 23, 24, 25, 27 and 28 in this judgment. Order the withdrawal of the said Defendant’s letter titled “Additional Regulation for Live Political Broadcasts” dated May 30, 2014. Restrains the Defendant from further violations of the Plaintiffs’ Human Rights to freedom of Expression.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Article 9 of the African Charter on Human and Peoples’ Rights;
Article 19 of the International Covenant on Civil and Political Rights (ICCPR);
➥ REFERENCED (CASE)
⦿ ALLEGATION OF HUMAN RIGHTS VIOLATION IS ENOUGH TO TRIGGER THIS COURT JURISDICTION
In the case of His Excellency Vice-President Alhaji Samuel Sam-Sumana v. Republic of Sierra Leone.-SUIT NO: ECW/CCJ/APP/38/16 and JUD NO: ECW/CCJ/JUD/19/17 (At page 14 of the judgment); the court held that: “Indeed Allegations of violations of Human Rights by an Applicant is sufficient to invoke the jurisdiction of this Court. This is distinct from the issues of the veracity of the allegation.”
⦿ CONDITION PRECEDENT TO DETERMINING JURISDICTION
In Hissein Habre v. Republic of Senegal; ECW/CCJ/APP/07/08 & ECW/CCJ/03/10, this Court held that in determining whether it has jurisdiction, it shall consider: • If the issues submitted before it deals with a right which has been enshrined for the benefit of the human person; • Whether it arises from international or community obligations of the state complained of, as Human Rights to be promoted, observed, protected, and enjoyed; • Whether it is the violation of that right which is being alleged. See also Private Alimu Akeem v. Federal Republic of Nigeria ECW/CCJ/ RUL/05/11, pg. 119 affirming the same condition precedent.
⦿ ECOWAS COURT CANNOT ENTERTAIN A CASE ALREADY DETERMINED BY COMPETENT INTERNATIONAL COURT
In El Haji Mame Abdou Gaye v. Republic of Senegal ECW/CCJ/JUD/01/12 at Para 28 and 46, this Court held that: “The only limit to this jurisdiction is as prescribed in Article 10(d)(ii) of the supplementary Protocol on the Court, which bars it from entertaining a case which is already taken by another competent international Court”.
⦿ FREEDOM OF EXPRESSION ALSO INCLUDES FREEDOM TO CRITICISE GOVERNMENT
In the case of Deyda Hydara JR. and Anor v. The Gambia (Suit No: ECW/CCJ/APP/30/11 Judgment No: ECW/CCJ/JUD/17/14). The Applicants were nationals of The Gambia, made allegations of violations of freedom of expression against the defendant state amongst other violations. In its judgment, the Court stated as follows: “These provisions, guarantee the right to life and also freedom of expression… A State also will be in breach of international law and treaty obligations, if it fails to protect media practitioners including those critical of the regime. For freedom of expression also includes the freedom to criticize the government and its functionaries, subject to limitations imposed by the domestic laws.”
➥ REFERENCED (OTHERS)