Supplementary Protocol A/SP.I/01/05 did not repeal or amend Protocol A/PI/07/91 to the
extent of extinguishing the plaintiffs' Fundamental Rights and that the violation complained of is
that of Fundamental right. and he relied on Article 12 of the African Charter on Human and
Peoples' Rights and Article 9(4) of the Supplementary Protocol. He referred to Article 10(d) of the
Supplementary Protocol and submitted that since the case is not pending in any International
court. the Court has jurisdiction over the subject matter.
12. On the other second issue, learned counsel to the 1st & 2 n d defendants itemized the
subject matter of this case as;
(I)
Violation of the plaintiffs' rights to free movement of persons and goods under Article
12 of the African Charter;
{2)
Violation of free movement by erection of toll gates and collecthm of toll fares by
Police, Customs and Immigration officials.
{3)
Violation of plaintiff's right to free movement by occasional closure of borders and
restriction of movement of persons and goods by the defendants pursuant to the
provisions of the ECIJWAS free movement of persons, residence and establishment. He
submitted that the plaintiff has failed to prove his claim and that the defendants were
not in breach of Article 12 of the Charter on Human and Peoples' rights and the
Universal declaration of Human rights.
13. He submitted that even the evidence given by the 1st plaintiff has not established the claim.
He submitted that Article 12(1) 6 (2) of the African Charter is not absolute freedom but there
is a caveat that "provided he abides by the law" and the second caveat is that "provided by
the law for the protection of National Security, law and order, public health or morality." He
submitted that the word 'provided' in its ordinary and legislative context means an exception.
He relied on Bindra's interpretation of Statutes 10th edition and submitted that the evidence of
the 1st1 plaintiff that there was presidential election and the border was closed fell under the
provision mentioned in Article 12 (1) of the African Charter on Human and Peoples Rights.
6