10. In all of the cases cited above, the Commission found that the ouster clauses render local
remedies non-existent or ineffective. They create a legal situation in which the judiciary can provide no
check on the executive branch of government. A few courts in the Lagos Division have occasionally
found that they have jurisdiction. For instance, in 1995, the Court of Appeal, Lagos Division, relying on
common law, concluded that courts should examine some decrees notwithstanding ouster clauses,
where the decree is "offensive and utterly hostile to rationality" . But this decision has not been
followed by any subsequent case.
11. In the instant communication, the jurisdiction of the courts was ousted. Thus, no matter how
meritorious the victims' case for freedom may be, the courts cannot entertain it. Accordingly, the case
was declared admissible.
Merits
12. Article 6 of the African Charter provides:
Every individual shall have the right to liberty and to the security of his person. No one may be
deprived of his freedom except for reasons and conditions previously laid down by law. In particular,
no one may be arbitrarily arrested or detained.
13. The government has not disputed any of the facts as presented by Constitutional Rights Project.
14. The African Commission, in several previous decisions, has set out the principle that where
allegations of human rights abuses go uncontested by the government concerned, especially after
repeated notification, the Commission must decide on the facts provided by the complainant and treat
1
those facts as given
15. As the government has offered no other explanation for the detention of the 11 soldiers, the
Commission has to assume that they are still being detained for the acts for which they were found
innocent in two previous trials. This is a clear violation of Article 6, and shows disrespect by the
Nigerian government for the judgements of its own courts.
16. Later, (although it was unnecessary because they were found innocent of any crime), the soldiers
were granted state pardons, but were still not freed. This constitutes a further violation of Article 6 of
the Charter.
Decision of the African Commission
For these reasons, the Commission
Holds a violation of Article 6 of the African Charter
Urges the Government of Nigeria to respect the judgements of its courts and to free the 11 soldiers.
th
Kigali, Rwanda, 15 November 1999.
Footnotes
1. Editor's note: Decision 60/91 has only 14 paragraphs in English and in French. For further information
see ACHPR/60/91:13
1. See the Commission's decisions on communications 59/91 - Embga Mekong Louis/Cameroon, 60/91 Constitutional Rights Project(in respect of Wahab Akamu, G. Adega and others /Nigeria, 64/92 - Krishna Achutan
(on behalf of Aleke Banda)/Malawi, 87/93 - Constitutional Rights Project/Nigeria ( in respect of Zamani Lakwot
and 6 others )/ Nigeria and 101/93 - Civil Liberties Organisation ( in respect of the Nigerian Bar
Association)/Nigeria.
2. Editor's note: Decision 87/93 has only 14 paragraphs in English and in French. For further information
see ACHPR/87/93:11