Law
Admissibility
22. Article 56(5) of the Charter provides: Communications...shall be considered if they:
are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged.
23. The Commission declared the communication admissible on the grounds that there was a lack of
available and effective domestic remedies for human rights violations in Nigeria under the military regime.
24. Relying on its precedents in communications 87/93 and 101/93, (the former was brought on behalf of
seven men sentenced to death under a decree which prohibits the courts from reviewing any aspect of the
trial, while the latter was brought on behalf of the Nigerian Bar Association based on a Decree which
infringed upon Nigerian lawyers' freedom of association and also precluded the courts from hearing cases
relating to the said decree) the Commission interpreted the standard for constructive exhaustion of
domestic remedies to be satisfied where there is no adequate or effective remedy available to the
individual. In this particular case, the Commission found that Mr Wiwa was unable to pursue any domestic
remedy following his flight for fear of his life to the Republic of Benin and the subsequent granting of
refugee status to him by the United States of America.
25. On the issue of consolidation of the communication with No. 205/97, the Commission decided that
since it is a stage behind and since a decision on admissibility is yet to be taken on communication 205/97,
it should not, therefore, delay decision on the merits of communication 215/98.
Merits
26. The Complainant alleges that while in detention, he was horsewhipped and subjected to various forms
of torture. Article 5 of the Charter states: Every individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal status. All forms of exploitation and
degradation of man particularly...torture, cruel, inhuman or degrading punishment and treatment shall be
prohibited.
27. The Complainant also alleges the illegal arrest and detention of Mr Wiwa as being in contravention of
his right to liberty and to the security of his person as guaranteed under Article 6 of the Charter, which
provides: Every individual shall have the right to liberty and to the security of person...No one may be
deprived of his freedom except for the reasons and conditions laid down by law. In particular, no one may
be arbitrarily arrested or detained.
28. It is alleged further that except for the five minutes discussion Mr Wiwa had with his grandfather, he
was not allowed access to his relatives or to counsel, and was neither informed of the nature of the offence
nor the reasons for his arrest and detention, in violation of Article 7(1)(c) of the Charter, which provides:
Every individual shall have the right to have his cause heard. This comprises:
(c) the right to defence, including the right to be defended by counsel of his choice.
29. In its Resolution expounding on the components of the right to fair trial, the Commission had observed
that: ...the right to fair trial includes, among other things, the following:
(b) persons who are arrested shall be informed at the time of the arrest, in a language which they
understand of the reason for their arrest and shall be informed promptly of any charges against them;
(e) In the determination of charges against individuals, the individual shall be entitled in particular to:
(i)Have adequate time and facilities for the presentation of their defence and to communicate in confidence
with counsel of their choice.
30. The Complainant alleged that he was abducted and threatened by persons believed to be agents of the
Government, an action that led to his fleeing the country for safety. He attests that his flight, as evidenced
by the granting of refugee status to him by two countries (Republic of Benin and the US) was based on
well-founded fear of persecution by the Nigerian government. He attests further that since then, he has
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