69. At the 22nd Ordinary Session, the Commission postponed taking a decision on the cases pending the
discussion of the Nigerian Mission report.
70. At the 23rd Ordinary Session held in Banjul The Gambia, from 20th-29th April 1998, the Commission was
unable to consider the communication due to lack of time.
71. On 25th June 1998, letters were sent from the Secretariat of the Commission to all parties concerned
regarding the status of the communications.
Law
Admissibility
72. Article 56 of the African Charter reads:
Communications...shall be considered if they: ...5. Are sent after exhausting local remedies, if any, unless it
is obvious that this procedure is unduly prolonged...
73. This is just one of the 7 conditions specified by Article 56, but it is that which usually requires the most
attention. Because Article 56 is necessarily the first considered by the Commission, before any substantive
consideration of communications, it has already been the subject of substantial interpretation; in the
jurisprudence of the African Commission, there are several important precedents.
74. Specifically, in the four decisions the Commission has already taken concerning Nigeria, Article 56(5) is
analysed in terms of the Nigerian context. Communication 60/91 (Decision ACHPR/60/91) concerned the
Robbery and Firearms Tribunal; Communication 87/93 (Decision ACHPR/87/93) concerned the Civil
Disturbances Tribunal; Communication 101/93 (Decision ACHPR/101/93) concerned the Legal
Practitioners Decree; and Communication 129/94 (ACHPR/129/94) concerned the Constitution
(Modification and Suspension) Decree and the Political Parties (Dissolution) Decree.
75. All of the Decrees in question in the above communications contain "ouster" clauses. In the case of the
special tribunals, these clauses prevent the ordinary courts from taking up cases placed before the special
tribunals or from entertaining any appeals from the decisions of the special tribunals. ( ACHPR/60/91:13
and ACHPR/87/93:13). The Legal Practitioners Decree specifies that it cannot not be challenged in the
courts and that anyone attempting to do so commits a crime ( ACHPR/129/94:14 and ACHPR/129/94:15 ).
The Constitution Suspension and Modification legally prohibited their challenge in the Nigerian Courts (
ACHPR/129/94:14 and ACHPR/129/94:15).
76. In all of the cases cited above, the Commission found that the ouster clauses render local remedies
non-existent, ineffective or illusory. 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 district have occasionally found that they
have jurisdiction; in 1995 the Court of Appeal in Lagos, relying on common law, found that courts should
examine some decrees notwithstanding ouster clauses, where the decree is "offensive and utterly hostile to
rationality" (Reprinted in the Constitutional Rights Journal). It remains to be seen whether any Nigerian
courts will be courageous enough to follow this holding, and whether the government will abide by their
rulings should they do so.
77. In the present case, while the above reasoning was used in the initial decisions on admissibility, it is at
the present time unnecessary. In light of the fact that the subjects of the communications are now
deceased, it is evident that no domestic remedy can now give the complainants the satisfaction they seek.
The communications are thus admissible.
Merits
78. Article 5 of the Charter reads:
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 slavery, slave
trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
79. Article 5 prohibits not only torture, but also cruel, inhuman or degrading treatment. This includes not
only actions which cause serious physical or psychological suffering, but which humiliate the individual or
force him or her to act against his will or conscience.
5