The Socio-Economic Rights and Accountability Project (SERAP) has asked the Acting Chairperson of the African Commission on Human and Peoples’ Rights, Honourable Commissioner Bahame Tom Mukirya NYANDUGA to restrain Libya from executing Nigerians on death row.

In a request for provisional measures dated 6 September 2009 and signed by Solicitor to SERAP, Mr Femi Falana, who is also the President West African Bar Association (WABA), the organization asked the African Commission to “urgently invoke Article 111 (Rule of Procedure) authority to request that Libya adopt provisional measures in order to stop the irreparable damage that would be caused to the Complainants and their African Charter rights.”
The request for provisional measures was submitted in conjunction with SERAP’s communication to the African Commission.

According to the organization, “The serious, persistent and irreparable violations of the Complainants’ rights to life; to communicate with their embassy or consular post; to competent and effective legal representation; to trial within a reasonable time or to a release; to trial by a competent, independent and impartial tribunal established by law; to the presumption of innocence; to an interpreter and to translation; to appeal to an independent and impartial tribunal, and fair trial guarantees during appeals require the Commission’s immediate and urgent attention.”

 “We have received credible information from the Complainants that their mental and physical conditions are deteriorating. Some of the Complainants have told SERAP that “Our condition is not conducive and our health is deteriorating. We don't know if it is food poison. We have been made scapegoats by the Libyan authorities and forced to modern slavery. Despite our conditions, we are forced to work for them. We have been charged for crime we don’t know or have not committed,” said the organization, quoting some of the Complainants.

Another Complainant told SERAP that “I have spent 7years in the prison and now on death row without knowing my offence. There are many like me with similar problem. We want the world to know the atrocities which are being committed. Our Nigerian embassy here has contributed to the problem. As a Nigerian, you cannot step your foot on the consular gate. Since my 7 years in prison, I haven’t seen the Nigerian embassy visiting its people. In 2007, we went on a one week hunger strike demanding a visit by our embassy. All efforts were in vain. Our embassy officials are only interested in signing death certificates.”

The organization listed the names of the Complainants who are “on death row and in prisons across Libya under very harsh and dehumanising conditions” to include: Adepoju Adebowale; Abdulah Usman; David Okiki Awolabi; Micky Remi; Okuronbo Osazemhide; Gani Olu; Livingstone Kennedy; Ikeoma; Ogurapulu Richard; Don Emmanuel Nwaeueje; James Amala; Declan Nnamdi; Emmanuel Ude; Moses Anigbogu; Ogoubamu; Okhwku Moha; John Andrew; Jude Idahosa; Juliana Okolo, and Luke Ejike.

The organization also said that “Libya is a state party to the African Charter on Human and Peoples’ Rights and currently holds the chairmanship of the African Union. Similarly, Libya’s Great Green Charter of Human Rights promised that “all human beings will be free and equal in the exercise of power,” but human rights of citizens and foreign nationals, including Nigerians continue to be violated with impunity. The Complainants have been deprived of their liberty and other fair trial rights and unless the African Commission urgently intervenes, their right to life may be irreparably violated.”

“The Complainants have also been denied their rights to be informed of their rights and an explanation of how to avail themselves of such rights. The authorities have failed to promptly inform them of their right to communicate with their embassy or consular post. The Complainants’ conditions are characterised by depression, loss of sense of reality and physical and mental deterioration; massive deprivation of personal autonomy critical to psychological survival; and emotional emptiness,” the organization further argued.

The organization also argued that, “Prisoners are not denuded of their rights by mere conviction. If carried out, the death sentences on the Complainants would amount to inhuman or degrading treatment. Given the climate of persistent and long standing human rights violations in Libya and the impunity of perpetrators, the urgent intervention by the African Commission is required to protect the Complainants against irreparable damage.”

“By virtue of its consistent denial of fair trial and other rights to the Nigerians on death row and in prisons under dehumanizing and harsh conditions, Libya has violated Articles 1, 2, 3, 4, 5, 6, and 7 of the African Charter. By virtue of its decision to execute the Nigerians on death row, Libya has violated the Complainants’ right to life under Article 4 of the African Charter, and the resolutions on moratorium on executions adopted recently by both the African Commission on Human and Peoples’ Rights and the UN General Assembly,” the organization added.

The organization therefore asked the African Commission to grant provisional measures requesting Libya to: “Immediately remove the Complainants from death row or any risk of execution, and fully accord them their fair trial and other human rights, pending the Commission’s decision; give assurances that the Nigerians and others on death row and in dehumanising and harsh conditions across Libyan prisons will not be secretly executed; and to impartially, independently and transparently investigate whether the Nigerians on death row received fair trial and other international human rights guarantees applicable to their situation. Pending the government’s fulfilling this important responsibility, the Commission’s urgent intervention is required to ensure that the Complainants’ right to life is not unjustly and illegally violated.”

“Unless the African Commission urgently intervenes in this case, there is a risk of irreversible denial of the Complainants’ rights, which in turn will render nugatory the resolutions on moratorium on executions by the African Commission and the Third Committee of the UN General Assembly,” the organization concluded.

Signed
Adetokunbo Mumuni
Executive Director
6/9/09
------------------------------------

The Secretary
African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District,
Western Region P.O. Box 673
Banjul, The Gambia
 
6 September 2009

Dear Dr Mary Maboreke:
COMMUNICATION BROUGHT AGAINST THE GOVERNMENT OF LIBYA ON MULTIPLE VIOLATIONS OF THE PROVISIONS OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS REGARDING NIGERIANS ON DEATH ROW IN LIBYA

A. Introduction:
1.    I am sending this petition to you as Solicitor to the Socio-Economic Rights and Accountability Project (SERAP) and I have the instructions of my client to ask the Commission to consider the requests made in the petition. The requests are on behalf of Nigerians on death row in Libya, to ensure effective remedies for a multiple violations of their right to life and fair trial rights guaranteed under the African Charter on Human and Peoples’ Rights, and resolutions on moratorium on executions adopted recently by both the African Commission on Human and Peoples’ Rights and the Third Committee of the UN General Assembly.

2.    The petitioner is a human rights non-governmental organization registered under Nigerian laws, and whose mandates include the promotion of respect for human rights of Nigerians, through litigation, research and publications, advocacy and monitoring.

3.    The petitioner has observer status with the African Commission and actively participates in the work of the Commission, including by attending its sessions.
4.    Despite its obligations under the African Charter on Human and Peoples’ Rights and other international treaties to which Libya is a state party, the Libyan authorities continue to violate the fair trial and other rights of the Complainants and put them at risk of imminent execution.

5.    In particular, there are serious, persistent and irreparable violations of the Complainants’ rights to life; to communicate with their embassy or consular post; to competent and effective legal representation; to trial within a reasonable time or to a release; to trial by a competent, independent and impartial tribunal established by law; to the presumption of innocence; to an interpreter and to translation; to appeal to an independent and impartial tribunal, and fair trial guarantees during appeals. 

6.    According to our information, there are several Nigerians on death row and in prisons under inhuman and degrading conditions in Libya that are at risk of imminent secret execution. The figures by the Nigerian House of Representatives suggest that the number of Nigerians on death row in Libya may be up to 230. The Nigerians are said to have been convicted of immigration offences and other offences such as murder, drugs and armed robbery.
7.    The names of the Complainants who are on death row and in prisons across Libya under very harsh and dehumanising conditions include: Adepoju Adebowale; Abdulah Usman; David Okiki Awolabi; Micky Remi; Okuronbo Osazemhide; Gani Olu; Livingstone Kennedy; Ikeoma; Ogurapulu Richard; Don Emmanuel Nwaeueje; James Amala; Declan Nnamdi; Emmanuel Ude; Moses Anigbogu; Ogoubamu; Okhwku Moha; John Andrew; Jude Idahosa; Juliana Okolo, and Luke Ejike.
8.    The petitioner has received credible information from the Complainants that their mental and physical conditions are deteriorating. Some of the Complainants have told the petitioner that “Our condition is not conducive and our health is deteriorating. We don't know if its food poison. We have been made scapegoats by the Libyan authorities and forced to modern slavery. Despite our conditions, we are forced to work for them. We have been charged for crime we don’t know or have not committed.”

9.    One Complainant told the petitioner that “I have spent 7years in the prison and now on death row without knowing my offence. There are many like me with similar problem. We want the world to know the atrocities which are being committed. Our Nigerian embassy here has contributed to the problem. As a Nigerian, you cannot step your foot on the consular gate. Since my 7years in prison, I haven’t seen the Nigerian embassy visiting its people. In 2007, we went on a one week hunger strike demanding a visit by our embassy. All efforts were in vain. Our embassy officials are only concerned in signing death certificates.”

10.    Libya is a state party to the African Charter on Human and Peoples’ Rights and currently holds the chairmanship of the African Union. Similarly, Libya’s Great Green Charter of Human Rights promised that “all human beings will be free and equal in the exercise of power,” but human rights of citizens and foreign nationals, including Nigerians continue to be violated with impunity.
11.    Yet, justice is based on respect for the rights of every individual. As the Universal Declaration of Human Rights puts it, ''recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world''. The Declaration also provides that ''[e]veryone is entitled in full equality to a fair and public hearing... of any criminal charge'' and ''[e]veryone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial.''
12.    The right to a fair trial is a fundamental safeguard to assure that individuals are not unjustly punished. It is indispensable for the protection of other human rights such as the right to freedom from torture and the right to life.  However, when people are subjected to unfair trials, justice cannot be served.

13.    The petitioner contends that the Complainants have been deprived of their liberty and other fair trial rights and their right to life may be irreparably violated.
14.    The petitioner also contends that the Complainants have also been denied their rights to be informed of their rights and an explanation of how to avail themselves of such rights. The authorities have failed to promptly inform them of their right to communicate with their embassy or consular post. The Complainants’ conditions are characterised by depression, loss of sense of reality and physical and mental deterioration; massive deprivation of personal autonomy critical to psychological survival; and emotional emptiness.
15.    Like the African Charter, Article 6 of the International Covenant on Civil and Political Rights (CCPR), which Libya has also ratified, provides that “no one shall be arbitrarily deprived of his life”. The word “arbitrarily” here means both ‘illegally’ and ‘unjustly’.
16.    Furthermore, the African Commission on Human and Peoples' Rights at its 44th Ordinary Session in Abuja, Nigeria, in November 2008 adopted a resolution calling on African States, including Libya, that still retain the death penalty to "observe a moratorium on the execution of death sentences with a view to abolishing the death penalty."

17.    Among others, the resolution recalled Article 4 of the African Charter, which recognises the right of everyone to life, and Article 5(3) of the African Charter on the Rights and the Welfare of the Child, which guarantees the non-application of death penalty for crimes committed by children. The resolution expresses concerns about “the failure of some African states [including Libya] to give effect to the UN resolutions and African Commission's own 1999 resolution calling for a moratorium on executions", and about the application of "the death penalty in conditions not respectful of the right to a fair trial guaranteed under the African Charter on Human and Peoples' Rights and other relevant international norms".
18.    The resolution also asked AU member states, including Libya that still retain the death penalty to: fully comply with their obligations under the African Charter on Human and Peoples’ Rights, and guarantee to every person accused of crimes for which capital punishment is applicable, fair trial standards; and to include in their periodic reports information on the steps they are taking to move towards the abolition of the death penalty in their countries.
19.    The resolution is similar to the one adopted by the Third Committee of the UN General Assembly in 2007.
20.    For the above reasons, SERAP considers that the application of the death penalty in the cases of the Nigerians will be illegal and unjust. We consider supervening factors such as those highlighted above to be sufficient grounds for setting aside the death sentences imposed on the Nigerians.
21.    Prisoners are not denuded of their rights by mere conviction. If carried out, the death sentences on the Complainants would amount to inhuman or degrading treatment.
22.    As Amnesty International’s annual report for 2009 has confirmed, Libya has a history of arbitrarily executing foreign nationals; and torturing and ill-treating detained migrants, refugees and asylum-seekers; and has consistently failed to afforded protection required by international refugee law. According to Amnesty International, several foreign nationals were executed in Libya in 2008.
23.    Amnesty International also said in its 2009 annual report that “The authorities took no steps to address the legacy of gross human rights violations committed in earlier years, notably the 1970s, 1980s and 1990s, including the enforced disappearance of hundreds of critics and opponents of the government. Many are feared to have died or been killed in custody. The authorities also failed to investigate properly a death in detention in suspicious circumstances in 2008.”
24.    According to the Human Rights Watch, about 200 prisoners who have served their sentences or who have been acquitted by Libyan courts remain imprisoned under orders of the Internal Security Agency. Libyan prisons still contain dozens of prisoners who were sentenced after unfair trials. As the Human Rights Watch said, “Up to 1,200 prisoners were killed on June 29, 1996 in Abu Salim prison, but the Libyan authorities have yet to make public any investigation into the incident or to hold anyone responsible. From 1996 until late 2008, the vast majority of the families of the prisoners who were killed sought news of their fate but received no information about them.”

25.    The petitioner therefore urges the African Commission to consider the present Complaint under Articles 55, 56 and 58 of the African Charter. The petitioner further urges the African Commission to undertake an in-depth study, based on the “series of serious” and “massive” violations alleged in this Communication.

26.    The petitioner is filing this Communication with the African Commission because no adequate or effective domestic remedies exist to address the violations alleged in this Communication.

27.    Generally, local remedies must be exhausted prior to submitting a Communication to the Commission.  There are, however, exceptions to this general rule.  The African Commission has stated that local remedies must be available, effective and sufficient. A local remedy is considered available if the petitioner can pursue it without impediment, it is effective if it offers a prospect of success and it is sufficient if it is capable of redressing the complaint. The petitioner will not be permitted to enter Libya to access local remedies, and the Complainants are too poor or traumatized to avail themselves of local remedies. As result, effective local remedies are unavailable to the victims and their families.

B.  Requested Relief: SERAP urges the African Commission to:

1.    Consider the present Communication under Articles 55, 56 and 58 of the African Charter. SERAP further urges the African Commission to undertake an in-depth study, based on the “series of serious” and “massive” violations alleged in this Communication

2.    By virtue of its consistent denial of fair trial and other rights to the Nigerians on death row and in prisons under dehumanizing and harsh conditions, find that Libya has violated Articles 1, 2, 3, 4, 5, 6, and 7 of the Charter;

3.    By virtue of its decision to execute the Nigerians on death row, find that Libya has violated the Complainants’ right to life under Article 4 of the African Charter, and the resolutions on moratorium on executions adopted recently by both the African Commission on Human and Peoples’ Rights and the UN General Assembly.

4.    Find that Libya has deliberately and wilfully disregarded the request by the African Commission to the effect that African countries, including Libya that still retain the death penalty should fully comply with their obligations under the African Charter on Human and Peoples’ Rights, and guarantee to every person accused of crimes for which capital punishment is applicable, fair trial standards.

5.    Ask Libya to pay appropriate compensation to the Complainants for the multiple violations of their Charter rights and freedoms.

6.    Ask Libya to faithfully and fully implement resolutions on moratorium on executions adopted recently by both the African Commission on Human and Peoples’ Rights and the Third Committee of the UN General Assembly.

Sincerely,

Femi Falana
Solicitor to SERAP
 
 

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