ECOWAS Court awards 30 million naira in damages to Nigerian journalist over his unlawful arrest and detention under country’s cyber crime law

The ECOWAS Community Court of Justice on Friday 9th July 2021 awarded the sum of Thirty Million Naira to a Nigerian journalist Mr Agba Jalingo as compensation for the ‘moral prejudice suffered’ during his arrest and detention under dehumanising conditions by the agents of the Federal Republic of NIgeria.

Delivering judgment in a suit filed by a Non-Governmental Organisation (NGO), the Court held that the treatment meted out to the journalist was a ‘violation of his rights under Article 5 and 6 of the African Charter,’  and ordered that the compensation be paid through the NGO

In the judgment delivered by Justice Edward Amoako Asante, presiding judge and rapporteur, the Court held that the Applicant- the Registered Trustees of the Socio-Economic Right and Accountability (SERAP)- has sufficiently established the illegal arrest and detention of the journalist under a dehumanizing condition by agents of the government.

However, the three member panel of the Court however found that the prosecution of Mr. Jalingo, who is also a publisher, was proper under the country’s cybercrime law, having been done in pursuant to the extant laws of the Defendant, the Cybercrime, Terrorism and Criminal Code Acts.

“It cannot therefore be, in the opinion of the Court,  that charging a suspect implicated under an extant laws of the Respondent duly promulgated by its National Assembly amounts to using the laws to harass, intimidate, detain, suppress, and circumvent the rights of journalists in general, and Mr. Jalingo in particular to free expression, to information, opinion and media freedom.

“It should be noted that the application of the laws under reference is not limited to journalists as the laws have general application and anyone charged under them is at liberty to mount a defence in the court of law of the Respondent state.

“In this instant case,” the Court said that it is “equally unable to uphold the Applicant’s submission that the continued existence and application of the Sections 41 & 59 of the Respondent’s Cybercrime Act, Criminal Code Act and Sections 1 & 17(2)(a)&(b) of the Terrorism ( Prevention, Amendment) Act by the Respondent to detain, prosecute and imprison Mr. Agba Jalingo is illegal and unlawful as it amounts to breaches of obligations to respect, protect, promote and fulfil the rights to freedom of expression and information and media freedom guaranteed under the African Charter.

In awarding the compensation, the Court also declared that the condition of Mr. Jalingo’s detention violated his right to dignity of human being under Article 5 of the African Charter by the Respondent as well as his right to liberty under Article 6 of the Charter.

It however dismissed all other declarations sought by SERAP while the defendant was given three months within which to comply with the Judgment effective from the date of notification of the judgment.

The court had earlier dismissed the preliminary objection of the government which had argued that that there is a pending criminal prosecution bordering on charges of treason and terrorism involving Mr. Agba Jalingo before a domestic court- the Federal High Court- and that it would amount to an abuse of court process for the Court to exercise jurisdiction on the same subject matter.

The government had further contended that the Applicant ought to have instituted its case of the allegation of the violation of his fundamental rights before the Respondent’s domestic court.

But in dismissing the objection in its entirety, the Court held that the only instance where an application for the violation of human rights will not be entertained by the Court  ‘ is when the same matter is before an international but not when it is before the domestic court of Member States as argued by the Respondent in its preliminary objection.

‘As firmly rooted in its jurisprudence, the Court holds that the prosecution of the instant suit before this Court does not amount to an abuse of court process in spite of pendency of a criminal suit against the principal beneficiary of the suit i.e Mr Agba Jalingo whose rights are being enforced therein.’

In suit no: ECW/CCJ/APP/10/20, SERAP is suing the Defendant for the use of Cybercrime (Prohibition, Prevention, etc) Act 2015, Terrorism (Prevention Amendment), 2013 and the Criminal Code Act to unlawfully charge Mr Jalingo before the Federal High Court in the Calabar Judicial Division of the country’s Cross River State.

The Applicant averred that Mr Jalingo, publisher of the online Cross River Watch who also reports for another online newspaper, Sahara Reporters, was charged with treason for allegedly inciting the people to protest for a change of government, through the publication in his Cross River Watch, an offence punishable under section 41 of the Criminal Code Act, Cap C39, LFN, 2004.

He was also charged with allegedly causing alarm, hatred and disturbance of public peace through his publication contrary to section 59 of the Criminal Code.

During the hearing, Mr Jalingo who was led in evidence by counsel representing SERAP, Mr. Kolawale Oluwadare recounted how security officials broke into his house and arrested him after he wrote an editorial article in which he alleged that a 500-million-naira expenditure by the State for the establishment of a microfinance bank was diverted.

He further told the Court that he was taken by the security personnel on a 26-hour road journey during which he was not allowed to dismount from the vehicle and on arrival detained at a detention facility run by the anti-cult and anti-kidnapping police for 34 days before his arraignment on 31st August 2019.

Mr. Jalingo who is on bail after 179 days in detention, was also charged with terrorism, an offence that attracts life imprisonment and the death penalty.

Under counts 3 and 4, Mr. Jalingo was charged with allegedly conspiring with the journalist and human rights activist, Mr. Omoyele Sowore to cause terrorism and for allegedly meeting with cultists to instigate violence and acts of terrorism against the Cross River State Governor, Mr. Ben Ayade, offences punishable with life imprisonment under sections 17 & 1 (2) (a) & (b) of the Terrorism (Prevention Amendment) Act, 2013.

The Plaintiff contends that the Defendants and their agents have consistently and frequently used the provisions of the Terrorism (Prevention and Amendment) Act, Cybercrime Act and other repressive laws to harass, intimidate, arbitrarily arrest and detain and unfairly prosecute journalists, users of social media and activists and other Nigerians who express views perceived to be critical of government at the Federal and State levels.

On Friday, 4th October, 2019 a national court in the State had dismissed the bail application of Mr. Jalingo after the judge, Honourable Justice Simon Amobeda held that the offences for which he was charged were not bailable as one of the counts carried death sentence.

The Plaintiff argued that these harassments, intiidation, arbitrary arrest, detention, torture, unfair prosecution and imprisonment of Mr. Jalingo and other journalists who were exercising their rights to freedom of expression and information and media freedom violate all the international and regional treaties on human rights to which Nigeria is a State Party.

The Plaintiff further argued that criticizing the actions of government, government officials and expressing one’s opinion on issues of national, political, social or economic interest is the bedrock of a vibrant and transparent democracy and that persons in government such as the Defendant and its agents must exercise high tolerance to criticism.

Among the reliefs sought were:

An order directing the Defendants to immediately drop all charges against Mr. Jalingo his unconditional release from prison as well as an order directing the Defendants and/or their agents in Nigeria to provide effective remedies and reparation, including adequate compensation, restitution, satisfaction or guarantees of non-repetition that the Court may deem fit for his unfair prosecution by the Respondent.

At an earlier hearing, the Court had struck out the second Defendant, Cross River State from the suit, not being a proper Defendant before the Court and for not being a signatory to the ECOWAS Revised Treaty.

However, the first Defendant, the Federal Republic of Nigeria which is a Member State of ECOWAS and a signatory to the Revised Treaty, through their Counsel Chijioke Amadi filed and adopted his preliminary objection arguing that the person on whose behalf/interest the Applicant instituted the suit has been granted bail and is currently being prosecuted at a competent municipal/domestic court of the first Defendant on criminal allegations bordering on treason and terrorism.

The Respondent further argued that the Applicant failed to disclose a reasonable cause of action to be entitled to the reliefs sought nor discharge the evidential burden placed on him in proof of his case and therefore asked the Court to dismiss the suit.

The Court had earlier struck out the country’s Cross River State from the suit, not being a proper party before the Court.

Also on the panel of the Court in the suit were Justices Dupe Atoki and Januaria Tavares Silva Moreira Costa.