The ECOWAS Court of Justice, on Thursday 2nd March, 2023 dismissed an application brought by a Non-Governmental Organization (NGO) in the Republic of Niger alleging the violation of its rights to freedom of association and peaceful assembly following the consistent ban by the State of peaceful demonstrations, marches and meetings

The Movement Nigerien Pour la Promotion des Peuples et la Promotion de la Democratie  said the action of the government violated its rights as enshrined in Article 11 of the African Charter on Human and Peoples’ Rights.

In the judgment delivered by Justice Dupe Atoki, the judge Rapporteur in the case, the Court noted that the “Application is in compliance with Article 10 (d) (i) and (ii) of the Protocol, having found that it is neither anonymous nor made whilst the same matter has been instituted before another international court for adjudication.”

It further held that “ the first leg of Article 10(d) of the Protocol (as amended by the Supplementary Protocol) anticipates that the Applicant whose right has been violated must be an individual. “

In the present case, the Court noted that the Applicant known as the Mouvement Nigerien Pour la Promotion des Peuples et la Promotion de la Democratie declared themselves victims of the ban to assemble and also confirmed that they are not acting on behalf of anybody or entity and that the claim for damages was for themselves in the sum of 150,000,000 as victims.

However, the Court held that there are conditions precedent before legal persons can sue for themselves such as the violation of the right to fair hearing, right to property and right to freedom of expression.

The Court further held that “the Applicant’s allegation being premised on the violation of their right to assemble and demonstrate contrary to Articles 11 of the Charter, obviously does not fall within the exceptions (and) thus cannot bring an action for themselves for the violation of Article 11 of the Charter. «  

« The Court is therefore of the considered opinion that the Applicant not being an individual or a legal person competent to access the Court under the excepted conditions, the instant Application alleging the violation of the right to assemble and demonstrate is not in conformity with Article 10(d). »

Prior to the decision, the Court had ruled that it has jurisdiction to entertain the matter as the application is neither anonymous nor pending before another international Court for adjudication in compliance with Article 10 (d ) (i) and (ii) of the Protocol.

The Court also declared that the Respondent’s claim that the State of Niger is not a proper party in this matter is moot and that the merits of the Application is devoid of purpose.

In the suit, the MNPDA, which is engaged in the defense of human rights and the promotion of democracy, alleged that the actions of the government amounted to the violation of the citizens’ rights to freedom of association and peaceful assembly as enshrined in the cited international law.  The NGO relied on Article 20 of the Universal Declaration of Human rights; Article 21 of the International Covenant on Civil and Political Rights; Article 11 of the African Charter on Human and Peoples’ Rights and Article 11 of the European Convention for the safeguard of human and fundamental rights.  

The Applicant contended that since March 2018, Civil Society Organisations (CSO’s) have been illegally prevented from holding peaceful gatherings in the form of street demonstrations, marches or meetings because of a decree against such activities issued by the Chairman of Niamey Municipal Council purportedly at the behest of the government of Niger.

The Decree dated 12 January 2017 banned « all demonstrations or meetings during work days and in evenings throughout Niamey,» while CSO’s were only permitted to assemble and hold daytime meetings on Sundays. Since then, the Applicant said the Government has relied on the decree to prevent 25 such activities,  including its 18th January 2021  request to the administrative Authority of Niamey, « The President de la Delegation Speciale de Niamey » to hold a march on 27th January 2021 which was refused on the basis of the decree. This ground for refusal was the « risks of disturbing public peace and order » pursuant to article 5 of law 2004-45 of 5th June 2004 on public protests in the streets and the need to comply with the social distancing requirement of Covid-19.  

The Applicants further said that most of these enactments were unsuccessfully challenged before national courts and that « either the actions were rejected or the judges before whom they were filed failed to make pronouncement on them before the scheduled dates with their decisions usually communicated to the Applicants on Friday evenings to avoid the marches taking place on Sundays ».

In his initiating application filed by his counsel on 11 February 2021 , Mr Ahmed MAMANE and Mr Boudal EFFRED MOULOUL, the Applicants, urged the Court to among other things, rule the case admissible and declare the Respondent in default of its international obligations relating to the protection of fundamental freedoms and liberties, particularly the freedom of association and peaceful assembly.  

The Applicant also asked the Court for an order compelling the government of the Republic of Niger to take all necessary measures to bring an end to this ‘disproportionate and unjustified infringement of the citizens’ fundamental right to liberty.  

But in its response dated 23rd May 2022, the Respondent rejected the allegation of violation of the right of the Applicant and urged the Court to declare and adjudge that there has been no violation of human rights in this case and asked the Court to dismiss all claims made by the Applicant. It also asked the Court to disregard the counter claim of the sum of One Hundred and Fifty Million (150.000.000) CFA  made by the Applicant in response to its observations as damages for prejudices suffered.  

The State, which was represented by the country’s judicial agency said that between 2018 and 2020, several CSO’s filed 24 requests for demonstrations in the municipalities of Niamey, Zinder, Tahoua, Dosso, Maradi and Loga. It argued that due to terrorist activities in the Sahel and the Gulf of Guinea, the authorities of the municipalities could not approve these requests which were construed by the MNPDA as the violation of their freedom of assembly and peaceful demonstration which necessitated the action in the Court.

Also on the three-member panel were Justices Edward Amoako Asante presiding and  Gberi-be Ouattara.