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Amicus Curiae Brief to the Community Court of Justice of the Economic Community of West African States (Ecowas)

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Amicus Curiae Brief to the Community Court of Justice of the Economic Community of West African States (Ecowas) AMICUS CURIAE BRIEF TO THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) 2 Amnesty International International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom AI index: AFR 44/005/2012 3 IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) HOLDEN AT ABUJA, NIGERIA SUIT NO: ECW/CCJ/APP/10/10 BETWEEN: 1. THE REGISTERED TRUSTEES OF THE ) SOCIO-ECONOMIC RIGHTS & ) ACCOUNTABILITY PROJECT (SERAP) 2. ISRAEL OKARI ) 3. JOY WILLIAMS 4. AUSTIN ONWE ) 5. TAMNO TONYE AMA 6. VICTOR OPIUM ) 7. MARK BOMOWE 8. NAPOLEON TOKUBIYE ) 9. JONATHAN BOKOKO 10. WILLIAMS TAMUNO ) 11. LINUS JOHN ).. PLAINTIFFS AND 1. THE FEDERAL REPUBLIC OF NIGERIA ) 2. ATTORNEY GENERAL OF THE FEDERATION & MINISTER OF JUSTICE 3. GOVERNOR OF RIVERS STATE ) 4. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE OF RIVERS STATE ) 5. COMMISSIONER FOR URBAN DEVELOPMENT, RIVERS STATE )...DEFENDANTS AMICUS CURIAE BRIEF SUBMITTED BY AMNESTY INTERNATIONAL PURSUANT TO THE INHERENT JURISDICTION OF THE HONOURABLE COURT 4 Contents I. Introduction..............................................................................................................................5 II Discussion of the legal and human rights issues involved in the case.....................................5 A Right to life and the use of actual or potentially lethal force by law enforcement officials, including during demonstrations .....................................................................................................7 B Right to an effective remedy, including the obligations of states to investigate and prosecute allegations of violations of the right to life and other serious human rights violations ................14 C Right to protection against forced evictions ..........................................................................21 III Conclusion.........................................................................................................................27 ANNEX 1: Description and interest of Amicus ............................................................................29 ANNEX 2: International standards on the use of force and firearms by law enforcement officials .......................................................................................................................................................30 ANNEX 3: Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions to the General Assembly (UN Doc. A/61/311) 5 September 2006 (excerpt) ..............36 5 I. Introduction 1. This amicus brief is respectfully submitted by Amnesty International (‘AI’), to the ECOWAS Court of Justice, Abuja, Nigeria (See Annex 1 for brief details about the organisation submitting the amicus curiae brief.) 2. The brief aims to provide the ECOWAS Court of Justice with information on international legal and human rights standards and jurisprudence relating to: (i) the right to life, including the interpretation of Article 4 of the African Charter on Human and Peoples’ Rights by the African Commission on Human and Peoples’ Rights, and, accordingly, the obligations of states with regard to the use of force and firearms by law enforcement officials during demonstrations; (ii) the right to an effective remedy, including the obligation of states to investigate allegations of violations of the right to life, and prosecute perpetrators; and (iii) protection and safeguards against forced evictions. 3. This brief examines relevant jurisprudence of the African Commission on Human and Peoples’ Rights, the European Court of Human Rights and the Inter-American Court of Human Rights, as well as applicable rules of public international law on the above-highlighted issues. 4. Amnesty International hopes this information will be of assistance to the Court as it considers various legal issues in this case arising from the use of force and firearms by law enforcement officials in policing a demonstration by a crowd protesting against the planned demolition of their homes, resulting in at least one person dead and 12 seriously injured; and as it interprets the provisions of relevant international human rights treaties and standards, including the African Charter on Human and Peoples’ Rights, applicable in Nigeria. II Discussion of the legal and human rights issues involved in the case 5. The present case raises questions about the compatibility of Nigeria Police Force Order 237 (Rules for guidance in use of firearms by the police), with international human rights standards, and obligations of Nigeria under international human rights treaties such as the African Charter on Human and Peoples’ Rights to which it is a state party. The Force provides for much wider grounds for the use of lethal force than is permissible under international law and standards. February 2012 Index: AFR 44/005/2012 Amnesty International 6 6. Sections 3(d) 1 and 3(e) of Force Order 237 permit police officers to shoot suspects and detainees who attempt to escape or avoid arrest. Under section 3(e) of Force Order 237, the police are allowed to use firearms to “arrest a person who takes to flight in order to avoid arrest, provided the offence is such that the accused may be punished with death or imprisonment for 7 years or more”. Escaping custody or resisting arrest is punishable with seven years imprisonment under Nigerian legislation. As such, the Force Order 237 allows police officers to shoot with impunity anyone who flees. 7. Section 6 of Force Order 237 instructs police officers that in situations of “riot” “[a]ny ring-leaders in the forefront of the mob should be singled out and fired on”. “Riot” is described as a situation in which “12 or more people must remain riotously assembled beyond a reasonable time after the reading of the proclamation”. 8. The only limitations on the use of force in Force Order 237 are that “firearms must only be used as a last resort” and “if there are no other means of effecting [the suspect’s] arrest, and the circumstances are such that his subsequent arrest is unlikely”. 2 If a police officer shoots at an unarmed man “it would be most difficult to justify the use of firearms.” 3 These provisions are impermissibly broad and do not require the existence of an imminent or grave threat of death or serious injury and have a more lenient standard of necessity than what is required by international standards. 9. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions expressed his concerns about Force Order 237 in his report in January 2006: “These rules practically provide the police carte blanche to shoot and kill at will.” He therefore recommended that Police Order No. 237 “be amended immediately to bring it into conformity with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.” 4 10. The other human right and legal issue involved in this case is whether or not Nigeria has an obligation under the African Charter on Human and Peoples’ to protect its citizens against forced evictions that do not meet international standards. 11. The Nigerian laws and Constitution do not provide an effective remedy against the use of forced evictions. Although the Constitution contains 1 Section 3(d) gives the police the power to use firearms to “arrest a person who being in lawful custody escapes and takes the flight in order to avoid re-arrest; provided that the offence, with which he is charged or has been convicted of, is a felony or misdemeanor”. 2 Force Order 237, Sections 7 and 9. 3 Force Order 237, Section 4. 4 E/CN.4/2006/53/Add.4 February 2012 Index: AFR 44/005/2012 Amnesty International 7 some relevant provisions on fundamental objectives and directive principles of state policy, these objectives and principles express goals, not rights. Although they embrace responsibilities of enormous scope, they are not justiciable in the sense that their non-fulfilment cannot be challenged in Nigerian courts. A Right to life and the use of actual or potentially lethal force by law enforcement officials, including during demonstrations 12. Article 4 of the African Charter on Human and Peoples’ Rights provides: "Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right." Similarly, Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) provides: “ Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life .” 13. The right to life guaranteed under these and similar provisions in other human rights treaties places an attendant obligation on states to ensure the right, and is central to any system for the protection of human rights. According to the African Commission on Human and Peoples’ Rights, “ the right to life is the fulcrum of all other rights. It is the fountain through which other rights flow, and any violation of this right without due process amounts to arbitrary deprivation of life .”5 14. International human rights treaties that permit derogation from certain treaty obligations in time of an officially proclaimed public emergency which threatens the life of the nation do not permit any derogation from states’ obligations to ensure the right to life. 6 The African Charter on Human and Peoples’ Rights contains no derogation clause, which, as the African Commission has pointed out, can be seen as an expression
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