The United Nations, UN Human Rights Council Working Group on Arbitrary Detention, has indicted both Nigeria and Kenya Governments for the arrest and extraordinary rendition, torture and continued detention of the Leader of the Indigenous People of Biafra, (IPOB), Mazi Nnamdi Kanu, without due process.
UN therefore, asked the Nigerian Government to, “immediate release Kanu unconditionally” and pay him adequate compensations for the arbitrary violation of his fundamental human rights.
It also recommended that government officials responsible for the torture meted to the IPOB Leader be investigated and punished.
The UN body further directed Nigeria to report back within six months of the transmission of its opinions on Kanu’s matter, steps taken to comply with all the recommendations thereof.
It referred the case of Kanu’s torture to Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment for further consideration
The UN Working Group also threatened to take further action to ensure the recommendations are complied with, noting that both Nigeria and Kenya are signatories to the Convention and should comply.
The 16-page report dated July 20, 2022 was adopted on April 4 by the Working Group on Arbitrary Detention at its 93rd session, held between March 30 – April 8, 2022.
The unedited version of the document, was marked:”Opinion No. 25/2022 concerning Mr. Nwannekaenyi Nnamdi Kenny Okwu-Kanu (Nigeria and Kenya).
The Working Group on Arbitrary Detention was established in resolution 1991/42 of the UN Commission on Human Rights.
In accordance with its methods of work, the Working Group, on December 30, 2021, transmitted to the Nigeria and Kenya Governments, a communication concerning
Mr. Nwannekaenyi Nnamdi Kenny Okwu-Kanu.
According to the report, Nigeria replied to the communication on 25 January 2022 while the Government of Kenya did not reply.
Both countries are parties to the International Covenant on Civil and Political Rights.
The Working Group said in the report that Kanu was a victim of State persecution as Nigeria failed to provide convincing explanations with proof that he is guilty of treason and other criminal allegations levelled against him.
“Noting the failure of the Government to explain what actions of Mr. Kanu amounted to such criminal acts and how, and observing the lack of any evidence that any of his actions may in fact amount to such crimes, the Working Group concludes that Mr. Kanu is in fact being persecuted for the peaceful exercise of his rights, most notably his freedom of opinion and expression.
“In the present case, the Government of Nigeria has presented no exceptions permitted under article 19 (3) of the Covenant nor is there any evidence to suggest that Mr. Kanu’s exercise of his right to freedom of opinion and expression was anything but peaceful.
”In fact, the Government has chosen not to provide any explanation for the arrest, detention and subsequent proceedings against Mr. Kanu. In these circumstances, the Working Group concludes that Mr. Kanu’s detention is thus arbitrary under category II,” the UN Working Group said.
The Working Group also said there was no evidence that International laws were observed in the arrest and rendition of Kanu from Kenya.
The 16-page dossier read in part: “In the present case, Mr. Kanu was not furnished with an arrest warrant by Nigerian authorities nor was he promptly informed of the grounds for his arrest in Nigeria.
Consequently, the Working Group finds that Mr. Kanu’s continued deprivation of liberty violates his rights under articles 3 and 9 of the Universal Declaration of Human Rights, article 9 of the Covenant, and principles 2, 4, and 10 of the Body of Principles and constitutes
arbitrary detention under category I.
“Turning to the uncontested allegations that following his rendition to Nigeria, Mr. Kanu remained in pre-trial detention with his trial having been scheduled to commence in January 2022, the Working Group recalls that it is a well-established norm of international law that pre-trial detention should be the exception rather than the rule, and should be ordered for the shortest time possible. Put differently, liberty is recognised under article 9 (3) of the Covenant as the core consideration with detention merely as an exception.
“Therefore, detention pending trial must be based on an individualised determination that it is reasonable and necessary for such purposes as to prevent flight, interference with evidence or the recurrence of crime. Such determination was not carried out in the present case, in violation of Mr. Kanu’s rights under article 9 (3) of the Covenant.
Further, in accordance with article 9 (3) of the Covenant, an arrested person is to be brought before a judge within 48 hours.27 This was not satisfied in the case of Mr. Kanu and the Working Group therefore finds a violation of articles 3 and 9 of the Universal Declaration
of Human Rights, article 9 (3) of the Covenant and principles 11, 37 and 38 of the Body of Principles.
“Furthermore, in order to establish that a detention is indeed legal, anyone detained has the right to challenge the legality of his or her detention before a court, as guaranteed by article 9 (4) of the Covenant. The Working Group wishes to recall that according to the UN Basic Principles and Guidelines on Remedies and Procedures on the Rights of Anyone Deprived of their Liberty to Bring Proceedings before a Court, the right to challenge the lawfulness of detention before a court is a self-standing human right, which is essential to preserve legality in a democratic society.
“This right, which is in fact a peremptory norm of international law, applies to all forms of deprivation of liberty, 29 to “all situations of deprivation of liberty, including not only to detention for purposes of criminal proceedings but also to situations of detention under administrative and other fields of law, including military detention, security detention, detention under counter-terrorism measures.
“Moreover, it also applies “irrespective of the place of detention or the legal terminology used in the legislation. Any form of deprivation of liberty on any ground must be subject to effective oversight and control by the judiciary. This was also denied to Mr. Kanu, thus, violating his right under article 9 (4) of the Covenant.
“Finally, turning to Mr. Kanu’s pre-trial detention in Nigeria, the Working Group recalls that according to international human rights law, in particular article 9 (3) of the Covenant, any person detained while awaiting trial is entitled to trial within a reasonable
time, or otherwise shall be released. Article 14 (3) (c) of the Covenant also guarantees the right of anyone charged with a criminal offence to be tried without undue delay. In the
absence of a substantive response from the Government of Nigeria, the Working Group finds no legitimate grounds for the delays in the trials against Mr. Kanu.
“Consequently, the Working Group finds that the Government of Nigeria failed to establish a legal basis for the detention of Mr. Kanu. His detention is thus arbitrary under
category I.”
The UN Working Group said that both the Nigerian and Kenyan Governments should take responsibility for Kanu’s rights violations.
“The Working Group wishes once again to underscore the collusion between the Governments of Kenya and Nigeria in the rendition of Mr. Kanu and reiterates that both
Governments bear joint responsibility for any violations of Mr. Kanu’s rights in Kenya and
Nigeria.
“The Working Group has already established in its discussion of the detention of Mr. Kanu in Kenya that he was arrested and detained due to the peaceful exercise of his rights (see paras 52-54 above). The Working Group notes that the source has argued the same in relation to Mr. Kanu’s arrest, detention and trial proceedings in Nigeria. Notably, the Government of Nigeria has chosen not to address the substance of these allegations.
“The Working Group notes that it is not contested that Mr. Kanu is accused of the crime of conspiracy to commit a treasonable felony through an agreement with others to be broadcast from London, in view of the establishment of a Biafran sovereignty. The source notes that, while treason consists of “levying war” against Nigeria under Nigerian law, the Federal Government of Nigeria does not allege any action implicating Mr. Kanu in the contemplation, planning, or incitement of war against Nigeria. The source argues that Mr. Kanu was in fact advocating for a peaceful referendum for the establishment of a Biafran
sovereignty, in conformity with international and other relevant laws.
“The Working Group recalls that freedom of opinion and expression, as expressed in article 19 of the Covenant, is an indispensable condition for the full development of the person. It is essential for any society and constitutes the foundation stone for every free and democratic society. It also recalls that freedom of expression includes the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers, and that this right includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, including political opinions.
“Similarly, in Resolution 12/16, the Human Rights Council called on States to refrain from imposing restrictions which are not consistent with article 19 (3), including on the
discussion of government policies and political debate; reporting on human rights; engaging in peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent, religion or belief.”
The UN Working Group further said that the Nigeria Government could not disprove claims by Kanu that he was denied effective lagal representation including access to his US lawyer.
“The source has submitted, and the Government did not address, that Mr. Kanu was denied effective legal representation. The Working Group considers legal representation as being a core facet of the right to a fair trial. Legal assistance should be available at all stages of criminal proceedings, namely, pre-trial, trial, and appellate stages, to ensure compliance with fair trial guarantees. Any denial of access to lawyers substantially undermines and compromises an accused individual’s capacity to defend him or herself in any judicial proceedings.
“As the Working Group has stated in principle 9 and guideline 8 of its Basic Principles, persons deprived of their liberty have the right to legal assistance by counsel of their choice, at any time during their detention, including immediately after the moment of apprehension, and must be promptly informed of this right upon apprehension. Access to legal counsel should not be unlawfully or unreasonably restricted.
“Article 14 (3) (b) of the Covenant entitles defendants to adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing. Defendants must have access to documents and other evidence, including “all materials that the prosecution plans to offer in court against the accused or that could assist the defence.
“Recalling general comment No. 32, a detainee has the right to have “prompt access” to legal counsel, meaning that a lawyer must be able to have private communications and
meetings with the detainee and be able to attend all the investigations without interference or restrictions. A detainee also ought to have access to “effective counsel.”
“All of this was denied to Mr. Kanu. In the Working Group’s view, by failing to allow Mr. Kanu to be represented by lawyers of his choice, including an international counsel, the Government denied Mr. Kanu’s right to legal assistance at all times, which is inherent in the right to liberty and security of the person as well as the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, in accordance with articles 3, 9, 10 and 11 (1) of the Universal Declaration of Human Rights, article 14 of the Covenant, articles 37 (b) and (d) and 40 (2) (b) (ii) and principles 15, 17 and 18 of the Body of Principles and principles 1, 5, 7, 8, 21 and 22 of the Basic Principles on the Role of Lawyers.”
The UN Working Group said Nigeria also failed to disprove that Kanu was a victim of political persecution.
