Thank you Your Honor for this great material. It is indeed a valuable historic piece of document that I hope will soon be revisited in the Third Republic. It reminds me of Kanyiba Kanyi and others before and after them. History will be the unbiased judge.
Highest regards,
Pa. S. Kujabi.
--- On Mon, 3/25/13, Lamin Darbo <[log in to unmask]> wrote:
From: Lamin Darbo <[log in to unmask]>
Subject: Manneh v The Gambia (2008) AHRLR 171 (ECOWAS 2008)
To: [log in to unmask]
Date: Monday, March 25, 2013, 10:42 AM
All
Please refer the ECOWAS Court judgment in the Chief Ebrima Manneh case
LJDarbo
The Gambia: Manneh v The Gambia (2008) AHRLR 171 (ECOWAS 2008)
Manneh v The
Gambia (2008) AHRLR 171 (ECOWAS 2008)
Chief Ebrimah
Manneh v The Republic of The Gambia
Community Court of Justice of the
Economic Community of West African States(ECOWA), suit ECW/CCJ/APP/04/07,
judgment ECW/CCJ/JUD/03/08, 5 June 2008
Judges: Benin, Daboya, Tall
Arbitrary
detention of journalist; calculation of damages
Evidence (failure of
state party to respond to allegations, 4, 6, 10, 20, 28; witnesses, 7)
Admissibility (admissibility
requirements before the ECOWAS Court, 16)
Fair trial (trial
within reasonable time, 21, 22; presumption of innocence, 26)
Personal liberty
and security (arbitrary arrest and detention, 22, 23, 27, 41)
Remedies (compensation,
29-32, 36, 39, 40; release, 44)
Interpretation (international
standards, 33)
1. The
plaintiff is a community citizen, a national of the Republic of The Gambia .
The defendant is a member state of the Economic Community of West African
States (ECOWAS).
2. Femi Falana
with Chinedum Agwarambo (Mrs) and Sola Egbeyinka appeared for the plaintiff.
Defendant failed to enter an appearance.
3. The
plaintiff has come to this Court seeking the following reliefs:
1.
(a) A declaration that his arrest by the National
Intelligence Agency of The Gambia at the premises of The Daily
Observer in Banjul on 11 July, 2006, is illegal and unlawful as it
violates article 6 of the African Charter on Human and Peoples’ Rights which
guarantees his human right to personal liberty.
2.
(b) A declaration that his detention on 11 July
2006, and his continual detention since then without trial is unlawful and a
violation of his right as guaranteed by articles 4, 5 and 7 of the African
Charter on Human and Peoples’ Rights.
3.
(c) An order mandating the defendant and/or its
agents to immediately release the plaintiff from custody.
4.
(d) US$ 5 000 000 (five million United States
dollars) being compensation for the violation of the applicant’s human rights
to dignity, liberty and fair hearing.
4. The
defendant was first served on 31 May 2007 with the application initiation the
proceedings through its High Commission in Abuja, the capital city of the
Federal Republic of Nigeria, where the Court has its seat and also by
registered mail. The defendant failed to file a defence within the thirty day
period stipulated for the filing of a defence without assigning any reasons
for the failure. The Court served a hearing notice on the defendant through
its High Commission in Abuja and by a registered mail on 14 June 2007. The
defendant failed to appear in Court on 16 July 2007 when the case was due for
hearing. The Court adjourned the case to 26 September 2007 to enable the
defendant to enter an appearance and defend the action. A hearing notice was
served on the defendant on 19 July 2007 through its High Commission in Abuja
and by registered mail. Notwithstanding all the efforts of the Court in
getting the defendant to take part in the proceedings, the defendant failed
to enter an appearance or defend the action. Hence the case was heard on 26
September 2007 without the participation of the defendant. However, by a
letter dated 23 August 2007, addressed to the President of the ECOWAS
Commission, a copy of which was received by the Court on 28 September 2007,
the defendant had decided not to ‘participate or attend proceedings fixed for
26 September 2007’. Due to a change in the composition of the panel members
on the case, the case had to be tried de novo. A hearing notice
was accordingly sent to the defendant but again they failed to enter
appearance on 26 November 2007 when the case was heard. Consequently the case
proceeded to trial without the participation of the defendant.
Summary of the facts
5. According to the
facts contained in the plaintiff’s application, (i) the plaintiff is a
community citizen by virtue of his nationality of the Republic of The Gambia
. (ii) The plaintiff is a journalist with the Daily Observer newspaper
based in Banjul , The Gambia. (iii) The Plaintiff was arrested by two
officials of the National Intelligence Agency of The Gambia at the Daily
Observer’s premises in Banjul on 11 July 2006 without any warrant of
arrest. (iv) The reasons for his arrest have not been disclosed by the
government of The Gambia. (v) Efforts by his family, friends and lawyers to
know his whereabouts or have access to him have proved futile. (vi) Since his
arrest the plaintiff has been detained at the National Intelligence Agency
Headquarters, State Central Prison, Kartong, Police Station, Sibanor Police
Station, Kuntaur Police Station and Fatoto Police Station. (vii) The
plaintiff has not been accused or charged with the commission of any criminal
offence. (viii) The conditions under which the plaintiff is detained are
dehumanizing as detainees are made to sleep on bare floor in overcrowded
cells. (ix) The plaintiff has been held in solitary confinement and denied
access to adequate medical care. (x) The plaintiff’s counsel’s letter dated
16 March, 2007 demanding for the release of the plaintiff was ignored by the
defendant.
6. In line
with article 43 of the Court’s Rules of Procedure, the Court demanded that
evidence should be introduced to prove the facts, notwithstanding the absence
of the defendant.
Evidence of
witnesses
7. On 26
November 2007 during the hearing the plaintiff called in three witnesses who
testified on his behalf. The first witness, (PW1) Mr Usman S Darboe, a native
of the Republic of The Gambia and the news editor of the Daily
Observer newspaper said he was present at the time the plaintiff was
arrested. He stated that he has personally known the plaintiff for well over
17 years and has worked with him for seven years. According to him, on 11
July 2006, while they were in the office, the Gambian police came and
arrested the plaintiff. He further stated that he has not seen the plaintiff
since his arrest, but as a journalist he made investigations about him in the
course of his work and was informed that the plaintiff was detained at Mile 2
Central Prison, Banjul . PW1 also said that to the best of his knowledge the
plaintiff has not been charged with any criminal offence. PW1 stated that
sometime during the latter part of July 2006 it came to his knowledge that
the plaintiff had been moved from the National Intelligence Agency (NIA) to
Fatoto police station.
8. The second
witness (PW2), Mr Yaya Dampha, is a journalist with the Foroyaa newspaper
based in The Gambia. He stated that he knew the plaintiff as both of them
worked as journalists in The Gambia. He mentioned that he does not know the
whereabouts of the plaintiff presently but that he was informed of his arrest
in July 2006. PW2 continued that he last saw the plaintiff in December 2006
after his office had a tip off that the plaintiff had been moved from the
Central Prison in Banjul to an unknown location. He then embarked on a search
mission and visited several prisons. He eventually saw the plaintiff in
Fatoto police station when the plaintiff was being escorted back to his cell
after a meal. Mr Yaya Dampha further testified that the Foroyaa newspaper
published the arrest and detention of the plaintiff. This was tendered as
exhibit ‘A’. The publication did not elicit any reaction from either the
police or National Intelligence Agency.
9. The third
witness (PW3), Professor Kwame Karikari, is a native of the Republic of Ghana
and a professor with the University of Ghana , Legon. He is the executive
director of an organization called the Media Foundation for West Africa which
has correspondents in each of the fifteen countries of ECOWAS. They monitor
issues that concern the media and press freedom. Professor Kwame Karikari
does not know the plaintiff in person, but as a journalist, who was working
with the Daily Observer in The Gambia. The organization
received information that the plaintiff had been arrested and detained
without any criminal charge(s) preferred against him in July 2006. This
information was confirmed when they contacted other media men in The Gambia.
The Media Foundation contacted lawyers in The Gambia to facilitate the
release of the plaintiff but they were advised that they could not obtain
justice in The Gambia so they should pursue the matter before the Community
Court of Justice, ECOWAS.
10. The
evidence of these witnesses stood uncontroverted. Even after the evidence of
these witnesses, the Court by a ruling, gave another opportunity to the
defendant to attend the next session to cross-examine the witnesses, and to
present their side of the story, if they so desired, but they still failed or
refused to attend. It is manifestly clear the defendant does not desire to be
heard, so the trial proceeded in default.
11. The facts
to the Court for determination are in respect of the violation of articles 2,
6 and 7(1) of the ACHPR, related to individual freedom, fair hearing and the
prohibition of all forms of arbitrary detention.
Issues for
determination
Issue 1: Whether
the arrest and detention of the plaintiff is justified under the African
Charter on Human and Peoples’ Rights
12. The
competence of the Community court of Justice in applications filed by
individuals arises from articles 9(4) of the 1991 Protocol and 10(d) of the
Supplementary Protocol on the Court of Justice. They provide:
·
Article 9(4) The Court has jurisdiction to
determine cases of violation of human rights that occur in any member state.
·
Article 10(d) Access to the Court is open to
individuals on application for relief for violation of their human rights.
These provisions enable an
individual to access the Court directly in human rights issues, and to give
the Court the competence to entertain such applications.
13. The
application of the plaintiff was primarily premised on article 6 of the
African Charter on Human and Peoples’ Rights which reads as follows:
Every individual shall have the
right to liberty and to the security of his person. No one may be deprived of
his freedom except for reasons and conditions previously laid down by law. In
particular, no one may be arbitrarily arrested or detained. (Emphasis
added).
14. Article
14(g) of the Revised Treaty of the Economic Community of West African States
(ECOWAS) provides for the recognition, promotion and protection of human and
peoples’ rights in accordance with the provisions of the African Charter on
Human and Peoples’ Rights.
15. The effect
of article 6 of the African Charter on Human and Peoples’ Rights as stated
above is that no one shall have his right to liberty limited or restricted
unless it is in accord with a law previously laid down. In other words, the
law under which a person is arrested and/or detained must have been valid and
in force, before or at the time of such arrest and/or detention. Plaintiff alleges
that his rights under article 6 of the African Charter on Human and Peoples’
Rights have been violated and therefore the intervention of this Court is
justifiable under article 9(4) of the Protocol of this Court, as amended.
16. This Court
in the case of Alhaji Hammani Tidjani v Nigeria and 4 Others,
suit ECW/CCJ/APP/01/06, judgment delivered on 28 June 2007 held that
the combined effect of article 9(4) of the Protocol of the Court, as amended,
article 4(g) of the Revised Treaty and article 6 of the African Charter on
Human and Peoples’ Rights is that the plaintiff must invoke the Court’s
jurisdiction by (i) establishing that there is a right recognized by article
6 of the African Charter on Human and Peoples’ Rights; (ii) that this right
has been violated by the defendant; (iii) that there is no action pending
before another international Court in respect of the alleged breach of his
right; and (iv) that there was no previously laid down law that led to the
alleged breach of abuse of his rights.
17. In this
case, applicant alleges his rights have been violated under article 6 of the
ACHPR and seeks an end to be put to it, and this is what was done by hearing
the witnesses.
18. Plaintiff
witness 1 (PW1) stated that he was present when the plaintiff was arrested by
two security operatives of the Republic of The Gambia in the office of the Daily
Observer newspaper where they both worked. PW1 further stated that
though the policemen were not in official uniforms, he knew they were police
officers because he personally knew one of them, one Corporal Sey, from the
National Intelligence Agency.
19. Furthermore,
the arrest of the plaintiff was confirmed by Professor Kwame Karikari,
plaintiff witness 3 (PW3). He stated that his organization, the Media
Foundation for West Africa raised an ‘alert’ in order to get confirmation
about the arrest of the plaintiff when it came to their notice. PW3 stated
that the arrest of the plaintiff was confirmed. PW3 also stated that his
organization made the necessary enquiries in order to secure the release of
the plaintiff but they were told that it was impossible because of the conditions
prevailing at The Gambia at the time. They were therefore advised to pursue
the matter at the Community Court of Justice, ECOWAS. The conduct of the
plaintiff which amounted to a criminal offence for which he was arrested was
not disclosed to him, neither was he told of the law which made that conduct
a crime. PW1 stated that plaintiff was held incommunicado after
his arrest and has since been detained without trial, neither has he been
charged with the commission of any criminal offence known to the law of the
Republic of The Gambia .
20. Plaintiff
witness 2 (PW2) in his evidence stated that he saw the plaintiff at the
Fatoto police station during his visits to several police stations when his
firm, Foroyaa newspaper, got a tip-off that the plaintiff
had been moved from the Central Prison to an unknown destination. PW2 further
stated that though they followed the case of the plaintiff and other
detainees, they were not arraigned before court within the seventy-two hours
stipulated by the Gambian Constitution for detainees to be brought before
court, and that the plaintiff till date has not been brought before court to
his knowledge. All these facts stand uncontroverted, and they appear credible
so the Court accepts them.
21. Article 7
of the African Charter on Human and Peoples’ Rights is very instructive with
regards to the treatment of people once they have been arrested. Article 7(1)
of the African Charter on Human and Peoples’ Rights stipulates thus:
Every individual shall have the
right to have his cause heard. This comprises: (a) the right to an appeal to
competent national organs against acts of violating his fundamental rights as
recognized and guaranteed by conventions, laws, regulations and customs in
force; (b) the right to be presumed innocent until proved guilty by a
competent court or tribunal; (c) the right to defence, including the right to
be defended by counsel of his choice; (d) the right to be tried within a
reasonable time by an impartial court or tribunal.
Article 7(1) clearly states that
every individual shall have the right to have his cause heard and this
comprises among other things the right to be presumed innocent until proven
guilty by a competent court or tribunal, the right to defence, including the
right to be defended by counsel of his choice and the right to be tried
within a reasonable time by an impartial court or tribunal. From the evidence
of PW1, the plaintiff has been denied the right to have his cause heard by an
impartial court or tribunal as the defendant has failed to put him before
such a competent impartial court or tribunal for his guilt or innocence to be
established.
22. The
plaintiff was arrested on 11 July 2006 and has since been detained without
trial and no criminal offence known to the law of the Republic of The Gambia
has been levelled against him for a period exceeding one year. Holding a
person for over a year without trial will be an unreasonable period unless
proper and distinct justification is provided.
23. From the
foregoing, it is clear that the arrest and detention of the plaintiff is
contrary to the rules enshrined in Articles 6 and 7(1) of the African Charter
on Human and Peoples’ Rights.
Issue 2: Whether
the plaintiff is entitled to have his human rights to the dignity of the
person, personal liberty and freedom of movement restored
24. The
fundamental human rights of the individual have been guaranteed by various
human rights instruments. Among the core rights guaranteed by these various
human rights instruments, including the African Charter on Human and Peoples’
Rights are the right to life and the integrity of the person, personal
liberty, freedom from torture and other inhuman and degrading treatment and
the right to political or any other opinion.
25. Article 2
of the African Charter on Human and Peoples’ Rights affirms the recognition
and protection of the basic rights of the individual. Article 2 states that
Every individual shall be entitled
to the enjoyment of the rights and freedoms recognized and guaranteed in the
present Charter without distinction of any kind such as race, ethnic group,
colour, sex, language, religion, political or any other opinion, national and
social origin, fortune, birth or other status.
26. Article 6
of the African Charter on Human and Peoples’ Rights clearly states that the
individual shall have the right to his liberty and personal freedom, with the
proviso that that right may only be limited or restricted for reasons and
conditions previously laid down by law. It is clear from the provisions of
article 6 of the African Charter on Human and Peoples’ Rights that there is a
presumption of innocence in favour of the liberty of the individual.
Therefore, any infringement on the liberty of the individual must clearly be
in conformity with reasons and conditions previously laid down by law,
otherwise any such deprivation or limitation of the liberty of the individual
cannot be sustained.
27. From the
facts of the present application, which facts have not been disputed, the
plaintiff was arrested without a warrant of arrest. The reason for the arrest
of the plaintiff has not been communicated to him. He has been detained since
his arrest without any criminal charges being levelled against him. He has
not been arraigned before any court of competent jurisdiction in order to
ascertain his guilt or innocence. This is clearly contrary to the provisions
of articles 2 and 6 of the African Charter on Human and Peoples’ Rights which
dictate that every individual, regardless of race, ethnic group, colour, sex,
religion, political opinion or other like distinction shall have the right to
liberty and to the security of his person in the absence of any reasons and
conditions previously laid down by law.
28. The defendant
refused to appear to defend this claim. Since the defendant has failed to
establish that the arrest and detention of the plaintiff was in accord with
the provisions of any previously laid down law, the plaintiff is entitled to
the restoration of his personal liberty and the security of his person.
Issue 3: Whether the
plaintiff is entitled to monetary compensation in the sum of US$ 5 000 000
29. Compensation
that is given to a party that has been wronged in a legal action is referred
to as damages. Generally speaking, there are three kinds of damages: special
damages, general damages, and punitive damages. Special damages are the
enumerable or quantifiable monetary costs or losses suffered by the
plaintiff. For example, medical costs, repair or replacement of damages
property, lost wages, lost earning potential, loss of business, loss of
irreplaceable items, loss of support, etc. Special damages have to be
specifically pleaded and proved in order for them to be awarded. This is
compensation for losses that can easily be quantified and proved. The loss of
a plaintiff’s income as a result of an unlawful detention for instance can
easily be proved and claimed accordingly as a special damage. Where the
amount claimed for damages is quantified in the claim, the plaintiff is
required to introduce facts to justify it. However, the plaintiff failed to
plead and prove any ground under which the amount ought to be awarded. In the
absence of any proven losses which will justify the award of special damages,
no special damages will be awarded the plaintiff.
30. General
damages are items of harm or loss suffered, for which only a subjective value
may be attached. Examples of this might be pain, physical suffering,
emotional trauma or suffering, loss of companionship, loss of consortium,
disfigurement, loss of reputation, loss or impairment of mental or physical
capacity, loss of enjoyment of life, etc.
31. Generally,
punitive damages are not awarded in order to compensate the plaintiff, but in
order to reform or deter the defendant and similar persons from pursuing a
course of action such as that which damaged the plaintiff. Punitive damages
are awarded only in special cases.
32. Having
concluded in issues 1 and 2, above, that the plaintiff’s right to his
personal liberty has been abused, the plaintiff is entitled to some damages
for the wrongs that he has suffered. The amount of damages, however, is
dependent on the facts of this application and the relevant rules governing
the award of damages. Learned Counsel for the plaintiff prayed this
honourable Court to award the sum of $ 5 000 000 as compensation to the
plaintiff for his unlawful arrest and detention. Counsel stated that the
essence of this Court awarding such a substantial amount is to deter other
member states of the Community from engaging in violations of the human
rights of Community citizens contrary to their obligations under domestic and
international law. Counsel urged this Court to award some punitive damages in
favour of the plaintiff in order to deter governments of member states from
infringing on the rights of Community citizens with impunity. However, as
stated earlier, punitive damages are awarded only in limited circumstances as
it is not awarded to compensate the plaintiff but to deter the defendant and
others from very reprehensible behaviour.
33. Although
this Court is not bound by the precedents of other international courts, it
can draw some useful lessons from their judgments, especially when the issues
involved are similar: in other words, such decisions can be of persuasive
value to this Court.
34. The
European Court of Human Rights has awarded damages to successful plaintiffs
whose human rights were violated by various governments of the European
Union. In Selmouni v France [2005] CHR 237, the European
Court of Human Rights awarded damages to the plaintiff who established to the
satisfaction of the Court that the treatment meted out to him by the French
authorities amounted to torture, inhuman and degrading treatment contrary to
the provisions of article 25 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms.
35. The
European Court of Human Rights similarly awarded damages to the plaintiff in
the case of Cenbauer v Croatia [2005] CHR 429 when the Court
held that he had been treated in a way that violated article 25 of the
European Convention on Human Rights.
36. Notwithstanding
the fact that the European and the Inter-American Courts have been in
existence for long, there is no record available to us that showed that any
of them had awarded punitive damages in a human rights cause.
37. In the
European Court of Human Rights, applicants first argued for the award of
punitive damages in the case of Silver and Others v. United Kingdom, 5
EHRR 347, 61 Eur Ct HR (ser A). This case was referred to the Court in March
1981 by the European Commission of Human Rights. The case originated in seven
applications against the United Kingdom of Great Britain and Northern Ireland
lodged with the Commission on various dates between 1972 and 1975. The
applicants complained that the stopping by the prison authorities of a number
of letters written by or addressed to them constituted a violation of
articles 8 and 13 of the European Convention of Human Rights and asked for
general damages for violation of their rights. In addition, three of the
applicants claimed punitive damages against the government of the United
Kingdom . Among the issues for determination by the Court was whether the
acts complained of by the applicants amounted to a violation of their rights
under articles 8 and 13 and whether the applicants were entitled to the
damages sought, including that of the punitive damages. By judgment of 25
March 1983, the Court held that the stopping by the prison authorities of a
number of letters written by or addressed to the applicants had given rise to
violations of articles 8 and 13 of the Convention. The Court, however, denied
the request for punitive damages, without discussing the merits or otherwise
in the claim. The attitude of the Court in the case cited above clearly
indicated that the Court was not in favour of awarding punitive damages in a
human rights cause such as the one that was before them.
38. In Anufrijeva
and Another v Southwark London Borough Council; R (Mambakasa) v Secretary of
State for the Home Office; R(N) v Secretary of State for the Home Office[2004]
QB 1124 it was held that
Where an infringement of an
individual’s human rights has occurred, the concern will usually be to bring
the infringement to an end and any question of compensation will be of
secondary, if any, importance.
This point was emphasized in R
( Greenfield ) v Secretary of State for the Home Department [2005]
UKHL 14, where Lord Bingham noted that the focus of the Convention is on the
protection of human rights and not the award of compensation.
39. Thus it is
clear that the object of human rights instruments is the termination of human
rights abuses and in cases where the abuse has already taken place, restoration
of the rights in question. Compensation is awarded in order to ensure ‘just
satisfaction’ and no more. It is not the object of human rights instruments,
including the African Charter on Human and Peoples’ Rights on which this
application is premised to award punitive damages against offenders of the
instruments. This by no means deprives a successful human rights victim from
claiming monetary compensation in appropriate cases, particularly where
special damages are pleaded and proven at the trial.
40. With regard
to general damages, the peculiar circumstances of this case would be taken
into account. Plaintiff was arrested on 11 July 2006 and has since been
detained. He has not been charged with any criminal offence and has not been
put to trial before any court of competent jurisdiction. He has not even been
told of the reason for his arrest. He has been held incommunicado.
Plaintiff is a journalist who was working and living a normal life before he
was arrested and detained. The Court considers an award of compensation to be
justified in these circumstances.
Decision
41. The Court
has found that the applicant was arrested on 11 July 2006 by the police force
of The Gambia and has since been detainedincommunicado, and without
being charged. He has not been told the reasons for his arrest, let alone the
fact that it was in accord with a previously laid down law. The Court holds
these acts clearly violate the provisions of articles 2, 6 and 7(1) of the
African Charter on Human and Peoples’ Rights. Furthermore, in view of the
fact that these violations of applicant’s human rights were caused by the
defendant, which refused to appear in Court, it entitles the applicant to
damages. And the Court considers that this violation should be terminated and
the dignity of the applicant’s person is to be restored.
Costs
42. The plaintiff is
adjudged to be entitled to the costs of this application to be borne by the
defendant, as will be assessed, under and by virtue of article 66 of the
Court’s Rules of Procedure.
Reasons
43. For these
reasons, the Community Court of Justice, sitting in public after hearing the
applicant, in the absence of the defendant who refused to appear, in first
and last resort, considering article 4(g) of the Revised Treaty, as well as
articles 2, 6 and 7(1) of the African Charter on Human and Peoples’ Rights,
and also the Supplementary Protocol of the Court and the Court’s Rules of
Procedure, declares this application to be admissible in human rights and the
Court enters judgment for the plaintiff against the defendant, who is liable
for this violation.
Orders
44. Consequently,
the Court orders:
·
That the Republic of The Gambia releases Chief
Ebrimah Manneh, plaintiff herein from unlawful detention without any further
delay upon being served with a copy of this judgment;
·
That the human rights of the plaintiff be
restored, especially his freedom of movement;
·
The Republic of The Gambia pay the plaintiff the
sum of one hundred thousand United States Dollars (US$100 000) as damages;
·
The defendant to pay the costs of this action to
be assessed.
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