A sitting (sit-in) president should not be spared either.
Soffie
Kayode Oladele <[log in to unmask]> wrote:
To: chart afric <[log in to unmask]>
From: Kayode Oladele <[log in to unmask]>
Date: Fri, 7 Jul 2006 01:42:35 -0700 (PDT)
Subject: [ChatAfriK] Enahoro has proved his case against Abdulsalami - U.S court._,_._,___
Pro democracy activists led by elder statesman Chief Anthony Enahoro have won another round in their legal battle against Nigerian former head of state General Abdulsalami Abubakar to make him accountable for human rights abuses that were perpetrated when he was in government. In the suit filed by a U.S. based Nigerian attorney, Mr Kayode Oladele on behalf of Chief Anthony Enahoro, Dr Arthur Nwankwo and Hafsat Abiola, they are accusing the former Nigerian ruler of alleged torture, inhuman treatment, harassment, illegal arrest and detention and a host of other human rights violations as well as causing the death of late Chief M.K.O. Abiola and his wife, Kudirat. General Abubakar however opposed the suit asking the court to dismiss the suit on the ground that the appropriate place to file the suit was in Nigeria where the alleged abuses took place.
In his ruling on Abubakar’s objection however, the trial Judge, Mr. Matthew F Kennelly of the United States District Court for the Northern District of Illinois said the plaintiffs have been able to prove that Nigeria would not provide them adequate forum to file their suit. He therefore fixed July 13 2006 for trial of the suit when General Abubakar is expected to defend himself in the allegations against him
Excerpts of the ruling:
MATTHEW F. KENNELLY, District Judge:
The defendant, General Abdusalami Abu-bakar, is a former member of the military regime that ruled Nigeria from November 1993 to May 1999. The plaintiffs are Nigerian citizens who were allegedly tortured, or whose parents were allegedly tortured, at Abubakar’s behest because they criticized the military regime while it was in power. They have sued Abubakar under the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350, and the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 note § 2(a). In this decision, the Court undertakes the unenviable task of determining whether the Nigerian legal system affords the plaintiffs a remedy for their alleged injuries or whether that legal system is ineffective and inadequate.
We refer to our task as unenviable because the TVPA’s requirements place the Court in an unusually uncomfortable position. Congress has, in the TVPA, conferred on this country’s judiciary the determination of the adequacy of legal remedies in another country. A court in this country is unlikely to be in a good position effectively to gauge the adequacy of another country’s judicial system.
We note that although the government filed a brief as amicus curiae in the earlier appeal in this case to express its views regarding whether the ATCA creates a private right of action, it has not asked to express its views on the question now before the Court adversary system of justice) upon the ability of counsel to marshal and present evidence that adequately addresses the issue.
Second, the TVPA essentially allows another country’s citizens to sue their own leaders in this country’s courts. Though victims of wrongful imprisonment and torture by dictatorial regimes present appealing cases for judicial intervention, imagine if the shoe were on the other foot. What would be the reaction of our government if an individual – either a United States citizen or a non-citizen were to obtain a judgment in some other country against our Nation’s leaders on the basis that he lacked an adequate legal remedy here for a claim of wrongful detention or mistreatment while in custody? One may reasonably question whether it is wise to confer on the judicial branch the determination of an issue that potentially could affect the conduct of this Nation’s foreign policy.
Our assessment of the wisdom of Congress’ adoption of the ATCA and TVPA, however, can have no bearing on our decision in this case. A court is required to enforce the law as it is, not as one might like it to be. The TVPA directs courts to address whether the plaintiff had an adequate and available remedy in the country where the alleged misconduct occurred. Though this Court is uncomfortable dealing with this issue, we must abide by Congress’ directive.
Facts
According to the plaintiffs’ complaint, from 1993 to 1998, General Abubakar attempted to silence Chief Anthony Enahoro, Arthur Nwankwo, and Hafsat Abiola’s parents, Chief M.K.O. Abiola and Alhaja Kudirat Abiola all vocal advocates of democratic reform in Nigeria through a regular dose of imprisonment and torture. Abubakar allegedly had Chief Abiola imprisoned in 1994 and kept him detained until he died in custody in 1998; imprisoned Enahoro, a diabetic, for four months in 1994 without providing him insulin or proper medical treatment; had Alhaja Kudirat Abiola assassinated in 1996; and caused Nwankwo to be arrested, detained, and flogged over a period of more than two months in 1998.
In 1999, Abubakar, who by then had become Nigeria ‘s head of state, instituted democratic elections in Nigeria , and the military regime came to an end. On February 22, 2001, the plaintiffs filed this lawsuit in the United States , seeking damages under the ATCA.
Abubakar defended the lawsuit by arguing that he was immune from suit under the Foreign Sovereign Immunities Act and that the Court lacked subject matter jurisdiction under the TVPA because plaintiffs had not exhausted their remedies abroad. The Court ruled that Abubakar was entitled to immunity for the acts he allegedly committed while he was head of state but lacked immunity for all other claims. See Abiola v. Abubakar, 267 F. Supp. 2d 907, 916-917 (N.D. Ill.2003).
The Court rejected, however, Abubakar’s argument concerning subject matter jurisdiction. Id. at 910. On interlocutory appeal, the Seventh Circuit affirmed our ruling on the sovereign immunity issue but reversed our ruling on subject matter jurisdiction, citing the Supreme Court’s intervening decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The Seventh Circuit held that the TVPA, along with its attendant exhaustion requirement, provides the only cause of action for aliens seeking compensation for acts of torture abroad. See Enaharo v. Abubakar, 408 F.3d 877, 885 (7th Cir. 2005).
On remand, Abubakar moved for summary judgment on the exhaustion issue. On November 8, 2005, the Court denied Abubakar’s motion, concluding that the plaintiffs had raised a genuine issue of material fact by presenting State Department reports suggesting that the Nigerian judiciary provided an inadequate forum for their claims. See Abiola v. Abubakar, No. 02 C 6093, 2005 WL 3050607, *3 (N.D. Ill. Nov. 8, 2005).
On May 4 and May 5, 2006 , the Court held an evidentiary hearing on the availability of remedies in Nigeria . Abubakar offered evidence that once Nigeria became democratic in 1999, the plaintiffs could have sued Abubakar in Nigeria under the human rights provision of the 1999 Nigerian Constitution or under the African Charter of Human and People’s Rights. In response, plaintiffs offered evidence that the statute of limitations on such actions had run before plaintiffs could have brought an effective suit, i.e., before Nigeria became democratic. Plaintiffs also presented evidence that Nigerian courts are subject to corruption and that court judgments, even today, are regularly ignored by the executive branch.
Abubakar’s evidence primarily consisted of testimony from his expert witness, Adebayo Adaralegbe, a Nigerian lawyer who has nearly eighteen years of legal experience but whose area of expertise is commercial law. May 4, 2006 Adaralegbe testified that during the 1980s and 1990s, the military regime suspended many provisions of the 1979 Nigerian Constitution by enacting various decrees. Id. at 80. Decree 1 suspended those portions of the 1979 Constitution that gave citizens a right to seek redress for human rights violations, and Decree 2 prevented an individual from seeking judicial recourse when he or she was detained by the military. May 4, 2006 Tr. at 80.
Adaralegbe testified that to make way for the 1999 Constitution, the military regime, as it was leaving power, issued a final decree that repealed all of the previous decrees. Id. at 81. The 1999 Constitution then reestablished many of the rights that the earlier decrees had eliminated.
According to Adaralegbe, the 1999 Constitution has a retroactive effect and allows a plaintiff to sue under its human rights provision for violations that occurred prior to its adoption. Id. at 91. In support of this interpretation, Adaralegbe pointed to section 46 of Chapter IV of the Nigerian Constitution, which says, “Any person who alleges that any of the provisions of [the chapter of the constitution dealing with fundamental rights] has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” May 5, 2006 Tr. at 133. He said that the statute of limitations for bringing suits under this provision is one year, though courts may extend that period if the plaintiff accounts for his delay to the satisfaction of the judge.
Adaralegbe also testified that the African Charter, a treaty that was signed by Nigeria in the 1990s, provides a second vehicle for individuals seeking compensation for past human rights violations. He pointed to a 2000 Nigerian Supreme Court case captioned Abacha v. Fawehinmi, where the court held that the decrees issued by the military, particularly Decree 2 and Decree 12, did not alter or abridge the rights under the African Charter, including the right to be free from government sponsored torture. See Def. Ex. 11 at 268.
Adaralegbe also testified that a victim of human rights violations could sue under the Nigerian common law of torts and that the statute of limitations on such suits is six years if brought in the Nigerian state of Lagos. May 5, 2006 Tr. at 113.
Lastly, Adaralegbe discussed the United States Department of State country reports on Nigeria issued over the past several years and expressed concern that the language in the reports remained the same or similar from year to year. Adaralegbe pointed out that the reports discussing the judiciary often begin and end with a practically identical paragraph, which, according to him, suggests that the reports were not the product of an in-depth analysis but, rather, a recycling of the reports from year to year. Id. The report from 2005 reads in part as follows:
Although the law provides for an independent judiciary, the judicial branch remained susceptible to executive and legislative branch pressure. Political leaders influenced the judiciary, particularly at the state and local levels. Understaffing, underfunding, inefficiency, and corruption continued to prevent the judiciary from functioning adequately. Citizens encountered long delays and frequent requests from judicial officials for small bribes to expedite cases. United States Department of State, Country Reports on Human Rights Practices, Nigeria, 2005 (March 2006).
The plaintiffs’ evidence also primarily consisted of expert testimony. Their expert was Femi Falana, a Nigerian lawyer who has practiced for twenty-four years in the area of human rights law. In Nigeria , he represented two of the plaintiffs in this case, M.K.O. Abiola and Enaharo, while they were detained by the military regime. He himself was also detained on two occasions for several months each time, because of his work as a human rights lawyer. Falana has authored a book on human rights enforcement in Nigeria.
Falana agreed with Adaralegbe on a number of points. He agreed that a lawsuit brought under the African Charter or the human rights provision of the 1999 Nigerian Constitution ordinarily carries with it a one year statute of limitations, which the court may extend if it determines that the plaintiff has properly accounted for his or her delay. May 25, 2006 Tr. at 308. He also agreed that rights under the African Charter, including the right to be free from government sponsored torture, were unaffected by the decrees of the military regime. Finally, he agreed that the plaintiff could sue the defendant under the law of tort and that the statute of limitations on such an action is ordinarily six years. Id. at 309. Falana testified, however, that when a plaintiff challenges the acts of a government official in a lawsuit, regardless of whether the suit is brought under the Nigerian Constitution, the common law, or the African Charter, the statute of limitations for the lawsuit is shortened to three months under Nigeria’s Public Officers Protection Act (POPA).
Though the POPA would seem particularly relevant to their case, plaintiffs did not submit a copy of the POPA or any Nigerian case applying the POPA. Rather, they quoted a Nigerian court’s discussion of the POPA without attaching the case or the statute. Pls. Post Hearing Brief at 15. The defendants, however, did submit a case from the Nigerian Court of Appeals that discusses the POPA. See Ex. 16 at 522 (Tafida v. Alhaji Sa’adu Abubakar (1991)). That case quotes the POPA as follows:
”Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority . . . the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect, or default complained of.” The defendants presented no evidence suggesting the POPA would not apply to claims of the type brought by the plaintiffs in this case.
Falana also testified, contrary to Adaralegbe, that the 1999 Constitution does not apply retroactively. Id. at 204. Falana supported his interpretation by citing section 6(6)(d) of the 1999 Constitution, which reads, “judicial powers vested in accordance with the foregoing provisions of this section shall not extend to any action or proceeding relating to any existing law made on or after 15th January of 1966 for determining any issue or question as to the competence of any authority or person to make any such law.”
Continues next week.
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