BEFORE THE

AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS

Communication 370/09

Social and Economic Rights Action Center v. Nigeria

APPLICANTS BRIEF IN SUPPORT OF ADMISSIBILITY PURSUANT TO ARTICLE 56 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS

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TABLE OF CONTENTS INTRODUCTION................................................................................................................... 1 FACTUAL BACKGROUND................................................................................................. 1 I. The Evictions and Their Aftermath .......................................................................... 1 II. The Evictees Attempts to Secure a Local Remedy ................................................. 2 A. The Courts............................................................................................................. 3 i. Initial Proceedings. ............................................................................................... 3 ii. The Appeal............................................................................................................ 4 iii. Subsequent Trial Court Proceedings................................................................. 4 iv. Current Status of Proceedings........................................................................... 6 B. Other Avenues of Redress Pursued by the Evictees ............................................. 8 i. The Oputa Commission ........................................................................................ 8 ii. Legislative Efforts................................................................................................. 8 ARGUMENT........................................................................................................................... 9 I. The Communication Satisfies Article 56(5)s Exhaustion Requirement................ 10 A. The Maroko Evictees Are Not Required to Meet the Exhaustion Requirement Because Local Remedies Are Not Available or Effective. ........... 10 i. Local Remedies Are Unavailable Because the Courts Are Unwilling to Act................................................................................................................... 12 ii. Local Remedies Are Ineffective Because There Is Little Prospect of Success............................................................................................................ 13 iii. Local Remedies Are Unavailable and Ineffective Because of the Scale of the Human Rights Violations ..................................................................... 14 B. Even if Local Remedies Were Available and Effective, the Maroko Evictees Have Satisfied Article 56(5) Because the Local Remedies Have Been Unduly Prolonged. ..................................................................................... 15 C. The Communication Satisfies the Principles that Undergird the Exhaustion Requirement..................................................................................... 18 II. The Communication Satisfies All of Article 56s Remaining Admissibility Requirements. ......................................................................................................... 20 A. The Communication Indicates Its Authors. ........................................................ 20 B. The Communication is Compatible with the Charter of the African Union and with the African Charter............................................................................... 20 i. Compatibility Ratione Materiae.......................................................................... 20 ii. Compatibility Ratione Personae ......................................................................... 21 C. The Communication Is Not Written in Disparaging or Insulting Language............................................................................................................. 21 D. The Communication Is Not Based Exclusively on News Disseminated Through the Mass Media. ................................................................................... 22 E. The Communication Is Timely. .......................................................................... 23

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F.

The Communication Does Not Raise Claims that Have Been Settled by the Government of Nigeria or Resolved in any Other International Forum. ................................................................................................................. 23

CONCLUSION ..................................................................................................................... 24

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TABLE OF AUTHORITIES INTERNATIONAL INSTRUMENTS African [Banjul] Charter on Human and Peoples Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 217, 245 (1982) ..................................................................... passim American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 ...........................................................................................38, 50 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], 1465 U.N.T.S. 85..............................................51 International Convention on the Elimination of All Forms of Racial Discrimination, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195........................................51 International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, adopted by G. A. Res 56/83 (2001) (annex), corrected in U.N. Doc. A/56/49 (Vol. 1)/Corr. 4.....................................67 Optional Protocol to the Convention on the Elimination of Discrimination against Women, G.A. res. 54/4, annex, 54 U.N. GAOR Supp. (No. 49) at 5, U.N. Doc. A/54/49 (Vol. I) (2000), 2131 U.N.T.S. 83...................................................51 Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302 ...................................................................51, 74 AFRICAN COMMISSION CASES Amnesty International and Others v. Sudan, Comms. 48/90, 50/91, 52/91, 89/93, 13th Activity Report (1999)................ passim Article 19 v. Eritrea, Comm. 275/2003, 22nd Activity Report (2007)............................................ passim Bakweri Land Claims Committee v. Cameroon, Comm. 260/02 (2004)............................................................................................69 Centre on Housing Rights and Evictions v. Sudan, Comm. 296/05 (2006)....................................................................37, 44, 45, 46, 76

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Chinhamo v. Zimbabwe, Comm. 307/2005, 23rd Activity Report (2007).........................................63, 64, 66 Diakit v. Gabon, Comm. No. 73/92, 13th Activity Report (2000)....................................................40 Dioumessi and Others v. Guinea, Comm. 70/92, 9th Activity Report (1995).............................................................61 Ilesanmi v. Nigeria, Comm. No. 268/2003, 18th Activity Report (2005)........................................37, 44 Jawara v. The Gambia, Comm. 149/96, 13th Activity Report (2000)................................................ passim Ligue Camerounaise des Droits de lHomme v. Cameroon, Comm. No. 65/92, 10th Activity Report (1997)....................................................69 Malawi African Assn and Others v. Mauritania, Comms. 54/91, 61/91, 64/92, 68/92, 78/92, 98/93, 164-196/97, 210/98, 13th Activity Report (2000)........................................................................... passim Modise v. Botswana, Comm. No. 97/93, 14th Activity Report (2000)................................................... 49 Modise v. Botswana, Comm. No. 97/93, 10th Activity Report (1997)....................................................49 Mouvement des Rfugis Mauritaniens au Sngal v. Sngal, Comm. 162/197, 11th Activity Report (1997).......................................................64 Mpaka-Nsusu v. Zaire, Comm. No. 15/88, 7th Activity Report (1994)......................................................76 Odjouoriby v. Benin, Comm. 199/97, 17th Activity Report (2004).........................................................49 Rencontre Africaine pour la Dfense des Droits de lHomme v. Zambia, Comm. 71/92, 10th Activity Report (1996)...........................................................39 Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Comm. 155/96, 15th Activity Report (2001).............................................55, 57, 58 Tsikata v. Ghana, Comm. No. 322/2006, 21st Activity Report (2006) ........................................54, 74

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World Organisation Against Torture and Others v. Zaire, Comms. 25/89, 47/90, 56/91 & 100/93, 9th Activity Report (1995).....................57 Zegveld and Ephrem v. Eritrea, Comm. No. 250/2002 (2003) .................................................................................49 OTHER AFRICAN COMMISSION DOCUMENTS Afr. Commn on Human & Peoples Rights, Communication Procedure: Information Sheet No. 3............................................49 Rules of Procedures of the African Commission on Human and Peoples Rights, adopted on the October 6, 1995. ...........................................................................2,3 OTHER INTERNATIONAL HUMAN RIGHTS CASES A. T. v. Hungary, Comm. on the Elimination of Discrimination against Women, Comm. No. 2/2003, U.N. Doc. CEDAW/C/32/D/2/2003 (2005)..........................51 Akdivar and Others v. Turkey, Eur. Ct. H.R., Case 99/1995/605/693 (1996)...................................................38, 39 Arredondo v. Peru, Human Rights Comm., Comm. 688/1996, CCPR/C/69/D/688/1996 (2000) ............................................................................51 C. v. Australia, Human Rights Comm., Comm. 900/1999, U.N. Doc CCPR/C/OP/8 (2002). ...........................................................................44 da Silva Cassiano and Others v. Brazil, Case 12.198, Report No. 51/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 164 (2004). ...................50 Des Fours Walderode & Kammerlander v. Czech Republic, Human Rights Comm., Comm. 747/1997, U.N. Doc. CCPR/C/73/D/747/1997 (2001) ...........................................................51 Dimitrijevic v. Serbia and Montenegro, Comm. against Torture, Comm. No. 207/2002, U.N. Doc. CAT/C/33/D/207/2002 (2004). ............................................................51 Dimitrov v. Serbia and Montenegro, Comm. against Torture, Comm. No. 171/2000, U.N. Doc. CAT/C/34/D/171/2000 (2005). ............................................................51

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Durmic v. Serbia and Montenegro, Comm. on the Elimination of Racial Discrimination, Comm. No. 29/2003, U.N. Doc. CERD/C/68/D/29/2003 (2006)..........................51 Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) of the American Convention on Human Rights), Advisory Opinion No. OC-11/90, Inter. Am. Ct. H.R. (Ser. A) No. 11 (1990) ...........................................................38 Oliveira v. Brazil, Case 11.694, Report No. 36/01, Inter-Am. C.H.R., OEA/Ser.L/V/II.111 Doc. 20 rev. at 178 (2000). ....................50 Portugal v. Panama, Case 357/01, Report No. 72/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 376 (2002). ...............................................50, 67 Restrepo v. Colombia, Case 11.726, Report No. 84/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 185 (2000). ..................................................50 Sarma v. Sri Lanka, Human Rights Comm., Comm. 950/2000, U.N. Doc. CCPR/C/78/D/950/2000 (2003) ...........................................................51 Sassen van Elsloo Otero and Torres Herbozo v. Ecuador, Petition 183/02 , Report No. 70/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 284 (2002). ...................................................................................50 Semey v. Spain, Human Rights Committee, Comm. 986/2001, U.N. Doc. CCPR/C/78/D/986/2001 (2003) ...........................................................38 Tames v. Brazil, Case 11.516, Report No. 19/98, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 112 (1997). ........................50 Velsquez Rodrguez Case, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988). ...............................................................38 Weinberger v. Uruguay, Human Rights Comm., Comm. 28/1978, U.N. Doc. CCPR/C/OP/1 at 57 (1984) ..................................................................51 DOMESTIC STATUTES Fundamental Rights (Enforcement Procedure) Rules, 1979..................................12, 18, 24

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High Court of Lagos State (Civil Procedure) Rules 2004. ................................................18 NATIONAL COURT PROCEEDINGS Kokoro-Owo and Others v. Lagos State Gov. and Others, Appeal No. CA/L/210M/90, Judgment (Court of Appeal at Lagos, May 4, 1995) ............12, 13 Kokoro-Owo and Others v. Lagos State Gov. and Others, Case No. M/394/90 Amended Statement (Jan. 20, 2004). .....................................................................17 Motion Ex-Parte, July 11, 1990. ............................................................................10 Motion on Notice (and accompanying schedule) (Feb. 17, 1998).........................15 Motion on Notice (and accompanying schedule) (Mar. 13, 1998). .......................15 Motion on Notice (Feb. 17, 2003). ........................................................................16 Notice of Preliminary Objection (Dec. 18, 2002)..................................................16 Notice of Preliminary Objection (May 6, 2003)....................................................17 Ruling (February 2, 2007)......................................................................................17 Written Address Opposing the 1st and 2nd Defendants Notice of Preliminary Objection Dated the 6th Day of May 2003 (May 26, 2006). .........................................................................................................17 Written Argument in Support of the Notice of Preliminary Objection Dated 6th May 2003 (April 5, 2006). ........................................................17 OTHER AUTHORITIES Amnesty International, Nigeria: Making the destitute homeless-forced evictions in Makoko, Lagos State (2006) ..............................................................................5, 29 Centre on Housing Rights and Evictions, Housing Rights in West Africa: Report of Four Fact-Finding Missions (2004). .............................................................5, 29 Dare Babarinsa and Others, Good-bye Maroko: Lagos State authorities uproot 300,000 Maroko residents and leave a huge refugee problem behind, Newswatch (July 30, 1990). .............................................................................11, 72 Lagos State House of Assembly, Report on the Petition from the Maroko Evictees, April 25, 2005.........................................................................................32 Letter from S.A. Aiyeyemi to General Ibrahim Babangida, 9 July1990. ............................8

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Malagu Oumarou-Sanda, Sorrow, Tears and Blood the Maroko Demolition, Island News (July 19, 2004)...................................................................................12 No going back on relocation of Maroko residents, says Rasaki, The Guardian, July 10, 1990. ................................................................................42 Report Submitted by the Human Rights Violations Investigation Commission, May 2002, Vol. 7. ............................................................................................30, 31

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INTRODUCTION 1. On behalf of the former residents of the Maroko District in Lagos, Nigeria, the Social and Economic Rights Action Center (SERAC or the Applicant) respectfully submits this brief on the admissibility of Communication 370/09, captioned Social and Economic Rights Action Center v. Nigeria (hereinafter the Communication).1 2. The Communication was submitted to the African Commission on Human and Peoples Rights (the Commission) on December 3, 2008. The Commission was seized of the Communication at the 45th Ordinary Session which took place in The Gambia during May 13-27, 2009. As directed in the Commissions Notification of Seizure, received by SERAC in August 2009, SERAC submits these observations in accordance with Article 56 of the African Charter on Human and Peoples Rights (hereinafter the African Charter)2 and Rule 117(1) of the Rules of Procedures of the Commission.3 FACTUAL BACKGROUND 3. SERAC has detailed the factual and legal basis of the Maroko evictees claims under the African Charter in the Communication. See Communication, 1-37. As stated in the Communication, SERAC will provide the requisite factual detail and supporting evidence on the merits of the Maroko evictees claims at the merits phase of these proceedings. See id. 7 n.3. For the Commissions ease of reference, however, SERAC here provides a brief summary of the events and circumstances giving rise to the claims, as well as additional relevant factual information and evidence regarding the Maroko evictees attempts to obtain redress from the Federal Republic of Nigeria (Nigeria or the Respondent State.). I. The Evictions and Their Aftermath

4. On July 14, 1990, during the military dictatorship of General Ibrahim Babangida, the Lagos State government, under the direction of its governor Colonel Raji Rasaki, staged a military assault on the town of Maroko, a densely populated and thriving
1

SERAC does not believe there is a basis for the state of Nigeria to challenge the Communications admissibility. Should Nigeria raise any question as to admissibility, however, SERAC hereby respectfully requests the opportunity to submit further written observations in response and to address the Commission orally at its 46th Ordinary Session in The Gambia in November 2009. African [Banjul] Charter on Human and Peoples Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 217, 21 ILM 58 (1982), entered into force October 21, 1986. Rules of Procedures of the African Commission on Human and Peoples Rights, adopted October 6, 1995.

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settlement located on what was then the outskirts of Lagos. Having received no formal notice, Marokos 300,000 inhabitants were forcibly evicted during the course of the next twelve days, as bulldozers demolished their homes, schools, and other buildings. Armed soldiers beat them as they fled, looting their belongings and destroying their homes, livelihoods and community. 5. The scattered evictees faced and continue to face appalling living conditions. Many endured homelessness and disease in the immediate aftermath of the eviction, which took place at the height of the rainy season; and some died as a result. Many evictees, including most of those who were tenants of Marokos 10,000 property owners, scattered to the slums of Lagos or elsewhere. Many remain with no housing at all. Others sought shelter in several half-built and abandoned government housing estates at Ilasan, Ikota, and Epe. The government attempted again to evict those who had taken refuge in these housing estates. After being forced to suspend these efforts because of the public outcry following the Maroko demolition, the government claimed to have re-settled these evictees. Even those evictees who have fared the best now dwell in dilapidated and dangerous accommodations, most with no sanitation, water supply, or electricity. The evictees live in debilitating poverty due to the loss of jobs and businesses and because of the difficulty in accessing the economic centers of Lagos. They have also suffered from abysmal health conditions, experienced severe disruption of their childrens education and faced long-term separation and fragmentation of their families.4 6. The evictees confront ongoing persecution by the Nigerian government, which in 2007 demolished some of the residential structures built at the Ilasan housing estate by evictees who had been resettled in housing that had not yet been built. More recently, agents of the Lagos State government have again threatened to evict the displaced of Maroko from Ilasan altogether. 7. To this day, none of the evictees have been offered any compensation by the Lagos State government for the devastating losses suffered in 1990 or since, despite continual attempts by community leaders during the past 19 years to seek some form of redress. II. The Evictees Attempts to Secure a Local Remedy

8. In the 19 years since the destruction of their homes and livelihood, as they struggled with the short and long term consequences of the eviction, the evictees have diligently but unsuccessfully pursued efforts to obtain relief from the Respondent State in
4

Several human rights organizations have examined the plight of the Maroko evictees and concluded that the Nigerian government engaged in a gross violation of human rights and failed to live up to its international obligations. See, e.g., Centre on Housing Rights and Evictions, Housing Rights in West Africa: Report of Four Fact-Finding Missions (2004), at 27-32 (hereinafter COHRE Report), attached hereto as Exhibit 1; Amnesty International, Nigeria: Making the destitute homeless-forced evictions in Makoko, Lagos State (2005), 3.1 attached hereto as Exhibit 2.

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every forum available to them. Indeed, even before the demolitions began, the evictees appealed to the Nigerian federal government5 and the courts for a remedy, but to no avail. A. The Courts.

9. Since learning of the planned demolition through newspaper and radio reports a mere few days before the scheduled date, the evictees have actively sought assistance from the courts in the form of declaratory and injunctive relief and, after completion of the demolition, compensation for the losses they had suffered (and continue to suffer). Almost two decades later, however, the courts have yet to make any serious effort to address their claims. i. Initial Proceedings.

10. On July 11, 1990, four days after the Maroko news reports of the impending evictions first appeared and three days before the deadline given by the government for the commencement of the demolition of Maroko, a group of Maroko residents brought a legal action in the High Court of Lagos State.6 The residents sought a declaration that the proposed demolition violated their fundamental rights and their right to the enjoyment of their property under the Nigerian constitution, as well as an emergency interim injunction restraining the government from carrying out the demolition.7 11. The Chief Judge of the Lagos High Court, however, assigned the case to a trial judge who was not scheduled to sit until July 16, 1990two days after the deadline given by Colonel Rasaki for the eviction and demolition.8 This precluded any possibility of a timely hearing on the injunction. On July 13, the Maroko residents submitted a further affidavit of urgency in support of their request for an injunction urging the High Court to halt the demolition, but the High Court still took no action on their application. Despite having several days notice of the planned demolition, sufficient for an emergency application to be heard, the court simply let the demolition proceed.

See Letter from S.A. Aiyeyemi to General Ibrahim Babangida, July 9, 1990, attached hereto as Exhibit 3. At the commencement of these proceedings, the evictees were represented by the Civil Liberties Organization. Subsequently the representation was taken over on a pro bono basis by the law firm of Olisa Agbakba & Associates. Currently, the evictees are represented in the High Court proceedings by SERAC, the author of this Communication. See Kokoro-Owo et al. v. Lagos State Gov. et al., Case No. M/394/90, Motion Ex-Parte, July 11, 1990, attached hereto as Exhibit 4. Dare Babarinsa et al., Good-bye Maroko: Lagos State authorities uproot 300,000 Maroko residents and leave a huge refugee problem behind, Newswatch (July 30, 1990) at 17 (hereinafter Good-bye Maroko), attached hereto as Exhibit 5.

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12. When the application was finally heard on July 16, 1990, after the demolition had commenced, it was treated with the same lack of urgency. The trial judge improperly refused the application on erroneous procedural grounds (namely, that the issues raised were proprietary in nature and thus did not relate to enforcement of the applicants fundamental rights under Nigerias Fundamental Rights (Enforcement Procedure) Rules, 1979).9 The judge then dismissed the application for an injunction as moot, because, as a result of the courts own inaction, the demolition had already taken place.10 In fact, although a large number of structures had already been damaged or destroyed, the demolition was to continue unabated for another ten days, until July 25, 1990.11 The court had the power, even belatedly, to forestall a significant amount of the damage, and to prevent the now irreversible destruction of the Maroko community, and yet it did nothing. ii. The Appeal.

13. On July 19, 1990, within days of the trial courts July 16, 1990, denial of their claim, the evictees filed an appeal. The Nigerian Court of Appeal took no interlocutory action to halt the ongoing demolition, and the appeal languished without a decision for nearly five years. On May 4, 1995, the Court of Appeal at last issued its ruling reversing the trial judges procedural ruling, and reinstating the evictees initial application.12 Nevertheless, although the Court of Appeal found it had cause itself to grant leave for the evictees to pursue their claim on the merits, it chose to remit the case to the High Court for further proceedings, introducing a further unnecessary delay. iii. Subsequent Trial Court Proceedings.

14. With the case back in the High Court of Lagos State, the evictees promptly sought to move the proceedings forward. As required under the applicable procedural rules, and because the Court of Appeal had not granted leave to proceed directly to the merits, the applicants were forced to file, on or around July 20, 1995, a Motion on Notice with the Lagos High Court for a hearing on the July 11, 1990 applicationessentially restarting the entire legal process before the courts.

Fundamental Rights (Enforcement Procedure) Rules, 1979, available at http://www.nigerialaw.org/FundamentalRights(EnforcementProcedure)Rules1979.htm. See Kokoro-Owo et al. v. Lagos State Gov. et al., Appeal No. CA/L/210M/90, Judgment (Court of Appeal at Lagos, May 4, 1995), at 3, attached hereto as Exhibit 6. See Malagu Oumarou-Sanda, Sorrow, Tears and Blood the Maroko Demolition, Island News (July 19, 2004) at 4 (hereinafter Sorrow, Tears and Blood), attached hereto as Exhibit 7 (noting that the demolition began in the morning of July 14, 1990 and that for 12 days and 12 nights, the bulldozers worked . . . [to] reduc[e] . . . [the community] to rubble[]). See Judgment, note 10, above, at 4) (noting that the trial judge relied on an erroneous submission on a question of law).

10

11

12

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15. In February and March 1998, the evictees filed and served Amended Statements in order to add new applicants to substitute for those who had died awaiting a resolution of the case and to add claims for damages because the government had completed the demolition after the courts had failed to halt it.13 16. After many years of deliberate delay, in December of 2002, the Lagos State government filed a Preliminary Objection to the evictees claims.14 It did not, however, file written arguments in support of its objections. In February 2003, the government sought leave to file its counter-statement of facts and sought a further extension of time to file its written argument.15 As grounds for this extension, the government asserted that it had not been served with the evictees Statementthe document which provides a brief summary of the grounds giving rise to the applicants claims and essentially initiates the case.16 At that point, the litigation had already been pending for over twelve years and the government had participated in two appeals and many years of High Court proceedings. In addition, the government had at that point been served with the evictees Amended Statements on at least two prior occasions.17 17. In May 2003, the government renewed its Preliminary Objection to the evictees application, attaching a counter-statement of facts, but neglecting to include its written argument.18 In December 2003, the court ordered the evictees to re-file and re-serve their Amended Statement, which they promptly did in January 2004.19 Following a series of adjournments by the court, the government finally filed its written argument in support of its Preliminary Objection in April 2006, nearly three years after the renewed Preliminary Objection was filed.20 The evictees promptly filed their written response to the objection in
13

See Kokoro-Owo, Case No. M/394/90 Motion on Notice (and accompanying schedule) (Feb. 17, 1998), attached hereto as Exhibit 8; Kokoro-Owo, Case no. M/394/90, Motion on Notice (and accompanying schedule) (March 13, 1998), attached hereto as Exhibit 9. See Kokoro-Owo, Case no. M/394/90, Notice of Preliminary Objection (December 18, 2002), attached hereto as Exhibit 10. See Kokoro-Owo, Case no. M/394/90, Motion on Notice (February 17, 2003), attached hereto as Exhibit 11. Id. 3. See 15, above. See Kokoro-Owo, Case no. M/394/90, Notice of Preliminary Objection (May 6, 2003), attached hereto as Exhibit 12. See Kokoro-Owo, Case no. M/394/90, Amended Statement (January 20, 2004), attached hereto as Exhibit 13. See Kokoro-Owo, Case no. M/394/90, Written Argument in Support of the Notice of Preliminary Objection Dated 6th May 2003 (April 5, 2006), attached hereto as Exhibit 14.

14

15

16

17

18

19

20

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May 2006.21 Eight months later, in February 2007, the court issued its ruling denying defendants Preliminary Objection.22 iv. Current Status of Proceedings.

18. After the denial of the Preliminary Objection, the evictees, who since 2005 have been represented in the High Court proceedings by SERAC (the author of the present Communication) believed they would finally receive a hearing on their claims and achieve a resolution of the (then) 17 year old litigation. The trial court, however, again refused to order a hearing on the merits of the evictees claims. Instead, on February 2, 2007, the judge then presiding over the case ordered a Pre-Trial Conference,23 despite the fact that such a step is not required under the streamlined procedures applicable in cases to enforce fundamental rights.24 Although discouraged by this new and unexpected procedural hurdle, on August 31, 2007, the evictees filed a Hearing Notice for Pre-Trial Conference, attaching a Pre-Trial Information Sheet as required by the Civil Procedure Rules, and requested a date for a hearing, expecting the conference to be a pro forma matter that would be quickly concluded. 19. Before the Pre-Trial Conference could be held, however, the presiding judge was transferred to another division of the Lagos State High Court in the middle of the 2007 Court vacationa vacation that lasted from July to September 2007. A new judge was not assigned to the case until October 22, 2007, when the evictees applied to the Administrative Judge of the High Court for reassignment. The case was then reassigned and came up before a new judge on February 4, 2008. The court did not sit on that date, however, due to a nationwide strike by judicial workers. The matter was adjourned to February 28, 2008. 20. On February 28, 2008, the court was open, but the Lagos State government failed to appear. Rather than meeting this flagrant disregard of the courts orders and procedure with sanctions or penalties, the court made no effort to progress the case, and merely adjourned it again, this time to April 21, 2008. The court further ordered the evictees to serve a formal Hearing Notice on the Lagos State government and the other respondents.

21

See Kokoro-Owo, Case no. M/394/90, Written Address Opposing the 1st and 2nd Defendants Notice of Preliminary Objection Dated the 6th Day of May 2003 (May 26, 2006), attached hereto as Exhibit 15. Kokoro-Owo, Case no. M/394/90, Ruling (re 1st and 2nd Defendants Notice of Preliminary Objection dated 6 May 2003) (February 2, 2007), attached hereto as Exhibit 16. The events described in paragraphs 18 to 26 are verified in the annexed Verifying Affidavit of Victoria Ohaeri, dated October 9, 2009, 2-20. Compare Fundamental Rights (Enforcement Procedure) Rules, 1979, with Order 15(4) of the High Court of Lagos State (Civil Procedure) Rules 2004, available at http://www.nigerialaw.org/LagosStateJudiciaryHighCourtRules2004.htm.

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23

24

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21. By the date of the April 21, 2008 hearing, despite receiving the formal Hearing Notice, the Lagos State government had not yet filed a Pre-Trial Information Sheet as it was required to do under the Civil Procedure Rules. Moreover, the High Court once again could not hear the case, this time due to a power outage, and the case was adjourned to June 9, 2008. 22. On June 9, 2008, although the court was open for hearings, the fourth respondent failed to appear, and instead submitted a letter to the court requesting yet another adjournment. The court again adjourned the case to October 2, 2008. 23. On October 2, 2008 the court was again closed. No reason was advanced for the courts inability to hear cases, and the case was further adjourned to November 6, 2008. On November 6, 2008, the court again did not sit, and once again no reason was advanced for this. The case was further adjourned to January 29, 2009. 24. On January 29, 2009, the court was finally able to hold the first Pre-Trial Conference. At that hearing, almost two years after the Conference had been ordered by the prior judge, the presiding judge discontinued the Pre-Trial Conference, finding that a PreTrial Conference was improper in a suit brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979. 25. On March 16, 2009, the case came up before the judge again. At this hearing, nearly 19 years after the evictees had commenced their action and nearly 14 years after the Court of Appeal had found that the evictees should be granted leave to pursue their claims, the High Court granted the evictees July 11, 1990 ex parte application for leave to apply for enforcement of their fundamental rights. This grant of leave did not indicate that the evictees had been successful on their claims, however. Rather, it merely permitted them to pursue their claims in the first instance. 26. Notwithstanding this apparently favorable development, the judge introduced an unexpected and unwarranted procedural hurdle. Rather than proceed to schedule the case for trial, she once again ordered the evictees to re-serve their Amended Statement on all of the respondents, as if, 19 years after the commencement of the proceedings, the Respondent State had never had notice of the case or the claims. Moreover, even now, the defendants continue to submit new procedural motions which can only lead to further prolongation of a determination of the evictees case. 27. Thus, despite diligent efforts to pursue a local remedy in the Nigerian courts, the evictees have yet to be granted a single hearing on the merits of their claims, and they have never been permitted to introduce the significant evidence of their rights to the Maroko lands, the violence that was done to them during the demolition, and the ongoing harm to their health, education, family lives, work, and development caused by the eviction and by the inadequate housing that some of them have secured for themselves. 28. If the current pace of the court action continues (and the Maroko evictees have every reason to believe that it will), the case could easily continue for many more years with

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no resolution. Consequently, the evictees and SERAC, their counsel, have concluded that a local remedy from the Nigerian courts will not be forthcoming in the foreseeable future. B. Other Avenues of Redress Pursued by the Evictees.

29. Even during the pendancy of the court proceedings, SERAC and the evictees have pursued several other avenues for redress from the Nigerian government. The evictions have been the subject of several reports by independent human rights organizations, bringing attention both within Nigeria and internationally to the events of July 1990 and to Nigerias neglect of the evictees plight.25 In addition, the evictees appealed directly to the state, filing petitions with Nigerias Oputa Commission and with the Lagos State House of Assembly. i. The Oputa Commission

30. In July 1999, a group of Maroko evictees petitioned the Human Rights Violations Investigation Commission of Nigeria (known as the Oputa Commission after its Chairman, the Hon. Justice C. A. Oputa, Justice Emeritus of the Supreme Court of Nigeria). The Oputa Commission was established after the restoration of civilian rule to investigate human rights abuses during over thirty years of military regimes. After reviewing the petition submitted by the Maroko evictees, the Commission was of the view that the Lagos State government should, on behalf of its predecessors, apologize to Maroko residents and publicly condemn the high-handedness of Col. Rasakis government especially given that these innocent citizens went through this harrowing experience so as to satisfy the greed of a few elites whose residences have now sprung up in Maroko.26 In addition, the Oputa Commission recommended that the government properly resettle the Maroko evictees in adequate housing.27 31. The government of Nigeria has never carried out the Oputa Commissions recommendations. ii. Legislative Efforts

32. In September 2004, the Maroko evictees, with the assistance of SERAC, filed a petition with the Lagos State House of Assemblys Committee on Judiciary, Ethics and Privileges, Human Rights and Public Petitions over the governments human rights abuses associated with the forced evictions. In response, the House of Assembly erroneously concluded that the overcrowded, decayed, collapsing and in some cases non-existent housing at the Ilasan, Ikota, and Epe estates was adequate compensation for those few who had sought shelter there, and resolved that the remaining evictees who had been victims of the
25

See note 4, above. Report Submitted by the Human Rights Violations Investigation Commission, May 2002, 72, attached hereto as Exhibit 17. Ibid.

26

27

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unfortunate saga should be re-settled on humanitarian grounds.28 The resolution passed by the House of Assembly stated: Based on the accurate data of Evictees prepared by New Towns Development Authority (NTDA), the State Government will work in conjunction with SERAC, Ford Foundation and other interested NGOs in resettling the outstanding Maroko Evictees as part of the resolution of the House.29 However, the Lagos State has failed to carry out even this limited legislative mandate. ARGUMENT 33. To be considered admissible, communications submitted to the Commission pursuant to Article 55 of the African Charter must meet the requirements of Article 56, which states: Communications relating to human and peoples rights referred to in Article 55 received by the Commission, shall be considered if they: 1. Indicate their authors even if the latter request anonymity, 2. Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4. Are not based exclusively on news discriminated through the mass media, 5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7. Do not deal with cases which have been settled by those States involved in accordance with the principles of the Charter of the United Nations, or
28

See Lagos State House of Assembly, Report on the Petition from the Maroko Evictees, April 25, 2005, 3.10.1, 5.0, 5.1, attached hereto as Exhibit 18. Resolution of the Lagos State House of Assembly, Plenary Session of April 11, 2005, attached hereto as Exhibit 18.

29

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the Charter of the Organization of African Unity or the provisions of the present Charter.30 34. As explained below, the Communication satisfies each of these requirements. The only provision of Article 56 which merits any detailed discussion is Article 56(5) concerning the exhaustion of local remedies. Accordingly this requirement is discussed first, followed by brief observations on the remaining admissibility requirements. As all seven of Article 56s requirements are satisfied, SERAC respectfully requests that the Commission declare the Communication admissible. I. The Communication Satisfies Article 56(5)s Exhaustion Requirement

35. Article 56(5) of the African Charter requires applicants to the Commission to exhaust[] local remedies, if any, unless it is obvious that this procedure is unduly prolonged, before attempting to seek redress from the Commission. Article 56(5)s exhaustion requirement is not rigid, however. Article 19 v. Eritrea, Comm. 275/2003, 22nd Activity Report (2007), 48. Like the other admissibility criteria, it must be applied bearing in mind the character of each communication. Amnesty International and Others v. Sudan, Comms. 48/90, 50/91, 52/91, 89/93, 13th Activity Report (1999), 28. That is, the Commission interprets the provisions of Article 56(5) in the light of its duty to protect human and peoples rights as stipulated in the Charter. Malawi African Assn and Others v. Mauritania, Comms. 54/91, 61/91, 98/93, 164-196/97, 210/98, 13th Activity Report (2000), 85.31 Accordingly, the Commission has established a number of exceptions to the requirement that local remedies be exhausted. See Article 19, Comm. 275/2003, 48. 36. As discussed in further detail below, (A) the Maroko evictees are not required to exhaust local remedies because those remedies are unavailable and ineffective, and (B) the case falls squarely within the express exception to Article 56(5)s exhaustion requirement for cases in which proceedings to obtain local remedies are unduly prolonged. Moreover, (C) this case implicates none of the issues underlying the local remedies requirement. A. The Maroko Evictees Are Not Required to Meet the Exhaustion Requirement Because Local Remedies Are Not Available or Effective.

37. Under the Commissions jurisprudence, an applicant is not required to exhaust local remedies if such remedies are unavailable, ineffective, or insufficient. Article 19, Comm. 275/2003, 51; Ilesanmi v. Nigeria, Comm. No. 268/2003, 18 Activity Report (2005), 45; Jawara v. The Gambia, Comm. 149/96, 13th Activity Report (2000), 31.
30

African Charter, art. 56. See also Akdivar and Others v. Turkey, Eur. Ct. H.R., Case 99/1995/605/693 (1996), 69 (the application of the [exhaustion] rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights . . .[and the Court] has recognised that [the rule] must be applied with some degree of flexibility and without excessive formalism.).

31

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[A]ll three criteria [i.e., availability, effectiveness, and sufficiency,] must be present for the local remedy envisaged in Article 56(5) to be considered worthy of pursuing. Centre on Housing Rights and Evictions v. Sudan, Comm. 296/05 (2006), 61. A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint. Jawara, Comm. 149/96, 32. 38. These principles are consistent with the law of other international human rights tribunals which this Commission has found persuasive.32 For example, the European Court of Human Rights has held that the exhaustion requirement under the European Convention is based on the assumption . . . that there is an effective remedy available in respect of the alleged breach in the domestic system.33 Likewise, the United Nations Human Rights Committee has consistently taken the view that a remedy does not have to be exhausted if it has no chance of being successful.34 The American Convention on Human Rights provides an express exception to the exhaustion requirement where the applicant has been denied access to the remedies under domestic law or has been prevented from exhausting them.35 In interpreting this provision, the Inter-American Court of Human Rights has stated that the exhaustion requirement does not apply when domestic remedies are not available either as a matter of law or as a matter of fact.36 In the case of Velsquez Rodrguez, the Court elaborated, stating that exhaustion is not required when it is shown that remedies are denied for trivial reasons or without an examination of the merits, or if there is proof of the existence of a practice or policy ordered or tolerated by the government, the effect of which is to impede certain persons from invoking internal remedies that would normally be

32

See African Charter, arts. 60-61 (providing that the Commission shall draw inspiration from international law on human and peoples rights in ascertaining the principles to be applied in carrying out its mandate). Akdivar, Eur. Ct. H.R., Case 99/1995/605/693, 65. Semey v. Spain, Human Rights Committee, Comm. 986/2001, U.N. Doc. CCPR/C/78/D/986/2001 (2003), 8.2. American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 (hereinafter American Convention), art. 46(2). Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) of the American Convention on Human Rights), Advisory Opinion No. OC-11/90, Inter. Am. Ct. H.R. (Ser. A) No. 11 (1990), 17.

33

34

35

36

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available to others. In such cases, resort to those remedies becomes a senseless formality.37 39. Where the admissibility of a communication is challenged on exhaustion grounds, it is the states burden to establish that local remedies are available, effective and sufficient to cure the violation alleged. Article 19, Comm. 275/2003, 51; Rencontre Africaine pour la Dfense des Droits de lHomme v. Zambia, Comm. 71/92, 10th Activity Report (1996), 13. In order to meet this burden, the state cannot simply point to the existence of local remedies in abstracto, but must relate[] them to the circumstances of the case, and show[] how they might provide effective redress. Article 19, Comm. 275/2003, 73. For the reasons outlined below, the Respondent State cannot meet this burden.38 i. Local Remedies Are Unavailable Because the Courts Are Unwilling to Act

40. No local remedy is available because the courts and the Lagos State government have continually impeded the Maroko evictees ability to pursue a remedy. This Commission has held that a remedy is considered available only if the applicant can make use of it in the circumstance[s] of his case. Jawara, Comm. 149/96, 33. In other words [t]he existence of a remedy must be sufficiently certain, not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness. Id. 35. The exhaustion requirement does not . . . mean that the complainant should necessarily exhaust remedies which, in practical terms, are not available. Diakit v. Gabon, Comm. No. 73/92, 13th Activity Report (2000), 16. 41. Although some of the evictees have sought to vindicate their claims in the Nigerian courts, the court and the government have continually engaged in dilatory tactics or raised unmeritorious or extraordinary procedural obstacles that have stalled the litigation for years at a time. As detailed above (paragraphs 9-28), on July 11, 1990, some of the residents of Maroko filed a claim seeking to prevent the destruction of Maroko, and, after the demolition was allowed to occur, continued pressing their case to secure compensation for the violations of their rights. To date, there has been no examination of the merits of the claims brought by the Maroko evictees in Nigerian courts. Instead, after more than 19 years, the claims are essentially once again at the very earliest stages of litigation with every indication that endless delays will continue. Requiring the evictees to continue pursuing a remedy in the domestic forum would be a senseless formality.

37

Velsquez Rodrguez Case, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), 68. See also Zegveld, Comm. 250/2002, 36 (citing to Velsquez). Jurisprudence from other international human rights bodies similarly place the burden on the respondent state to establish that local remedies are available and effective. See, e.g., Akdivar, 99/1995/605/693 (ECHR), 68.

38

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ii.

Local Remedies Are Ineffective Because There Is Little Prospect of Success

42. The local remedies the Maroko evictees have attempted to pursue are ineffective because they offer no reasonable prospect of success. This is exemplified by the Maroko evictees desperate and futile attempt to seek preliminary injunctive relief in the face of the impending eviction in July, 1990. Not only was the hearing on the legality of the governments proposed eviction of the evictees scheduled only for after the evictions had begun, but even after a supplementary emergency filing with the High Court, the court took no action. In addition, Nigerian government officials openly boasted about their ability to ignore the outcome of any court proceedings. For example, in the days prior to the demolition of Maroko, Colonel Rasaki stated, [i]t is left for me as chief executive of the state to decide whether to obey the court injunction if one were issued39a threat which may well have impacted the manner in which the Maroko evictees petition for a preliminary injunction was handled. 43. As with their request for injunctive relief, the local court proceedings pursued after the demolition offer no prospect of success for the Maroko evictees. Both the court and the Lagos State government as defendant have shown a willingness to allow the proceedings to continue indefinitely. The government and other respondents have routinely flouted orders to file arguments, such as for the Pre-Trial Conference (see paragraphs 18 to 24, above) and the court has not imposed the sanctions for such failures that are required by the applicable rules. Even when the court has ruled in the evictees favor on procedural issues, it has brought them no closer to a resolution of the case. Indeed, in some instances, when the evictees believed they might finally receive a hearing on their claims, the court imposed new procedural requirements that have placed them in the same position they had occupied years earlier. These endless delays and failures of the court to act demonstrate that the evictees have no realistic hope of ever obtaining a remedy. Whatever remedy this process may theoretically bring, it is insufficiently certain in practice to provide the requisite accessibility and effectiveness. Jawara, Comm. 149/96, 35. 44. Likewise, although the Oputa Commission found in favor of the Maroko evictees, its recommendations were purely advisory, have not altered the status of the Maroko evictees and cannot be found to constitute an effective remedy. See, e.g., Centre on Housing Rights and Evictions v. Sudan, Comm. 296/05 (2006), at 10 (noting that the exhaustion of domestic remedies . . . requires the exhaustion of legal remedies and not administrative remedies. ); Ilesanmi v. Nigeria, Comm. No. 268/2003, 18th Activity Report (2005), 42 (The remedies required under article 56(5) are legal remedies and not administrative or executive remedies.); see also C. v. Australia, Human Rights Comm., Comm. 900/1999, 6.6, U.N. Doc CCPR/C/OP/8 (2002) (where the Human Rights Committee has held that administrative remedies whose decisions were only recommendatory in nature did not constitute effective remedies). Moreover, the
39

No going back on relocation of Maroko residents, says Rasaki, The Guardian, July 10, 1990, attached hereto as Exhibit 19.

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Respondent State has continually ignored the Oputa Commissions findings or failed to follow through and carry out its recommendations. iii. Local Remedies Are Unavailable and Ineffective Because of the Scale of the Human Rights Violations

45. The Commission has also recognized the inapplicability of the exhaustion requirement in cases, such as this, involving mass violations of human rights. The Commission has held that in assessing the applicability of the exhaustion requirement there is a distinction between cases in which the complaint deals with violations against victims identified or named and those cases of serious and massive violations in which it may be impossible for the complainants to identify all the victims. Amnesty International, Comm. No. 48/90, 50/91, 52/91, 89/93, 30.40 In cases of serious and massive [violations], the Commission reads Article 56.5 in the light of its duty to protect human and peoples rights as provided for by the Charter. Consequently, the Commission does not hold the requirement of exhaustion of local remedies to apply literally, especially in cases where it is impractical or undesirable for the complainants or victims to seize the domestic courts. Id. 38-39; see also Malawi African Assn, Comm. Nos. 54/91, 61/91, 98/93, 164/97 to 196/97 and 210/98, 85; Centre on Housing Rights and Evictions, Comm. 296/05, 65 (holding the scale of the alleged abuses, the number of persons involved and the nature of the alleged abuses ipso facto makes local remedies unavailable, ineffective and insufficient. . . [Indeed given that] tens of thousands of people [in Darfur] have been forced from their homes. . . [i]t is impracticable and undesirable to expect these victims to exhaust . . .[local] remedies.). 46. Although, the Maroko residents have engaged in extensive efforts to exhaust local remedies, the present case falls squarely within the exception discussed in Malawi African Association, Amnesty International, and Centre on Housing Rights and Evictions. Approximately 300,000 former residents of the Maroko region were forcibly and violently displaced from their homes and their community destroyed. Many of these evictees were beaten, and some were raped and even killed. Further, in addition to the loss of life and property, the Maroko evictees faced a significant impairment in their health, education and welfare, all in clear violation of the terms of the African Charter. The Nigerian governments purported attempt to re-house a small number of Maroko evictees in sub-standard and inhospitable structures at Ilasan, Ikota, and Epe, is clearly insufficient, particularly given that these re-settled evictees continue to face the threat of further evictions. See Communication, 13-29. Here, as in Malawi African Association, Amnesty International, and Centre on Housing Rights and Evictions, the sheer number of victims involved, the seriousness of the human rights violations attributed to the government and the reluctance on the part of the government to meaningfully address the Maroko evictees claims render local remedies unavailable and ineffective in practical terms.

40

This case deals with the arbitrary arrests and detentions that took place following the coup of 30 July 1989 in Sudan. It is alleged therein that hundreds of prisoners were detained without trial or charge. Amnesty International, Comm. No. 48/90, 50/91, 52/91, 89/93, 1.

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47. In sum, because Nigeria has failed to offer available or effective local remedies, the Maroko evictees are not required to aimlessly pursue these remedies with no hope of securing relief or to ensure that the domestic remedies have been exhausted. B. Even if Local Remedies Were Available and Effective, the Maroko Evictees Have Satisfied Article 56(5) Because the Local Remedies Have Been Unduly Prolonged.

48. The African Charter provides an express exception to the exhaustion requirement where, as here, the applicant has already submitted its claim before domestic courts but has experienced a lengthy delay in obtaining any redress. Pursuant to Article 56(5) of the African Charter local remedies need not be exhausted if it is obvious that this procedure [has been] unduly prolonged. This exception clearly applies to the present Communication. 49. The Commissions communication procedure guidelines explain that the unduly prolonged exception is applicable when domestic procedures are delayed, for example, say by numerous and unnecessary adjournments.41 The Commission has found that a claimants local remedies have been unduly prolonged when they have been pending for as little as 18 months. For example, in Zegveld and Ephrem v. Eritrea, the Commission found undue delay where 11 detainees were held for more than 18 months without formal charges and without access to their lawyers or families, render[ing] them unable to seek legal or administrative redress. Comm. No. 250/2002, 17th Activity Report (2003), 2728. In Odjouoriby v. Benin, the Commission upheld its previous decision declaring a communication admissible where a case had been pending before the court of appeals for nine years without judgment. Comm. 199/97, 17th Activity Report (2004), 17-23. The Commission noted that it is obvious that the proceedings will remain in impasse as long as the Appeal Court has not made any ruling on the appeal pending before it. Id. 18. In Modise v. Botswana, the Commission declared the communication admissible in the absence of exhaustion of local remedies because the applicant had commenced his action in local courts over 16 years before the communication was brought before the Commission. Comm. 97/93, 10th Activity Report (1997). The Commission made note of the fact that the legal process had been repeatedly interrupted and willfully obstructed by the government through summary deportations of the applicant. Id. 20; see also Modise v. Botswana, Comm. 97/93, 14th Activity Report (2000), 69 (subsequent Commission decision affirming original admissibility finding). 50. The exemption of applicants from satisfaction of the exhaustion requirement when local remedies have been unduly prolonged is also a firmly established principle in the jurisprudence of other human rights bodies. Article 46(2)(c) of the American Convention on Human Rights, like Article 56(5) of the African Charter, provides an explicit exception to the
41

Afr. Commn on Human & Peoples Rights, Communication Procedure: Information Sheet No. 3 (hereinafter Information Sheet No. 3), at 6, available at http://www.achpr.org/English/ information_sheets/ACHPR%20inf.%20sheet%20no.3.doc.

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admissibility requirement of exhaustion when there has been unwarranted delay in rendering a final judgment,42 and the Inter-American Commission has interpreted this clause to include cases where domestic proceedings have been delayed for as little as five years. See Sassen van Elsloo Otero and Torres Herbozo v. Ecuador, Petition 183/02, Report No. 70/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 284 (2002), 24-30 (finding unwarranted delay where case had been pending for five years before a military court without a final judgment).43 51. Similarly, according to Article 2 of the Optional Protocol to the International Covenant on Civil and Political Rights, the requirement that individuals submitting communications to the Human Rights Committee (the body that monitors state compliance with the ICCPR)44 exhaust[] all available domestic remedies is inapplicable where the application of the remedies is unreasonably prolonged.45 Indeed, the Human Rights Committee has adopted a rule that for the purposes of article 5, paragraph 2(b) of the Optional Protocol, domestic remedies must be effective and available, and must not be unduly prolonged. Arredondo v. Peru, Human Rights Comm., Comm. 688/1996, U.N. Doc. CCPR/C/69/D/688/1996 (2000), 6.2.46 The Committee on the Elimination of
42

American Convention, art 46(2)(c). See also Portugal v. Panama, Case 357/01, Report No. 72/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 376 (2002), 22-24 (12 year criminal investigation into disappearance prima facie constitutes unwarranted delay under Article 46(2)(c)); Tames v. Brazil, Case 11.516, Report N 19/98, InterAm. C. H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 112 (1997), 22 (initial proceedings took seven years, and a final judgment was nowhere in sight); Oliveira v. Brazil, Case 11.694, Report No. 36/01, Inter-Am. C.H.R., OEA/Ser.L/V/II.111 Doc. 20 rev. at 178 (2000), 21-25 (finding that a delay of six years in the preliminary investigation implies that criminal proceedings cannot be brought, thereby making it impossible for the perpetrators to be punished); Restrepo v. Colombia, Case 11.726, Report No. 84/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 185 (2000), 2125 (preliminary investigation lasted eight years); da Silva Cassiano et al. v. Brazil, Case 12.198, Report No. 51/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 164 (2004), 20 (undue delay where proceedings lasted for 10 years). The Human Rights Committee is empowered to hear individual petitions for violations of the ICCPR, provided that the state exercising jurisdiction over the petitioning individual has acceded to the Optional Protocol to the International Covenant of Civil and Political Rights. Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302 (hereinafter ICCPR Optional Protocol), art. 1. ICCPR Optional Protocol, arts. 2, 5(2)(b). There is ample HRC jurisprudence on undue delay. In a petition alleging arbitrary arrest and detention, the HRC, pursuant to Article 5(2)(b), held that the exhaustion requirement did not apply since final judgment in the domestic proceedings had not been rendered in over four and a half years since the arrest of the petitioner. Weinberger v. Uruguay, Human Rights Comm., Comm. 28/1978, U.N. Doc. CCPR/C/OP/1 at 57 (1984), 11; see also Sarma v. Sri Lanka, Human Rights Comm., Comm. 950/2000, U.N. Doc. CCPR/C/78/D/950/2000 (2003), 6.3

43

44

45

46

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Discrimination against Women (CEDAW Committee), 47 the Committee on the Elimination of Racial Discrimination (CERD Committee) 48 and the Committee against Torture (CAT) 49 all also contain provisions exempting claimants from the exhaustion of
(stating that an investigatory commissions seven-year delay in reaching a final conclusion on the disappearance of the alleged victim was unreasonably prolonged and that the petition was admissible to the HRC); Arredondo v. Peru, Human Rights Comm., Comm. 688/1996, above, 6.2 (stating that the petition was admissible, even though domestic remedies had not been fully exhausted, because eight years had passed without resolution since the alleged victims trial commenced); Des Fours Walderode & Kammerlander v. Czech Republic, Human Rights Comm., Comm. 747/1997, U.N. Doc. CCPR/C/73/D/747/1997 (2001), 6.4 (an additional five years for the finalization of a constitutional appeal would result in unreasonably prolonged domestic remedies, particularly given the age of the complainant).
47

Article 4(1) of the CEDAW Optional Protocol provides: The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief. Optional Protocol to the Convention on the Elimination of Discrimination against Women, G.A. res. 54/4, annex, 54 U.N. GAOR Supp. (No. 49) at 5, U.N. Doc. A/54/49 (Vol. I) (2000), 2131 U.N.T.S. 83. Indeed, the CEDAW Committee has adopted the view that a delay of over three years from the dates of the incidents in question would amount to an unreasonably prolonged delay within the meaning of article 4, paragraph 1, of the Optional Protocol . . . . See A. T. v. Hungary, Comm. on the Elimination of Discrimination against Women, Comm. No. 2/2003, U.N. Doc. CEDAW/C/32/D/2/2003 (2005), 8.4. Pursuant to Article 14(7), the CERD Committee shall not consider any communication from a petitioner unless it has ascertained that the petitioner has exhausted all available domestic remedies. However, this shall not be the rule where the application of the remedies is unreasonably prolonged. International Convention on the Elimination of All Forms of Racial Discrimination, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, art. 14(7)(a) (emphasis added); see Durmic v. Serbia and Montenegro, Comm. on the Elimination of Racial Discrimination, Comm. 29/2003, U.N. Doc. CERD/C/68/D/29/2003 (2006), 6.5 (finding that four and a half years of seeking domestic adjudication of the alleged victims claim is unreasonably prolonged). Article 22(4) of the CAT requires individuals to exhaust all available domestic remedies. However, the rule does not apply where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], 1465 U.N.T.S. 85, art. 22(4); see Dimitrov v. Serbia and Montenegro, Comm. against Torture, Comm. 171/2000, U.N. Doc. CAT/C/34/D/171/2000 (2005), 7.1 (Committee deemed admissible a complaint that alleged that the local authorities only began initial investigatory actions some three and a half years after the alleged victim lodged his complaint); see also Dimitrijevic v. Serbia and Montenegro, Comm. against Torture, Comm. 207/2002, U.N. Doc. CAT/C/33/D/207/2002 (2004), 5.2 (stating that two and a half years of no response to the alleged victims complaint rendered the domestic remedy unreasonably prolonged.).

48

49

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local remedies requirement where access to the local remedy has been unreasonably prolonged. 52. Under any reasonable interpretation of Article 56(5) and the communication procedure guidelines, as well as the Commissions prior rulings on exhaustion, it is clear that a 19 year delay in court proceedings, replete with unnecessary adjournments and other dilatory tactics is an instance where the local remedy has been unduly prolonged, particularly given the seriousness of the violations alleged and the ongoing harm suffered by the evictees. The evictees filed their initial claim before the Nigerian courts on July 11, 1990, and to date, 19 years later, there has not been a single hearing on the merits and the case is still mired in procedural issues. 53. Consistent with the object and purpose of Article 56(5) and the Commissions jurisprudence, as well as that of other human rights tribunals interpreting the exhaustion requirement, the domestic proceedings in the Maroko eviction case have been unduly prolonged. The Communication should therefore be found to fall squarely within Article 56(5)s explicit exemption from the requirement to exhaust local remedies. C. The Communication Satisfies the Principles that Undergird the Exhaustion Requirement.

54. The requirement that local remedies must be exhausted reflects the principle of subsidiarity in international law pursuant to which states must be permitted to solve their internal problems in accordance with their own constitutional procedures before accepted international mechanisms can be invoked. Article 19 v The State of Eritrea, Comm. 275/2003, 22nd Activity Report (2007), 45. The Commission has identified three primary purposes for giving the respondent state the first opportunity to respond to claims of human rights violations, recognizing that the subsidiarity principle is limited by the requirement that a state provide domestic remedies that are available, effective and sufficient. See Jawara, Comm. 149/96, 31; Tsikata v Ghana, Comm. No. 322/2006, 21st Activity Report (2006), 53; Malawi African Assn, Comms. 54/91, 61/91, 98/93, 164-96/97 and 210/98, 80. 55. First, the Commission has held that the exhaustion of local remedies requirement [serves] to give the domestic courts an opportunity to decide upon cases before they are brought to an international forum, thus avoiding contradictory judgements of law at the national and international levels. Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Comm. 155/96, 15th Activity Report (2001) (hereinafter Ogoni Case), 37. Of course, if a state is unable or willfully chooses not to resolve a case at the local level, the potential of conflict does not arise. Ibid. 56. Second, the exhaustion requirement enables the African Commission on Human and Peoples Rights to avoid playing the role of a court of first instance . . . rather than a tribunal of last resort. Malawi African Assn, Comms. 54/91, 61/91, 98/93, 164-96/97 and 210/98, 80; see also Jawara, Comm. 149/96, 31. If the state fails to act in the first instance, however, or places impediments in the way of the applicants ability to seek relief

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in the first instance in the domestic courts, the applicant may resort to the Commission for relief. See Article 19, Comm. 275/2003, 72-76; Amnesty International, Comms. 48/90, 50/91, 52/91, 89/93, 35. 57. Third, the Commission has noted that one of the justifications for [requiring the exhaustion of local remedies] is that the accused state should be informed of the human rights violations it is being accused of, to provide it with an opportunity to redress them and save its reputation, which would be inevitably tarnished if it were brought before an international jurisdiction. Malawi African Assn, Comms. 54/91, 61/91, 98/93, 164-96/97 and 210/98, 80; see also Ogoni Case, Comm. 155/96, 38 ([A] government should have notice of a human rights violation in order to have the opportunity to remedy such violation, before being called to account by an international tribunal. (citing World Organisation Against Torture and Others v. Zaire, Comms. 25/89, 47/90, 56/91 & 100/93, 9th Activity Report (1995), 53)). So long as the State has been made sufficiently aware to the extent that it can be presumed to know the situation prevailing within its own territory as well as the content of its international obligations, this purpose of the exhaustion requirement has been fulfilled. Amnesty International, Comms. 48/90, 50/91, 52/91, 89/93, 33. Accordingly, if the state has had ample notice and time within which to remedy the situation, even if not within the context of the domestic remedies of the state and nevertheless does not take any action, this indicates that domestic remedies are either not available or if they are, not effective or sufficient to redress the violations alleged. Article 19, Comm. 275/2003, 77. 58. The present Communication satisfies all three elements of the subsidiarity principle. Requiring the Maroko evictees to continue pursuing a non-existent local remedy will not satisfy this principle that is at the core of the exhaustion requirement. The evictees are not asking the Commission to serve as a tribunal of first instance, but are resorting to its process after almost two decades of unsuccessfully pursuing remedies in the domestic courts and other national and local institutions in Nigeria. In addition, given the Nigerian courts inability or unwillingness to address, much less resolve, the evictees claims, there is no real potential for conflicting decisions.50 See, e.g., Ogoni Case, Comm. 155/96, 37. 59. Moreover, over 19 years of litigation, including an appeal to Nigerias highest court, has surely been sufficient to make the Respondent State aware to the extent that it can be presumed to know the situation prevailing within its own territory as well as the content of its international obligations. Amnesty International, Comms. 48/90, 50/91, 52/91, 89/93, 33. In addition, in the immediate aftermath as well as in the years since the demolition of Maroko, the plight of the Maroko evictees has received significant attention, both nationally and internationally. The demolition and its aftermath have been the subject of at least three reports issued by human rights NGOs and has received regular attention from Nigerian and international media outlets. Moreover, Nigerias Oputa Commission has examined the eviction and its aftermath and has made recommendations to the Lagos State government, as has Lagos States own legislative assembly.
50

On the other hand, the action the evictees are asking the Commission to take is wholly in harmony with the recommendations of the Oputa Commission.

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60. Despite having clear notice of the plight of the Maroko evictees, the Nigerian government has failed to implement those recommendations or to take any action to improve the deplorable living conditions into which its actions forced the Maroko evictees. Indeed, acting through various political subdivisions and agencies, Nigeria has continued to take actions against the evictees in violation of its obligations under the African Charter. This manifest indifference to its international obligations demonstrates that any local remedies the evictees might avail themselves of are ineffective and unavailable. II. The Communication Satisfies All of Article 56s Remaining Admissibility Requirements. A. The Communication Indicates Its Authors.

61. Article 56(1) of the African Charter requires that communications indicate their authors. This requirement ensures that the Secretariat has the appropriate contact details of the author for communication purposes. Dioumessi and Others v. Guinea, Comm. 70/92, 9th Activity Report (1995), 11 (noting that the identity of authors is important to ensure that they be sent notifications.). 62. The present Communication clearly meets these requirements. SERAC is identified as the Communications author (also the Applicant) on the cover pages of the Communication, and SERACs full physical and mailing addresses are provided. See Communication, at 2. The address of Debevoise & Plimpton LLP, counsel to SERAC, is also specified in the Communication. See id. As indicated in the Communication, SERAC is an international human rights non-governmental organization headquartered in Lagos, Nigeria. SERAC works to promote and protect economic, social and cultural rights in Nigeria, with a particular focus on the right to adequate housing and the prevention or remediation of forced evictions. Id. B. The Communication is Compatible with the Charter of the African Union and with the African Charter.

63. To be compatible with the African Charter and the Charter of the African Union (AU), a communication must satisfy compatibility ratione materiae and compatibility ratione personae. Chinhamo v. Zimbabwe, Comm. 307/2005, 23rd Activity Report (2007), 38; Article 56(2) of the African Charter. The present Communication satisfies both prongs of the compatibility requirement. i. Compatibility Ratione Materiae

64. To be compatible ratione materiae, a communication must allege a substantive violation of a provision of the African Charter or other instrument the Commission is authorized to enforce. See, e.g., Chinhamo, Comm. 307/2005, 39-40. The allegations should provide prima facie evidence that a provision of the African Charter has been violated with sufficient indication of the factual basis on which the alleged violation is

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based. See Mouvement des Rfugis Mauritaniens au Sngal v. Sngal, Comm. 162/97, 11th Activity Report (1997), 11-37, 21-22; Jawara, Comms. 147/95, 149/96, 41. 65. The present Communication alleges violations of specific enumerated provisions of the African Charter by state-party Nigeria acting through its political subdivisions. In particular, the Communication alleges violations of the Right to Life, the Right to Human Dignity and Security of the Person, the Right to Housing, the Right to Property, the Right to Have Ones Cause Heard, the Right to Health, the Right to Family, the Right to Education, the Right to Work, and the Right to Development and a Healthy Environment (viz. violations of Articles 2,4, 5, 6, 7, 14, 15, 16, 17, 18, 22 and 24 of the African Charter). See Communication, 44-79. The Communication is supported by detailed factual allegations that more than establish a prima facie case of the claimed violations. See Communication, 11-37 and 44-79. ii. Compatibility Ratione Personae

66. To be compatible ratione personae, a communication must be directed at a state that is party to the African Charter and must make a prima facie showing that that state is responsible for the violations alleged. Chinhamo, Comm. 307/2005, 39-40. 67. The Communication is directed at the Federal Government of Nigeria (and its subdivisions) and Nigeria is a member state of the AU and a state-party to the African Charter, having ratified the African Charter on July 22, 1983. See Communication, at 1. Although many of the original violations occurred during the tenure of a prior administration, the present administration can still be validly held responsible because states are responsible for a previous governments violations. See, e.g., Portugal v. Panama, Case 357/01, Report No. 72/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 376 (2002), 24 (holding that based on the principle of the continuity of the State, international liability exists irrespective of changes in government.) It is further well-established that a federal state is responsible in international law for the acts of its federated subdivisions. See, e.g., International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, adopted by G. A. Res 56/83 (2001) (annex), corrected in U.N. Doc. A/56/49 (Vol. 1)/Corr. 4, art. 4. Nigeria is thus responsible internationally for the actions of the Lagos State government set out in the Communication. 68. Consequently, in accordance with Article 56(2), the Communication is compatible with the Charter of the AU and the African Charter. C. The Communication Is Not Written in Disparaging or Insulting Language.

69. For a communication to be admissible, it must not use disparaging or insulting language against the respondent state and its institutions or against the AU. The Commission has rarely issued decisions denying admissibility for failure to meet this Article 56(3) requirement. See, e.g., Ligue Camerounaise des Droits de lHomme v. Cameroon, Comm. 65/92, 10th Activity Report (1997), 13 (denying admissibility where the communication included insulting statements such as 30 years of the criminal neo-colonial regime

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incarnated by the duo Ahidjo/Biya, regime of torturers and government barbarism). Notably, merely questioning the effectiveness of a states judicial or administrative machinery or the impartiality of its courts does not constitute insulting or disparaging language for purposes of admissibility. Bakweri Land Claims Committee v. Cameroon, Comm. 260/02 (2004), 48. 70. The present Communication contains no insulting or disparaging language but, in conformity with Article 56(3)s requirements, is written in professional and respectful language which lays out the factual basis and legal analyses for the conclusion that the Respondent State has violated the human and peoples rights of the Maroko evictees. D. The Communication Is Not Based Exclusively on News Disseminated Through the Mass Media.

71. In order to be admissible under Article 56 of the African Charter, a communication must not be based exclusively on information disseminated through the mass media. See Article 56(4) of the African Charter. The factual information in the present Communication derives primarily from interviews SERAC has conducted with the Maroko evictees in which they describe the destruction of their homes, schools and businesses in Maroko, the aftermath of this demolition, and the conditions under which they have lived for the past 19 years. The Communication is also based on extensive documentary and photographic evidence collected by SERAC from the evictees and through its own investigation. 72. The Communication makes passing references to media reports to confirm facts and fill in some background details. For example, in preparing the Communication, SERAC consulted Newswatchs Good-bye Maroko article for additional confirmation that approximately 300,000 people were evicted from Maroko.51 The Commission has found that Article 56(4) permits reference to media reports in similar circumstances. See, e.g., Jawara, Comms. 147/95, 149/96, 24. In the Jawara case, the Commission held that [w]hile it would be dangerous to rely exclusively on news disseminated from the mass media, it would be equally damaging if the Commission were to reject a communication because some aspects of it are based on news disseminated through the mass media. This is borne out of the fact that the Charter makes use of the word exclusively Id. This Communication in no way relies exclusively on media reports but is rather based on reliable witness testimony from numerous individuals and on documentary evidence; the media reports merely support this evidence and provide background contextual information. 73. Charter. Accordingly, the Communication satisfies Article 56(4) of the African

51

See note 8, above.

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E.

The Communication Is Timely.

74. Under Article 56(6) of the African Charter, a communication must be submitted within a reasonable period from the time local remedies are exhausted. In common with other human rights instruments, such as the United Nations human rights treaties,52 the African Charter does not impose a specific time limit in relation to the bringing of proceedings under it. See Tsikata v. Ghana, Comm. 322/2006, 21st Activity Report (2006), 38 (noting that unlike the Inter-American Commission, the Commission does not specify a time-period within which Communications may be submitted.). In applying this factor, the Commission has held that in the case of unavailability or prolongation of local remedies, [the Commission estimates the timeliness of a Communication] . . . from the date of the applicants notice thereof. See Tsikata, Comm. 322/2006, 37. 75. Although the former residents of Maroko have diligently pursued claims before domestic courts in Nigeria for a number of years, as well as before other legislative and administrative bodies, it is only in the recent past that it became evident that the courts were simply unable and/or unwilling to provide redress. As recently as June 2008, SERAC and the evictees believed that the case would soon be scheduled for a trial on the merits. However, by December 2008, after the pre-trial conference was adjourned for over a year, and after the newly appointed judge required the evictees effectively to re-start the proceedings by re-serving the defendants, the Maroko evictees realized that the court was unwilling and/or unable to provide any relief and promptly sought relief from this Commission on December 3, 2008. Accordingly, the Communication has been filed within a reasonable time from the date SERAC and the evictees realized that a domestic remedy was truly unavailable and unlikely to provide effective redress. F. The Communication Does Not Raise Claims that Have Been Settled by the Government of Nigeria or Resolved in any Other International Forum.

76. As is common in international human rights instruments, Article 56(7) of the African Charter adopts a form of the ne bis in idem principle. Under Article 56(7), a claim may not be brought before the Commission if such claim has been settled by certain other international bodies. See, e.g., Mpaka-Nsusu v. Zaire, Comm. 15/88, 7th Activity Report (1994) (communication inadmissible because claims had already been referred for consideration to the Human Rights Committee); see also Centre on Housing Rights and Evictions, Comm. 296/05, 69 and 70 (finding the communication admissible so long as it has not been settled by the African Commission or any bodies created under international human rights treaties and noting that to be settled also requires that the treaty or Charter body dealing with the matter has taken a decision which addresses the concerns, including the relief being sought by the complainant.).

52

See, e.g,. ICCPR Optional Protocol, art 5.

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77. The claims asserted in this Communication have not been settled in accordance with the principles of the Charter of the United Nations, the Charter of the African Union or the African Charter. Further, the claims in the Communication have not been and are not being considered or examined by any such tribunal or body created by international human rights treaties. Accordingly, there can be no argument that this Communication is submitted in violation of Article 56(7) of the African Charter. CONCLUSION 78. For the foregoing reasons, the present Communication satisfies the admissibility requirements of Article 56 of the African Charter.

Respectfully submitted on this 9th day of October, 2009,

____________________________ Felix C. Morka Social and Economic Rights Action Center P.O. Box 13616 Ikeja Lagos, Nigeria 1A Ade Ajayi Street Off Hakeem Ajala Street Zone A4 Ogudu GRA Ogudu Lagos Nigeria Tel. +234 1 764 6299 Fax. +234 1 496 8606 E-mail: serac@linkserve.com.ng Web: www.serac.org

____________________________ Lord Goldsmith QC Debevoise & Plimpton LLP Tower 42, Old Broad Street London EC2N 1 HQ United Kingdom Tel. +44 20 7786 9000 Fax. +44 20 7588 4180 E-mail: phgoldsm@debevoise.com Counsel for Social and Economic Rights Action Center

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