THE Economic Community of West African Court (ECOWAS) Court has written to the Nigerian government, asking it to enforce its judgment abolishing the Kano State blasphemy law.

In a writ of execution signed by Chief Registrar of the Community Court of Justice, ECOWAS, Dr Yaouza Ouro-Sama, the court wrote: “By this Writ, the Court is requesting the enforcement of its decision in respect of the matter against the Respondent, the Federal Republic of Nigeria.”

The court had declared the provisions of both Section 210 of the Penal Code of Kano State and Section 382 (b) of Kano State Sharia Penal Code Law of 2000 as incompatible, with the obligation of the Nigerian government to guarantee the freedom of expression pursuant to Article 9 (2) of the African Charter on Human and Peoples’ Rights.

The court, therefore, ordered the respondent, that is the Nigerian government, to repeal or amend the provisions of both Section 210 of the Penal Code of Kano State and Section 382(b) of Kano State Sharia Penal Code Law of 2000, as well as other similar provisions in its laws, to bring them in complaince with its obligations in Article 9 (2) of the African Charter of Human and Peoples’ Rights, and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

A digital right lawyer and human rights activist, Mr Solomon Okedara, initiated an action in October 2023 at the ECOWAS Court challenging perennial violations of the right to freedom of expression, the right to freedom of religion, and the right to life on the ground of blasphemy within the territory of the Federal Republic of Nigeria.

Solomon Okedara

The court matter was predicated on the fact that Nigeria is a signatory to the African Charter on Human and People’s Rights (ACHPR). The nation did not only ratify it but also domesticated it as a local law as the African Charter on Human and People’s Rights (Ratification and Enforcement) Act (Cap A9) LFN 2004. 

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This instrument places an obligation on the Nigerian government to protect the rights guaranteed in it in all jurisdictions within its territory, including the rights under reference. 

Argument vs counter-argument

The action challenged the consistent use and/or failure to prevent the use of criminal provisions bordering on the offence of blasphemy to arrest, arbitrarily detain, unlawfully prosecute, imprison and impose death sentence on citizens by the Nigerian government, and failure of the Nigerian government to prevent extra-judicial killing of citizens on the allegation of blasphemy, which are clear violations of Nigeria government’s obligations under the ACHPR, ICCPR, UNCAT and other international instruments.

The Nigerian government’s defence was essentially that the specific laws being challenged were constituent state laws and not federal laws and that when any law of a state or federal government was inconsistent with the provisions of the constitution (which guarantees fundamental rights), challenge to against such laws should lie to a national court in Nigeria and not the ECOWAS Court.

The Nigerian government further argued that it had sufficient domestic systems dealing with criminal matters, including fair prosecutions and bail matters, and that it had institutions dedicated to the protection of human rights.

The Nigerian government urged the court to dismiss the suit or strike it out for want of jurisdiction and for lack of merit. However, the court ruled that it had jurisdiction to entertain the action and ruled the action admissible. The court also declared that Section 210 of the Kano State Penal Code and Section 382(b) of the Kano State Sharia Penal Code Law (2000) were incompatible with Nigeria’s obligations to protect freedom of expression. The court consequently ordered the Federal Republic of Nigeria to repeal or amend the identified legal provisions and similar laws to align with Article 9(2) of the African Charter.

In an interview, Mr Okedara said: “It is important for you to note that while the court does not generally concern itself with domestic legislation of a member state, whenever there is an allegation that a domestic legislation of a member state is at variance with international law, particularly provisions of an international instrument which the member state has ratified, the court is bound to review such domestic legislation.

According to Mr Okedara, “The interesting thing is that under its human rights jurisdiction, the citizens of the ECOWAS Community are at liberty to approach the court on an allegation of violation of human rights without first meeting the requirements of exhaustion of local remedies, unlike the African Court. Further to that, the ECOWAS Court has recently deepened its jurisprudence on freedom of expression with its impressive and indeed creative judgments in some of the recent cases litigated before it. Some of these cases include: the Twitter Ban case and the Nigerian Broadcasting Code case of October 23, 2023, which I litigated before the court.”