The prosecution of Omoyele Sowore, a political activist and former presidential candidate, has entailed severe rights violations as a result of misconduct on the part of the authorities – specifically, the Department of Security Services (DSS) and the Attorney General of the Federation (Nigeria’s Attorney General or AGF). The American Bar Association’s Center for Human Rights has been monitoring the proceedings against Mr. Sowore as part of the Clooney Foundation for Justice’s TrialWatch Initiative.[1]
On August 2, 2019, after making a series of public statements calling for peaceful revolution, including for country-wide demonstrations on August 5 under the tagline #RevolutionNow, Mr. Sowore was arrested and detained. He was subsequently charged with, among other offenses, treason, money laundering, and cyberstalking. The totality of the facts strongly suggests that the charges against Mr. Sowore were levied in retaliation for his political activism, in violation of his rights to freedom of expression and peaceful assembly, and that the prosecution (first pursued by the DSS and then taken over by the AGF) has never possessed evidence on which to predicate allegations of criminal behavior.
First, Mr. Sowore had explicitly stated that his calls for revolution were non-violent and had created a code of conduct forbidding violence at the August 5 #RevolutionNow demonstrations. Indeed, the protest held on August 5 was entirely peaceful. Second, Mr. Sowore was not notified of the reasons for, or legal basis of, his arrest at the time it occurred. DSS’s statement to the press in the immediate aftermath of the arrest vaguely referenced threats of disorder but did not provide specifics as to Mr. Sowore’s allegedly criminal behavior. Third, following Mr. Sowore’s arrest the DSS sought an ex parte order – a decision made by a judge without requiring all of the parties to the dispute to be present – of detention on the basis of an anti-terrorism statute, arguing that Mr. Sowore should be detained so as to enable further investigation. When Mr. Sowore was charged 48 days later, the offenses alleged were unrelated to the anti-terrorism statute. This shift suggests that the statute was but a vehicle for the prosecution to continue detaining Mr. Sowore until it could figure out what charges to bring.
Fourth, eight months into the proceedings (after the AGF assumed control of the case), the prosecution dropped five of the seven charges without explanation. Notably, the amended charge sheet, which contains the two remaining counts of treason and conspiracy to commit treason, does not set forth any facts to support the allegation that Mr. Sowore had sought to overthrow the government by unlawful means: it simply cites Mr. Sowore’s involvement in the #RevolutionNow demonstrations. Fifth, the conduct of the trial, including the prosecution’s repeated requests for adjournment and refusal to share key materials with the defense, is further indication that the State lacks evidence of anything but Mr. Sowore’s peaceable political activism. In light of the above, the DSS and AGF’s pursuit of the case against Mr. Sowore breaches prosecutorial ethics, which mandate that that the State drop charges once it becomes apparent that the evidence is insufficient. The facts detailed above likewise give rise to a reasonable basis to conclude that the case is based on Mr. Sowore’s exercise of his rights to freedom of expression and peaceful assembly.
Lastly, Mr. Sowore’s due process and fair trial rights have consistently been abused throughout the proceedings, breaching international and regional standards. Among other things, his pre-trial detention – at times in defiance of judicial orders to release him – was unlawful and arbitrary, and authorities denied him access to counsel while in custody. Meanwhile, Mr. Sowore’s criminal trial has been delayed for over a year, largely as a result of the prosecution’s aforementioned failure to comply with court directives to disclose key materials to defense counsel. The prosecution’s conduct in this regard has violated Mr. Sowore’s right to a trial without undue delay.
The delays in the proceedings are in themselves a form of punishment: Mr. Sowore’s bail conditions require him to remain in Abuja – separated from home and family in the United States – until the conclusion of the trial. Given the risk that the proceedings will be prolonged indefinitely, the Center is releasing this preliminary report on the most egregious completed violations to date. Based on the violations (described further below), the AGF should drop the charges against Mr. Sowore, or the Federal High Court of Nigeria should dismiss the case. At the very least, Mr. Sowore should be permitted to return to the United States for the lengthy periods between scheduled hearings.
Background
Omoyele Sowore is a journalist, former presidential candidate, and opposition critic. He is a U.S. permanent resident and lives in New Jersey with his wife and two children. Mr. Sowore founded Sahara Reporters, an investigative online news outlet that covers corruption and political misconduct in Nigeria. He ran as a candidate in the 2019 presidential elections, in which incumbent Muhammadu Buhari was re-elected. After observers documented what they described as “voting irregularities” and “electoral violence,”[2] Mr. Sowore called for peaceful nationwide protests with the tagline #RevolutionNow. On August 2, 2019, he tweeted: “All that is needed for a #Revolution is for the oppressed to choose a date they desire for liberty, not subjected to the approval of the oppressor.”[3] The demonstrations were scheduled for August 5.
On August 2, at approximately 11 p.m., state security services – the self-styled Department of Security Services (DSS)[4] – stormed Mr. Sowore’s home and arrested him.[5] The DSS did not have a warrant at the time of the arrest.[6] According to defense counsel, agents “seriously hurt” Mr. Sowore’s arm and ankle in the course of the operation.[7] On August 4, the DSS announced that Mr. Sowore had been arrested because his proposed revolution would “threaten[] public safety, peaceful co-existence and social harmony”.[8]
On August 5, the DSS – relying on the Terrorism (Prevention) (Amendment) Act of 2013 – filed an ex-parte application requesting that Mr. Sowore be detained for 90 days.[9] On August 8, the Federal High Court in Abuja granted the application, although it only authorized detention for a period of 45 days.[10] Notably, Mr. Sowore was not physically brought before a judge until August 8, exceeding the 48-hour time limit established by Nigerian law.[11]
On September 20, 48 days after Mr. Sowore’s arrest, the DSS filed criminal charges: seven counts total, including charges of treason, cyberstalking, and money laundering.[12] Under Nigeria’s Police Act, police officers are empowered to conduct prosecutions – although the DSS is a security agency, it has understood itself to have similar powers.[13] The same charges brought against Mr. Sowore were also brought against activist Olawale Bakare, who had joined Mr. Sowore in calls for a nationwide protest.[14]
On September 24, a federal judge ordered the immediate release of Mr. Sowore conditioned on the surrender of his passport[15] (the court had declined to hear any challenge to the 45-day extension order until September 21, when the order expired).[16] Although Mr. Sowore surrendered his passport, the DSS refused to release him.[17] On September 30, while still detained, Mr. Sowore pled not guilty to all charges against him.[18] On October 4, a second judge contradicted the first judge’s release order, setting a higher amount for bail – about 280,000 U.S. dollars (later reduced) – and conditioning release on Mr. Sowore refraining from speaking to the media, from protesting, and from leaving Abuja.[19]
On November 4, Mr. Sowore was able to make bail under these more stringent conditions and on November 6, the court issued an order stating: Mr. Sowore “has been Released.” For a second time, however, the DSS refused to release Mr. Sowore – as reported by the BBC, “lawyers and activists stormed the facility to take Sowore home but were met with stiff resistance by operatives, who said they had no clearance to let him go.”[20] Notably, on October 26 of this year, the U.N. Working Group on Arbitrary Detention issued an opinion on Mr. Sowore’s detention between his arrest in August and early December 2019, finding it arbitrary because of, among other things, the DSS’s defiance of release orders, violations of Mr. Sowore’s right to due process and a fair trial, and the apparent use of detention to retaliate against Mr. Sowore for his political activism.[21]
Mr. Sowore’s trial opened on November 6 before the Federal High Court in Abuja, with the DSS serving as the prosecution.[22] The court adjourned the hearing because the prosecution had not disclosed witnesses’ written pretrial statements (akin to affidavits) to defense counsel.[23] The Constitution of Nigeria entitles every person charged with a criminal offense to adequate time and facilities for preparation of a defense.[24] In this regard, Nigeria’s Administration of Justice Act requires that the prosecution provide the defense with, among other things, its list of witnesses, summaries of witness statements, and any other document, report, or material that it plans to use in support of its case.[25] In Mr. Sowore’s case, the court ruled that the rights afforded to the defense by the Constitution required the prosecution to share not only summaries of witness statements but the complete written statements (hereinafter “full witness statements”).[26] The prosecution’s defiance of this directive would become a recurrent theme throughout the proceedings, to be discussed at length below.
On November 8, Mr. Sowore began a hunger strike to protest his continued detention, with demonstrators gathering outside DSS headquarters to demand his release.[27] Four days later, DSS officers “deployed excessive and deadly force” against the demonstrators.[28] The next hearing on December 5 was adjourned to December 6 because of the prosecution’s continued failure to provide full witness statements to the defense, with the court ordering the prosecution to pay 100,000 naira (about US$ 265) to the accused.[29] At the hearing, the judge directed the DSS to release Mr. Sowore, stating that he had made bail.[30] Although Mr. Sowore was finally released in the evening of December 5, his freedom was short-lived.[31]
On December 6, the prosecution had yet to share certain materials with the defense, including full witness statements.[32] At the end of the hearing, which was adjourned to February 2020 to permit the prosecution to both secure the attendance of witnesses and serve witness statements on the defense, members of the DSS stormed the courtroom and re-arrested Mr. Sowore.[33] Camera footage of the incident depicted agents forcefully subduing Mr. Sowore.[34] In the wake of an international outcry,[35] the AGF, Abubakar Malami, took over the prosecution of Mr. Sowore’s case from the DSS.[36] Mr. Sowore was released from DSS custody on the orders of the AGF on December 24.[37]
At Mr. Sowore’s next hearing on February 12, 2020, the prosecution under the AGF informed the court that the AGF had taken over the matter.[38] Due to delays in disclosure, the court ordered the prosecution to pay 200,000 naira (about US$ 526) to the accused.[39] At the subsequent hearing on February 13, Mr. Sowore pled not guilty to the amended charges – the AGF reduced the number of counts from seven to two[40] – treasonable felony (Section 41(a) of the Criminal Code Act) and conspiracy to commit treasonable felony (Section 516 of the Criminal Code Act).[41] The trial, however, did not commence because the prosecution had again failed to deliver full witness statements and video evidence to the defense, contrary to previous judicial orders.[42] At the next hearing on March 11, the court ordered the prosecution to call its first witness. When the witness began testifying beyond the written summary of the testimony that had been provided to the defense, the judge adjourned the hearing once again.[43]
Mr. Sowore’s criminal trial has been further delayed because of the global COVID-19 pandemic. His trial was scheduled to resume in October 2020 but did not because of COVID concerns: the court stated that it would be impossible to restrict social distancing measures because too many individuals had showed up to watch the proceedings.[44] The trial resumed on December 11, 2020, with the completion of the examination of the witness who had started testifying on March 11.[45] The court granted the prosecution’s motion for its remaining witnesses to be heard only in the presence of parties and accredited journalists and for their names to be excluded from the public record.[46] The proceedings were adjourned to January 25, 2021.
Since his release from detention in December 2019, Mr. Sowore has been forced to remain in Abuja, where he does not have a home. He appealed his bail conditions on April 30, 2020. The first hearing, scheduled for June 3, was adjourned due to the government’s failure to file a response to Mr. Sowore’s brief.[47] When Mr. Sowore’s lawyer arrived at court on the rescheduled date, July 8, he was informed that “the case was not listed and that the court would not be able to hear the case.”[48] According to local media, a court official told defense counsel that “only election petition cases would be entertained.”[49] On October 29, the court rejected Mr. Sowore’s appeal of his bail conditions on the grounds that Mr. Sowore had filed it jointly along with his co-accused, Olawale Bakare, finding: “in criminal cases, appeals are personal, and each defendant is required to file individual notice of appeal.”[50]
On November 19, 2019, in response to alleged violations committed by DSS, Mr. Sowore also filed a fundamental rights suit – which individuals can bring to enforce rights guaranteed by the Nigerian Constitution (such as the right to liberty and the right to freedom of expression). Like his criminal trial and his appeal on bail conditions, Mr. Sowore’s case seeking redress has faced delays: the case was first adjourned on February 19, 2020,[51] adjourned again on July 10 because the court refused to hear the case – despite it being on the day’s docket, and has subsequently yet to proceed.[52] The case is now scheduled to be heard in February 2021.
Suppression of Speech
The right to freedom of expression is guaranteed by Article 19 of the ICCPR and Article 9 of the African Charter on Human and People’s Rights.[53] The United Nations Human Rights Committee places a high value on “uninhibited expression”, particularly in “circumstances of public debate concerning public figures in the political domain and public institutions.”[54] Any restriction on freedom of expression must (i) be provided by law, such that individuals are able to regulate their conduct accordingly, (ii) pursue a legitimate aim, and (iii) be necessary and proportional.[55] The only legitimate grounds for restricting freedom of expression are to preserve respect for the rights or reputation of others, to protect national security, to protect public order, to protect public health, and to protect public morals.[56]
When invoking one of these grounds to justify a restriction on freedom of expression, the State “must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.”[57] The U.N. Human Rights Committee has warned that restrictions in the name of national security or other ostensibly legitimate aims “may never be invoked as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights.”[58]
The African Charter imposes similar standards. In 2019, the African Commission on Human and Peoples’ Rights adopted the Declaration of Principles on Freedom of Expression and Access to Information in Africa (Declaration), reaffirming the fundamental importance of the right to freedom of expression guaranteed by Article 9 of the African Charter.[59] The Declaration sets forth a test identical to that established by the U.N. Human Rights Committee: that any limitation on speech must be “prescribed by law; serve[] a legitimate aim; and [be] a necessary and proportionate means to achieve the stated aim in a democratic society.”[60] Legitimate aims are “to preserve respect for the rights or reputations of others; or to protect national security, public order or public health.”[61] With respect to necessity and proportionality requirements, the Declaration asserts that any limitation on freedom of expression must “originate from a pressing and substantial need that is relevant and sufficient; [must] have a direct and immediate connection to the expression […], and be the least restrictive means of achieving the stated aim; and [must] be such that the benefit of protecting the stated interest outweighs the harm to the expression”.[62] Lastly, in line with the legality principle outlined by the U.N. Human Rights Committee, laws that limit freedom of expression must be “clear, precise, accessible and foreseeable.”[63]
In the present case, the DSS stated to the press that it had arrested Mr. Sowore because his calls for revolution on social media would “threaten[] public safety, peaceful co-existence and social harmony”.[64] The State further alleged in a court filing that the protest planned for August 5, 2019 “constitute[d] a threat of violence to intimidate or cause panic in members of the public.”[65]
Although safeguarding national security is a legitimate ground for restricting expression, the DSS failed to establish a “direct and immediate connection” between Mr. Sowore’s posts and the alleged threat, as required under necessity and proportionality standards. Mr. Sowore is a public figure whose run for president gained momentum on an anti-corruption platform. He launched the #RevolutionNow movement to call for “nationwide peaceful protest against political corruption and bad governance,”[66] declaring that marches and rallies would continue “until we have the Nigeria of our dreams.”[67] Mr. Sowore’s demands were consistently non-violent: in one television interview, he emphasized that his call for revolution was a call for substantial change, “not war.”[68] He and his fellow organizers specifically forbade any form of violence ahead of the planned protest, as evidenced by a public code of conduct.[69] The protest that did take place on August 5 was entirely peaceful. As the United Nations Working Group on Arbitrary Detention concluded, “the reference to a revolution in [Mr. Sowore’s] discourse was not sufficient to categorize his call as other than a peaceful protest.”[70]
Meanwhile, in the course of the proceedings thus far, the State has yet to put forth evidence linking Mr. Sowore’s #RevolutionNow platform with imminent unrest and violence. The one witness who has testified, DSS officer Rasheed Olawale, stated merely that he had been involved in the arrest of Mr. Sowore and had received intelligence reports that Mr. Sowore was planning to overthrow the government.[71] No further specifics were provided. Mr. Olawale acknowledged that the August 5 #RevolutionNow demonstrations were not violent and had in fact not resulted in a revolution.[72]
Given the evidence that Mr. Sowore’s arrest, detention, and subsequent criminal prosecution were based solely on his comments regarding the need for a peaceful revolution, his right to freedom of expression was violated.
Suppression of Peaceful Assembly
Article 21 of the ICCPR and Article 11 of the African Charter protect the right to peaceful assembly. As stated by the United Nations Human Rights Committee, the right to peaceful assembly is a “fundamental human right,” which “entails the possibility of organizing and participating in a peaceful assembly … in a public location.”[73] No restriction of this right is permissible “unless it is (a) imposed in conformity with the law; and (b) necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”[74]
According to the Committee, Article 21 requires States to abstain from “unwarranted interference with peaceful assemblies.”[75] The provision not only “protect[s] participants while and where an assembly is ongoing [but] … extend[s] to actions such as participants’ or organizers’ mobilization of resources; planning; dissemination of information about an upcoming event; preparation for and travelling to the event; communication between participants leading up to and during the assembly” – in essence, to activities “associated” with the assembly.[76] Under the ICCPR, States are prohibited from treating assemblies in a discriminatory manner, including where they break up or otherwise restrict assembly on the basis of political opinion.[77]
The African Charter likewise prohibits restrictions of assembly on discriminatory grounds. The Guidelines on Freedom of Association and Assembly in Africa, adopted by the African Commission on Human and Peoples’ Rights, assert: “[t]he state shall not discriminate against assemblies on the basis of other illegitimate grounds, including sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, migration status, property, socio-economic status, birth, disability, age, sexual orientation or gender identity.”[78] As noted by the Commission, “any limitations imposed shall be in accordance with the principle of legality, have a legitimate public purpose, and be necessary and proportionate means of achieving that purpose within a democratic society.”[79] The Commission has also emphasized that “an assembly should be deemed peaceful if its organizers have expressed peaceful intentions, and if the conduct of the assembly participants is generally peaceful.”[80]
In the present case, the Nigerian authorities impermissibly restricted Mr. Sowore’s right to peaceful assembly. Mr. Sowore organized the August 5 #RevolutionNow demonstration; his activities in so doing fell under the protection of Article 21 of the ICCPR and Article 11 of the African Charter. As detailed above, the State failed to demonstrate that its intervention was necessary to prevent unrest and violence. Moreover, arresting and detaining Mr. Sowore for months – an extreme incursion on his right to liberty, as well as his right to peaceful assembly – was not the least restrictive measure the State could have employed, in contravention of the proportionality requirement.
On the whole, it appears that the State took action against Mr. Sowore because the demonstration was at odds with the Buhari government’s agenda. This type of discriminatory intervention violates Article 21 of the ICCPR and Article 11 of the African Charter.
Arbitrary Detention
Detention Without Justification
Under Article 9(1) of the ICCPR, “[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.” Article 6 of the African Charter contains parallel guarantees.[81] The United Nations Human Rights Committee has noted that the concept of “arbitrariness” must be “interpreted broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality”.[82] Not only should pretrial detention be the exception and as short as possible, but detention must be “lawful” (in accordance with domestic law) and “reasonable and necessary in all circumstances.”[83] This means that pretrial detention is appropriate for only a limited number of purposes – namely, to prevent flight, interference with evidence, and the recurrence of crime.[84] Furthermore, pretrial detention must be an individualized determinization that takes into account all the circumstances of the case.[85] Courts should favor the liberty of the accused to minimize the risk that an innocent person serves a sentence prior to acquittal.
Article 6 of the African Charter imposes similar requirements. According to the African Commission, detention must be a “last resort and should only be used where necessary and where no other alternatives are available”[86] and “standard operating procedures shall promote the use of alternatives” to detention.[87] The African Commission’s Luanda Guidelines require that there be “reasonable grounds to believe that the accused has been involved in the commission of a criminal offence that carries a custodial sentence,” and a showing that “there is a danger that he or she will abscond, commit further serious offences or if there is a danger that the release of the accused will not be in the interests of justice.”[88]
Because pretrial detention must be an individualized decision based on review of the reasonableness and necessity of detention pending trial, overly broad, vague, and expansive standards such as “public security” are insufficient justification for detention.[89] Correspondingly, that a defendant is a foreigner is not sufficient to establish likelihood of flight.[90] As the Human Rights Committee has explained, “the mere fact that the accused is a foreigner does not of itself imply that he may be held in detention pending trial.”[91] A State must substantiate any concern of flight and explain “why it could not be addressed by setting an appropriate sum of bail.”[92]
Throughout Mr. Sowore’s detention, DSS never provided adequate justification as to why detaining Mr. Sowore was “reasonable and necessary.” With respect to its ex-parte application to hold Mr. Sowore for 90 days pending formal charges, the DSS argued that detention was warranted because the agency still investigating his alleged crimes.[93] The court approved detention for 45 days on this basis (from August 8 to September 21). Standing alone, completion of an investigation is not a permissible rationale for deprivation of liberty, rendering Mr. Sowore’s detention during this period arbitrary. Correspondingly, that Mr. Sowore is a permanent resident of the United States was not sufficient justification for holding him in custody. As such, the court’s granting of the DSS’s application contravened the requirements that it must favor an accused’s liberty and treat detention as an exception.
Finally, from September 26 to October 4, November 6 to December 5, and December 6 to December 24, the DSS kept Mr. Sowore in custody in the face of judicial orders that he be released (as detailed at more length below), meaning that his detention was without legal basis and thereby arbitrary.
Defiance of Orders of Release
The DSS violated Mr. Sowore’s right to freedom from arbitrary detention by continuing to detain him in the face of multiple judicial orders for his release.
In Moriana Hernandez Valenina de Bazzano v. Uruguay, the United Nations Human Rights Committee found a violation of Article 9(1) where the applicant was “kept in custody in spite of a judicial order of release.”[94] Similarly, in its opinion on Mr. Sowore’s case, the United Nations Working Group on Arbitrary Detention emphasized: “any time an order for release, even for release on bail, is made and the detainee is not released, the subsequent detention becomes without legal ground. Maintaining a person in detention after release has been ordered by a court competent to exercise control over the legality of detention is a manifest violation of … article 9 of the Covenant and renders the detention arbitrary, because it lacks legal basis.”[95]
As noted above, on September 24, 2019, after the 45-day detention order had expired, a Federal High Court judge granted Mr. Sowore bail, ordering his immediate release on the condition that he surrender his passport. Although Mr. Sowore met this condition on September 26 and the court directed the DSS to comply with its order, the DSS refused to release him.[96] Subsequently, on October 4, notwithstanding the fact that the first judicial decision on bail had not been amended or overturned, [97] a second judge set a higher bail amount. On October 21, the same judge reduced the bail amount. On November 6, after Mr. Sowore made bail, the judge signed an order for his release from custody. The DSS, however, still refused to free Mr. Sowore. He remained detained until the start of his trial on December 5, when the presiding judge again ordered that Mr. Sowore be released. Mr. Sowore was released that evening.
Between September 25 and October 4, and November 6 and December 5, the DSS held Mr. Sowore in defiance of court edicts and without legal ground: his detention during this time was thus arbitrary.
At the conclusion of Mr. Sowore’s hearing on December 6, the day after he was released, DSS agents stormed the court and violently re-arrested him. Again, this intervention was in defiance of court orders and lacked legal basis. Mr. Sowore remained unlawfully – and therefore arbitrarily – detained for another 18 days, until the DSS finally released him on December 24 on the orders of the AGF.
Arbitrary Arrest and Detention Resulting from the Exercise of Rights
The United Nations Human Rights Committee has underscored that “[a]rrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the Covenant is arbitrary, including freedom of opinion and expression.”[98] The United Nations Working Group on Arbitrary Detention likewise regards deprivation of liberty as arbitrary when it “results from the exercise of the rights or freedoms” guaranteed by the ICCPR.[99]
As noted above, after gaining a sizeable following during his campaign for president, Mr. Sowore began calling for a peaceful revolution via social media. On August 2, the day of his arrest, Mr. Sowore posted a tweet that read: “All that is needed for a #Revolution is for the oppressed to choose a date they desire for liberty, not subjected to the approval of the oppressor.” Later that evening, DSS agents arrested him at his house. Mr. Sowore’s demands, however, were consistently peaceful. As noted above, he had explicitly proclaimed that his call for revolution was peaceful and forbade any violence. The protest that did take place on August 5 was entirely peaceful. On this basis, the United Nations Working Group on Arbitrary Detention concluded that Mr. Sowore’s “arrest and detention were designed to sanction him” for exercising his rights to “freedom of opinion, expression and peaceful assembly, [and] also to participate in the public affairs in his country.”[100]
The subsequent conduct of the proceedings has only reinforced the correctness of this opinion: the charge sheet fails to set forth facts showing that Mr. Sowore ever called for anything but a peaceful revolution; the allegations against Mr. Sowore have continually shifted, likewise indicating that there is no evidence of criminal behavior; and the prosecution has continually requested adjournments in lieu of producing and/or disclosing such evidence.
The above gives rise to a reasonable basis to conclude that Mr. Sowore’s arrest and detention were entirely based on his #RevolutionNow platform. Calls for peaceful protests, however, constitute a legitimate exercise of fundamental freedoms and do not a criminal case make. Mr. Sowore’s arrest and detention were therefore arbitrary.
Denial of Access to Counsel
Article 14(3)(b) of the ICCPR guarantees accused persons the right to “communicate with counsel of [their] own choosing.” Defendants must be granted “prompt access to counsel”[101] at all stages of criminal proceedings, including during the initial detention period. In Kelly v. Jamaica, for example, the U.N. Human Rights Committee found a violation of Article 14(3)(b) where police officers ignored the complainant’s request to speak to a lawyer for the first five days he was in custody.[102] A violation of Article 14(3)(b) was also found in Lyashkevich v Uzbekistan, where the complainant was interrogated without “access to the legal counsel of his choice.”[103]
Like the ICCPR, Article 7(1)(c) of the African Charter provides for the right to defense, which includes access to counsel. The African Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa affirm the right to counsel at all stages of a criminal prosecution: according to the African Commission, “[t]his right begins when the accused is first detained or charged.”[104]
Throughout Mr. Sowore’s detention, State authorities repeatedly obstructed counsel’s efforts to undertake representation. International and local organizations reported that Mr. Sowore was denied access to a lawyer during his first several days in custody.[105] At Mr. Sowore’s trial hearing on November 6, defense counsel stated that the DSS had blocked them from meeting with Mr. Sowore “over 10 times” in the months leading up to the start of trial.[106] In yet another instance, defense counsel’s request to meet with Mr. Sowore on December 4 – to review evidence shared by the prosecution earlier that day – was ignored by the DSS.[107] Subsequently, Mr. Sowore had no opportunity to meet with his lawyers ahead of his trial hearing on December 5.[108]
The State’s continuous denial of Mr. Sowore’s access to his lawyers, including at key points in the proceedings, contravened Article 14(3)(b) of the ICCPR and Article 7(1)(c) of the African Charter.
Undue Delay
The ICCPR and African Charter entitle individuals charged with criminal offenses to be tried without undue delay.[109] The calculus as to what constitutes a “reasonable time” between arrest and the conclusion of proceedings entails consideration of factors such as the “complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities.”[110] States carry a heightened burden to expedite proceedings in cases where defendants are detained.[111]
While the COVID-19 pandemic has disrupted judicial proceedings in Nigeria and elsewhere, many of the lags in Mr. Sowore’s trial clearly stem from the actions (and inaction) of State authorities. Mr. Sowore was initially held in detention for 48 days before being formally charged. When his trial started, the prosecution’s failure to conduct disclosure caused delays of approximately five months. At the first hearing on November 6, the court adjourned the proceedings because the prosecution had not shared key documents, including full witness statements, with defense counsel.[112]
The court ordered the prosecution to share full witness statements, video evidence, and other relevant materials prior to the next trial date, December 5.[113] Despite the court’s directive, the prosecution waited until December 4, the day before the hearing, to disclose any materials to the defense, leaving counsel with little time to prepare.[114] The prosecution further failed to share the full witness statements.[115] The judge found the prosecution’s actions so egregious that she awarded the accused 100,000 naira, to be paid by the prosecution, and ordered the prosecution to share the statements before the following hearing.[116] At the next day’s hearing on December 6, the prosecution had still yet to share the statements: the prosecutor averred that they were in the possession of absent witnesses and no further explanation was provided.[117] As a result, the court postponed the trial to February 2020.[118] At the February 12 and 13 hearings, the court was again forced to reschedule proceedings because the prosecution – now under the AGF – had yet to share the full witness statements. The court thereby ordered the prosecution to pay the accused 200,000 naira.[119] The next hearing on March 11 was postponed in part because of the prosecution’s failure to comply with the court’s order.
Since that date, the COVID-19 pandemic has further delayed Mr. Sowore’s trial: all judicial activities in Nigeria were suspended in late March, only resuming in August.[120] Mr. Sowore’s trial, however, has only just begun. As noted above, at the hearing scheduled for October 22 the court stated that it could not proceed because of the number of people in attendance. It did not explain, however, why it had not planned for this likely eventuality given public interest in the case, either through using a larger courtroom or livestreaming the proceedings. The trial subsequently resumed on December 11 with the completion of the testimony of the prosecution’s first witness. Proceedings have been adjourned to January 25, 2021, which will be almost a year and a half since Mr. Sowore’s arrest in August 2019.
Throughout this period, the State has been under a heightened obligation to try Mr. Sowore without undue delay. This burden was initially in place due to Mr. Sowore’s months-long detention, as when accused are detained, the State must expedite the proceedings. This burden persists because of the restrictive bail conditions: Mr. Sowore is required to remain in Abuja until the conclusion of his trial. As Mr. Sowore’s home is in New Jersey, he has been prevented from seeing his family for more than a year. The de facto confinement of Mr. Sowore in Abuja (what his lawyers call “Abuja prison”[121]) underscores the State’s responsibility to mitigate delays.
In light of the factors deemed relevant by the U.N. Human Rights Committee and the African Commission and Court, the prolonged nature of the proceedings thus far violates Mr. Sowore’s right to trial without undue delay.
Prosecutorial Misconduct
In addition to violating Mr. Sowore’s rights, the pattern of behavior described above breaches best practices on prosecutorial ethics. Under the United Nations Guidelines on the Role of Prosecutors, prosecutors in criminal proceedings must “not initiate or continue prosecution,” or should “make every effort to stay proceedings, when an impartial investigation shows the charges to be unfounded.”[122] Guidelines produced by the International Association of Prosecutors (IAP Guidelines), which complement the U.N. Guidelines on the Role of Prosecutors, require prosecutors to proceed in criminal cases “only when a case is well-founded upon evidence reasonably believed to be reliable and admissible,” and to “not continue with a prosecution in the absence of such evidence.”[123]
The African Commission’s Fair Trial Principles outline similar standards: “[p]rosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.”[124]
The totality of facts suggests that prosecutors never had reliable and admissible evidence that Mr. Sowore had committed a criminal offense. First, Mr. Sowore had explicitly stated that his calls for revolution were non-violent and had created a code of conduct forbidding violence at the August 5 #RevolutionNow demonstrations. Indeed, the protest held on August 5 was entirely peaceful. Second, Mr. Sowore was not notified of the reasons for, or legal basis of, his arrest at the time it occurred.[125] In the DSS’s public statement about the arrest on August 4, it vaguely referenced threats of disorder and tumult but did not specify any applicable legislation.[126] Third, following Mr. Sowore’s arrest the DSS sought an ex parte order of detention on the basis of an anti-terrorism statute, arguing that Mr. Sowore should be detained so as to enable further investigation. When Mr. Sowore was charged 48 days later, the offenses alleged were unrelated to the anti-terrorism statute; this shift suggests that the statute was but a vehicle for the DSS to continue detaining Mr. Sowore until it could figure out what charges to bring. Fourth, eight months into the proceedings (after the AGF assumed control), the prosecution dropped five of the seven charges without explanation. Notably, the amended charge sheet, which contains the two remaining counts of treason and conspiracy to commit treason, does not provide any facts to support the allegation that Mr. Sowore had sought to overthrow the government by unlawful means. Fifth, the conduct of the trial, including the prosecution’s repeated requests for adjournment and failure to disclose the requisite materials to the defense, indicates that the State – initially under the DSS and subsequently under the AGF – lacked sufficient evidence to proceed with the charges.
As noted above, the dearth of proof of criminal behavior not only indicates prosecutorial misconduct but also gives rise to a reasonable basis to conclude that Mr. Sowore was arrested, detained, and prosecuted so as to suppress his rights to freedom of expression and peaceful assembly.
Conclusion
It appears that the prosecution never possessed sufficient evidence on which to predicate a criminal case against Mr. Sowore. Calls for peaceful protest do not constitute treason. The proceedings have violated – and continue to violate – Mr. Sowore’s right to freedom of expression, right to freedom of assembly, and right to trial without undue delay, as well as best practices in prosecutorial ethics. The AGF should withdraw the charges or, alternatively, the Federal High Court should dismiss the case. At the very least, the court should allow Mr. Sowore to return to the United States and reunite with his family pending resumption of his trial on January 25.