EXECUTIVE SUMMARY
Since the end of 2020, the American Bar Association (ABA) Center for Human Rights has monitored proceedings against Eromosele Adene and Nicholas Mbah in Lagos, Nigeria as part of the Clooney Foundation for Justice’s TrialWatch initiative. Both cases show how the Nigerian authorities have used criminal charges, detention, and trials to retaliate against those who have peacefully participated in the #EndSARS demonstrations against police brutality. In particular, it appears that the police prosecutors who initiated the cases never had sufficient evidence to support their allegations that the accused acted anything but peacefully. As such, there are strong grounds to conclude that the proceedings against Adene and Mbah constitute an abuse of process and have entailed prosecutorial misconduct as well as interferences with the right to freedom of expression and right to freedom of peaceful assembly.
The Special Anti-Robbery Squad (SARS) was formed in 1992 as an independent unit tasked with combating robbery. Since SARS’ creation, there have been reports of abuses such as beatings, torture, bribes, and arbitrary detention. After years of public outcry and little progress, the movement to reform SARS gained renewed momentum in October 2020, when a video of a SARS officer shooting a man was circulated on social media and the #EndSARS hashtag started to trend globally. Demonstrations spread throughout the country, calling for not only the termination of SARS but broader governmental reforms. The security forces countered largely peaceful protests with force, in some cases firing tear gas and live rounds into crowds. Meanwhile, the authorities rounded up demonstrators, many of whom have since spent lengthy periods of time in detention pending trial.
On October 20, 2020, military officers shot and killed at least nine #EndSARS protesters at the Lekki toll gate in Lagos. Soon after, the demonstrations fizzled out. Although SARS has officially been disbanded, police abuses have persisted, judicial panels established to provide a remedy to SARS victims have largely stopped operating or have stalled in paying out awards, and the authorities continue to use the judicial system to harass those involved in the protests.
Nicholas Mbah and Eromosele Adene were prominent participants in the #EndSARS protests who were arrested in Lagos soon after the Lekki toll gate incident. Adene, who was arrested at home on November 7, 2020 following his call for renewed protests, spent nine days in jail before being released on bail. The case against him for various breach of peace offenses (including breach of peace by offensive publication in connection with a flyer promoting demonstrations) was thrown out almost a year later, on October 18, 2021, for want of prosecution. Mbah, who was arrested on October 29, 2020 after taking part in the #EndSARS protests, spent almost eight months in pretrial detention before being released on bail. His prosecution for unlawful assembly, breaking curfew, and attempted arson of a local secretariat is ongoing.
The trajectory of these cases indicates that they constituted an abuse of process as well as a violation of prosecutorial ethics. First, the underlying allegations changed dramatically throughout the course of the proceedings. Adene was initially accused of criminal incitement and cyberstalking (as well as with breach of peace offenses). Police prosecutors later withdrew the incitement and cyberstalking allegations. Mbah was initially charged with committing armed robbery as well as with waging an armed assault on government property and setting two police cars on fire. The police subsequently withdrew these counts, ultimately charging Mbah with unlawful assembly, breaking curfew, and attempted arson of a local secretariat. The shifting allegations in both cases suggest that the authorities were attempting to pin any criminal charge on the accused as opposed to assessing whether there was evidence of a crime.
Second, the prosecution has failed to present evidence that either Adene or Mbah acted anything but peacefully and appears to have attempted to purposely deceive the respective presiding magistrates. In Adene’s case, the police initially claimed that he “was arrested on the protest ground with exhibits caught on him.” However, it was soon apparent, including through video footage, that Adene had been arrested at home. Meanwhile, no “exhibits” – meaning inculpatory evidence of the crime – were ever presented in court. Similarly, in Mbah’s case, the police claimed that he was in possession of weapons at the time of arrest, consistent with the original charges of armed robbery and an armed assault on government property. The presence of weapons was cited in the police request to detain Mbah, which was approved by the magistrate. The armed robbery and armed assault charges, however, soon disappeared and no evidence of weapons was ever presented to the court (let alone evidence that Mbah had attempted to burn down the local secretariat – one of the remaining charges). Again, the fluctuating allegations made by the police prosecutors denote the spuriousness of the charges.
Third, the cases were riddled with irregularities. Neither Adene nor Mbah, for example, was brought before a court following arrest in the time frame prescribed by Nigerian legislation – 48 hours. Instead, Adene waited nine days to receive judicial review of his detention and Mbah four days. Subsequently, even after a court had ordered Mbah’s release on bail five months into his detention, prison officials refused to release him on a range of trifling procedural grounds, suggesting that detention was more of a retaliatory punishment than a necessary preventive measure. It is worth noting that the cases were brought by police prosecutors – not the public prosecutor’s office, meaning that those prosecuting the #EndSARS protesters were part of the same body whose actions were the subject of the protests.
Fourth, as mentioned above, the trials of Mbah and Adene took place against the backdrop of the judicial harassment of #EndSARS protesters. While a Lagos court ultimately threw out the case against Adene, the case against Mbah is still pending.
In addition to abuse of process issues, there are strong grounds to conclude that the proceedings violated the rights to free expression and peaceful assembly, which are protected by the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, to which Nigeria is party. Under these treaties, any limitations on the right to freedom of speech and peaceful assembly must be prescribed by law, have a legitimate objective, and be necessary and proportionate. Speech critical of the government, including assemblies with a political message, is worthy of heightened protection due to its importance in a democratic society.
As discussed above, there appears to have been no objective for the proceedings against Mbah and Adene beyond retaliation for their advocacy against state abuses, in contravention of the rights to freedom of expression and peaceful assembly. In contributing to an ongoing dialogue about a pressing public issue – police brutality – Mbah and Adene deserved protection, not persecution.
While Adene’s case concluded in October, Mbah is still facing criminal trial a year after the initial charges. The Yaba Magistrate Court is due to resume consideration of his case on June 24 and, meanwhile, charges that are reportedly based on the same underlying acts have been filed before the Lagos High Court. Assuming further failure by the State to produce evidence of unlawful conduct and in line with the positive precedent set in Adene’s case, the proceedings against Mbah should be swiftly terminated. More broadly, the government must cease politically motivated prosecutions against peaceful #EndSARS protesters and must provide remedies where appropriate to both those awaiting awards before judicial panels and those who have been unjustly charged, detained, and prosecuted for their peaceful role in the demonstrations.