Opinion; Subjects: NIGERIA, KENYA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.22-12774(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-third session, 30 March–8 April 2022
Opinion No. 25/2022 concerning Nwannekaenyi Nnamdi Kenny Okwu-
Kanu (Nigeria and Kenya)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work,1 on 30 December 2021 the Working Group
transmitted to the Governments of Nigeria and Kenya a communication concerning
Nwannekaenyi Nnamdi Kenny Okwu-Kanu. The Government of Nigeria replied to the
communication on 25 January 2022 while the Government of Kenya did not reply. Both
States are parties to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
* In accordance with paragraph 5 of the Working Group’s methods of work, Elina Steinerte did not
participate in the discussion of the present case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2022/25
General Assembly
Distr.: General
17 August 2022
Original: English
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
Submissions
Communication from the source
4.
Nwannekaenyi Nnamdi Kenny Okwu-Kanu is a citizen of the United Kingdom of
Great Britain and Northern Ireland, born in 1967. At the time of his arrest, he resided in
Nairobi. Mr. Kanu is an activist and the leader of the Indigenous People of Biafra, which he
founded in 2012. The source explains that the Indigenous People of Biafra is an organization
aimed at securing a referendum for Biafran sovereignty, independent from Nigeria.
a.
Arrest and detention
5.
The source reports that on 19 June 2021, Mr. Kanu, who was lawfully present in
Kenya, was arrested at Jomo Kenyatta International Airport in Nairobi by Kenyan security
forces. According to the source, Mr. Kanu was swiftly taken to an undisclosed and unknown
location, which was not a police station or any of the conventional Kenyan security detention
facilities. The Kenyan Special Forces reportedly subjected Mr. Kanu to eight days of severe
torture and ill-treatment, which caused him physical injuries and mental anguish.
6.
According to the source, on or about 29 June 2021, Mr. Kanu was extraordinarily
renditioned to Abuja with no prior hearing before a judicial or administrative body. The
source emphasizes that Mr. Kanu was not given access to counsel and was denied extradition
proceedings in Kenya. The source notes that, according to the Attorney General of Nigeria,
Mr. Kanu was apprehended and transported to Nigeria with the cooperation of Nigerian
intelligence officials and the International Criminal Police Organization (INTERPOL). Mr.
Kanu was then reportedly detained at the headquarters of the Department of State Services
in Abuja.
7.
Reportedly, the Federal Government of Nigeria initially charged Mr. Kanu with four
offences: conspiracy to commit treasonable felony in 2014 and 2015, treasonable felony in
2014 and 2015, defamation in 2015 and improper importation of goods in 2015. The source
alleges that these offences are manufactured and all relate to old events. Further, the Federal
Government of Nigeria allegedly amended the charges against Mr. Kanu to include
accusations of levying war against Nigeria in 2015, through a radio broadcast from London,
which the source alleges scrupulously refrained from inciting or encouraging violence or
illegality. The amended charges against Mr. Kanu reportedly amount to seven offences.
8.
The source reports that a hearing of Mr. Kanu’s case was scheduled to take place on
26 July 2021, but operatives of the Department of State Services failed to produce Mr. Kanu
in court without giving any reason, as a result of which the case was adjourned to 21 October
2021.
9.
According to the source, on 21 October 2021 a hearing was held to address
Mr. Kanu’s motion to dismiss. Reportedly, the Department of State Services blocked all
traffic to the courthouse, which forced Mr. Kanu’s legal team to walk more than one mile to
be able to attend the proceedings. The source also notes that the Department surrounded the
court complex with an array of armed forces, creating an atmosphere of intimidation and
danger. During the hearing, the court allegedly sharply reprimanded the Department for
repeatedly blocking the access of Mr. Kanu’s lawyers to their client and unambiguously
ordered them to permit Mr. Kanu to meet any three persons he wished on Mondays and
Thursdays, for two hours each day.
10.
The source reports that, the following Monday, 25 October 2021, Mr. Kanu’s lawyers
visited the headquarters of the Department of State Services, pursuant to the court order of
21 October. While Mr. Kanu’s lawyer confirmed his identity and was cleared for visitation,
the Department required the lawyers to wait for over 90 minutes. Thereafter, they reportedly
announced that Mr. Kanu’s international lawyer would never be permitted to visit his client
because he was a foreigner and that the key to the locked visitation room could not be found
and thus no one would be able to visit Mr. Kanu that day. As a result, Mr. Kanu’s attorneys
were unable to meet with their client.
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11.
Reportedly, an affidavit of facts was submitted to the Federal High Court of Nigeria
on 21 October 2021, demonstrating the Department’s contempt of court and denial of access
for Mr. Kanu’s lawyers to their client on four occasions. According to the source, the affidavit
of facts requested the dismissal of the seven-count amended charge based on the court’s lack
of jurisdiction. It also reportedly argued that the Federal Government of Nigeria had failed
to plead offences cognizable under Nigerian law and had violated international laws when it
ordered Mr. Kanu’s extraordinary rendition and denied him access to counsel of his choice.
12.
The source reports that on 10 November 2021, a hearing took place before the Federal
High Court of Nigeria to address Mr. Kanu’s motion to dismiss the amended charges.
Reportedly, the Department of State Services singled out Mr. Kanu’s international lawyer
from the other attorneys present and denied him entry to the courtroom for the fifth time,
without explanation. According to the source, Mr. Kanu’s attorneys had agreed to boycott
the court proceedings if the international lawyer was denied entry into the courtroom and
therefore decided to move forward with the boycott. A video press conference was allegedly
held outside the courtroom to explain the reasons for the boycott. The source reports that,
without communicating with any of Mr. Kanu’s lawyers, including his local lead counsel,
the judge of the Federal High Court consulted privately with the prosecutors, in Mr. Kanu’s
presence but without his legal representation. The source explains that the judge subsequently
adjourned the case until 19 January 2022, with no explanation.
13.
According to the source, since his extraordinary rendition Mr. Kanu has been detained
in solitary confinement at the headquarters of the Department of State Services in Abuja.
Reportedly, he is being held in a very small cell, where he is exposed to daily psychological
and mental torture without access to other inmates or any other person except for the officers
of the Department. Mr. Kanu is also allegedly denied access to reading or writing materials
and has been refused access to professional medical care despite a serious heart ailment. The
source reports that Mr. Kanu’s life is in jeopardy and that he suffers from a medical condition
occasioned by gradual depletion of potassium in his system, which has defied any medical
solution given to him within the Department facilities.
14.
The source notes that medical examinations have revealed a dangerous plunge in his
potassium levels. The source alleges that the facilities’ medical personnel have collected 21
blood samples from him, without permission, in search of the cause of this drastic depletion.
The source adds that the Nigerian authorities were feeding Mr. Kanu poorly prepared food
and subjecting him to food deprivation, with the intent of slowly killing him, until an action
was filed on his behalf. It is noted that there have been some recent improvements in the
provision of Mr. Kanu’s meals.
15.
The source reports that during his detention in Abuja, Mr. Kanu has been permitted
access to two persons on Mondays and Thursdays, for two hours each session. The source
notes that such a time limitation is inadequate for Mr. Kanu to be able to prepare a full and
professional defence. Further, the source explains that his lawyers cannot take any notes
during their meetings with Mr. Kanu as they are denied pencils and paper. The source adds
that on 2 and 6 September 2021, the Department of Security Services in Abuja denied access
to one of Mr. Kanu’s counsels during a meeting aimed at advising him on international law
issues.
b.
Legal analysis
16.
The source first submits that the detention of Mr. Kanu in solitary confinement is
arbitrary and violates article 9 of the Universal Declaration of Human Rights and article 9 (1)
of the Covenant. The source notes that, as a result of the judge adjourning the case until
19 January 2022, Mr. Kanu has been deprived of liberty for over six months, since June 2021,
and held in solitary confinement without a hearing on the merits of the government’s
allegations and without access to the medical care he needs. The source submits that this
constitutes the very definition of arbitrary detention and violates peremptory norms of
international law.
17.
Further, the source contends that Mr. Kanu’s detention is void of legal basis. The
source submits that the Federal Government of Nigeria alleges that Mr. Kanu committed the
crime of conspiracy to commit a treasonable felony through an agreement with others to be
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broadcast from London, with a view to establishing Biafran sovereignty. The source notes
that, while Nigerian law defines treason as “levying war” against Nigeria, the Federal
Government of Nigeria does not allege any action implicating Mr. Kanu in the contemplation,
planification or incitement of war against Nigeria. The source argues that Mr. Kanu was in
fact advocating for a peaceful referendum for the establishment of Biafran sovereignty, in
conformity with international and other relevant laws.
18.
Additionally, the source reports that the Federal Government of Nigeria charged
Mr. Kanu with committing treasonable felony years ago, because of a broadcast on Radio
Biafra of announcements of the preparation for secession of states in the South-East and
South-South zones of Nigeria. The source notes that this charge similarly does not allege that
the broadcast contemplated, incited, urged or encouraged warfare or violence of any type
against Nigeria.
19.
The source also notes that Mr. Kanu is accused of defamation for an old broadcast
critical of an unnamed Major-General. The source argues that this falls under Mr. Kanu’s
right to free speech and protected opinion guaranteed under article 19 of the Universal
Declaration of Human Rights and article 19 of the Covenant.
20.
The source also observes that Mr. Kanu was accused of illegally importing a radio
transmitter, wrongly characterized as a used household item, over six years before he was
charged. The source submits that such a trivial charge cannot, by any measure, warrant
Mr. Kanu’s placement in solitary pretrial detention, without access to the necessary medical
care for his cardiac condition or access to counsel to prepare his defence.
21.
According to the source, Mr. Kanu’s detention is also arbitrary insofar as he was not
afforded a hearing and was denied his due process rights when he was arrested in Kenya and
subjected to extraordinary rendition by the Federal Government of Nigeria, in violation of
articles 9 and 14 of the Covenant. The source also argues that where an accused is kidnapped
and forcibly brought within a country’s jurisdiction, the courts derive their jurisdiction from
the government’s own misconduct and that governments should not benefit from their own
wrongdoing.2
22.
Further, the source submits that Mr. Kanu was denied the right to properly prepare a
defence. The source argues that Mr. Kanu’s counsels were denied access to their client and
to the materials necessary to take notes of meetings, and were not afforded the time and
facilities necessary to prepare Mr. Kanu’s defence, contrary to article 14 (2) (b) of the
Covenant. Furthermore, the source contends that the refusal to allow Mr. Kanu’s international
counsel into the courtroom on 10 November 2021 violated his right to be represented by
counsel of his choosing, as guaranteed under the Constitution of Nigeria and various treaties
to which Nigeria is a signatory. The source further submits that the fact that the judge
consulted privately with the prosecutors during the 10 November 2021 hearing, while Mr.
Kanu’s counsels were denied entry to the courtroom, constitutes a prosecutorial bias.
23.
The source also contends that, by placing Mr. Kanu in solitary confinement and
denying him medical care to treat his heart condition, the Federal Government of Nigeria
subjected him to torture, in violation of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. The source concludes that such violation
makes Mr. Kanu’s detention arbitrary under article 9 of the Universal Declaration of Human
Rights and article 9 (1) of the Covenant.
24.
According to the source, the Federal Government of Nigeria detained Mr. Kanu in
retaliation for his political opinions, contrary to article 19 of the Universal Declaration of
Human Rights and article 19 of the Covenant. Based on the fourth count of the amended
charges, the source alleges that Mr. Kanu is being detained for professing his membership of
the Indigenous People of Biafra.
25.
In that regard, it is alleged that the Federal Government of Nigeria arrested Mr. Kanu
on terrorism-related offences in 2015 and attempted to assassinate him on 10 September 2017
in an army-led attack, during which five individuals were killed and 30 others wounded.
2 The source refers to United States Court of Appeals, Second Circuit, United States v. Toscanino, 500
F. 2d 267, 275 (1974).
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Further, on 21 September 2017, the Federal Government of Nigeria reportedly listed the
Indigenous People of Biafra as a terrorist organization during ex parte proceedings lacking
elements of due process, including notice and the opportunity to be heard, and based on the
President’s assertions alone. The organization’s challenge to the listing is reportedly pending
on appeal. The source also reports that the African Commission on Human and Peoples’
Rights and United Nations experts have raised concerns as to the justification and legality of
the organization being placed on the list of terrorist organizations.
26.
Finally, the source alleges that there exists hostility towards Biafrans in Nigeria and
that Mr. Kanu’s detention is based substantially on his ethnicity as a Biafran.
Responses from the Governments
27.
On 30 December 2021, the Working Group transmitted the allegations from the source
to the Governments of Nigeria and Kenya under its regular communications procedure. The
Working Group requested the Governments to provide, by 28 February 2022, detailed
information about the current situation of Mr. Kanu and to clarify the legal provisions
justifying his continued detention, as well as its compatibility with the obligations of Nigeria
and Kenya under international human rights law, and in particular with regard to the treaties
ratified by the two States. Moreover, the Working Group called upon the Government of
Nigeria to ensure Mr. Kanu’s physical and mental integrity.
28.
On 25 January 2022, the Government of Nigeria submitted a reply in which it stated
that, given that the case was ongoing in the national courts, “any reaction by the Federal
Government of Nigeria will be unconscionable”. Nothing further was submitted by the
Government of Nigeria.
29.
The Working Group regrets that it received no reply from the Government of Kenya
and that it also did not seek an extension in accordance with paragraph 16 of Working
Group’s methods of work.
Discussion
30.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations. Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations.3 In the present case, the Government of Kenya has opted not to challenge
the prima facie credible allegations made by the source while the Government of Nigeria has
only stated that since the case is ongoing in national courts, “any reaction by the Federal
Government of Nigeria will be unconscionable”.
31.
Noting that the allegations submitted by the source concern two Governments, the
Working Group proceeds to examine them separately.
a.
Allegations in relation to Kenya
32.
In the absence of a response from the Government of Kenya, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
33.
The Working Group shall consider whether the arrest and detention of Mr. Kanu by
the Government of Kenya amounted to arbitrary detention within any of the categories
recognised in the working methods of the Working Group.
i.
Category I
34.
The source has submitted, and the Government has chosen not to contest, that when
Mr. Kanu was arrested at Nairobi Airport by Kenyan Security Forces on 19 June 2021, he
was swiftly taken to an undisclosed and unknown location, which was not a police station or
3 A/HRC/19/57, para. 68.
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any of the conventional Kenyan security detention facilities, and was subjected to eight days
of severe torture and ill-treatment, before he was extraordinarily renditioned to Nigeria on or
about 29 June 2021.
35.
The source submitted that Mr. Kanu is a British citizen, who was lawfully present in
Kenya. What is clear from the source’s narration is that no arrest warrant was produced to
Mr. Kanu at the time of his arrest and the Kenyan authorities did not explain to him the
reasons for his arrest. The Working Group is mindful that the Government has chosen not to
contest any of these allegations, although it had the opportunity to do so.
36.
The Working Group has consistently stated that for a deprivation of liberty to have a
legal basis, the authorities must invoke that legal basis and apply it to the circumstances of
the case through an arrest warrant. Stated differently, international law on detention includes
the right to be presented with an arrest warrant in cases that do not involve arrests made in
flagrante delicto, to ensure the objectivity of the arrest process. It is also required that the
decision on whether the arrest is warranted be taken by an outside authority, i.e., a competent,
independent and impartial judicial authority. This is procedurally inherent in the right to
personal liberty and security and the prohibition of arbitrary deprivation under articles 3 and
9 of the Universal Declaration of Human Rights, article 9 of the Covenant, and principles 2,
4 and 10 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.4
37.
The Working Group is mindful that article 9 (2) of the Covenant requires that anyone
who is arrested is not only informed of the reasons for the arrest but is also promptly informed
of any charges against them. As explained by the Human Rights Committee in its general
comment No. 35 (2014), the obligation encapsulated in article 9 (2) has two elements:
information about the reasons for the arrest must be provided immediately upon arrest and
there must be prompt information about the charges provided thereafter (para. 27). Failure to
do so violates article 9 of the Universal Declaration of Human Rights, article 9 of the
Covenant, and principle 10 of the Body of Principles, and renders the person’s arrest devoid
of any legal basis.
38.
Consequently, Mr. Kanu’s arrest without an arrest warrant and with no explanation as
to the reasons for his arrest violated his rights under article 9 of the Universal Declaration of
Human Rights, article 9 of the Covenant and principles 2, 4, 10, and 36 (2) of the Body of
Principles.
39.
Furthermore, following his arrest, Mr. Kanu was reportedly taken to an undisclosed
and unknown location, which was not a police station or any of the conventional security
detention facilities of Kenya, where he remained for eight days before he was transferred to
Nigeria. No family members or lawyers knew about his location or could get access to him.
While so detained, he was allegedly tortured and ill-treated. The Working Group once again
notes the failure of the Government of Kenya to address these allegations.
40.
The Working Group considers that following his arrest on 19 June 2021, Mr. Kanu
was subjected to enforced disappearance as he was taken to and held at an undisclosed
location and his whereabouts were unknown. He remained forcibly disappeared throughout
his extraordinary rendition to Nigeria, in violation of Mr. Kanu’s rights under article 9 (1) of
the Covenant. The Working Group recalls that enforced disappearances are prohibited by
international law and constitute a particularly aggravated form of arbitrary detention.5
41.
Moreover, recalling the uncontested allegations that Mr. Kanu was taken to a secret
location, the Working Group reiterates that holding persons at secret, undisclosed locations
and in circumstances undisclosed to the person’s family and lawyers, as was the case with
Mr. Kanu, violates their right to contest the legality of their detention before a court or
tribunal under article 9 (4) of the Covenant. It entails a wilful refusal to disclose the fate or
4 The Working Group has maintained from its early years that the practice of arresting persons without
a warrant renders their detention arbitrary. See, for example, decisions No. 1/1993, paras. 6–7; and
No. 44/1993, paras. 6–7. For more recent jurisprudence, see opinions No. 21/2017, para. 46; No.
68/2018, para. 39; and No. 34/2020, para. 46.
5 See opinions No. 5/2020; No. 6/2020; No. 11/2020; No. 13/2020; No. 77/2020; and No. 38/2021. See
also Human Rights Committee, general comment No. 35 (2014), para. 17.
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whereabouts of the persons concerned or to acknowledge their detention. That lacks any valid
legal basis under any circumstance. Judicial oversight of any detention is a central safeguard
for personal liberty and is critical in ensuring that detention has a legitimate basis. In the
circumstances of the detention of Mr. Kanu at an unknown location, the Working Group finds
that his right to an effective remedy under article 8 of the Universal Declaration of Human
Rights and article 2 (3) of the Covenant were violated. He was also placed outside the
protection of the law, in violation of his right to be recognized as a person before the law
under article 6 of the Universal Declaration of Human Rights and article 16 of the Covenant.
42.
The Working Group also considers that Mr. Kanu’s time in detention following his
arrest constitutes pretrial detention, which violated the prescriptions of article 9 (3) of the
Covenant insofar as Mr. Kanu was not presented before a judicial authority within 48 hours
and no individual assessment of the appropriateness of his pretrial detention took place.
43.
The source asserts and the Government does not contest that on or about 29 June 2021,
Mr. Kanu was subjected to extraordinary rendition to Nigeria, with no prior hearing before a
judicial or administrative body. The source emphasizes that Mr. Kanu was not given access
to counsel and was denied any judicial proceedings altogether while in Kenya. The source
notes that, according to the Attorney General of Nigeria, Mr. Kanu was apprehended and
transported to Abuja with the cooperation of Nigerian intelligence officials and INTERPOL.
44.
The source claims that, in the present case, there was no fair and public hearing
concerning Mr. Kanu’s removal from Kenya to Nigeria. The source stresses that involuntary
expulsion to a foreign State without a hearing by judicial authorities does not conform with
due process considerations.6
45.
It is clear from the facts as narrated by the source and not contested by the Government
that Mr. Kanu was never brought before a court before leaving Nairobi. Instead, he was taken
against his will, outside any legal process and without any legal protection. He was forcibly
conveyed from Nairobi to Abuja under an arrangement between the Governments of Kenya
and Nigeria, and with the cooperation of Nigerian intelligence officials and INTERPOL, as
confirmed by the Attorney General of Nigeria.
46.
As the Working Group has previously observed, international law regarding
extradition provides procedures that must be observed by countries in arresting, detaining
and returning individuals to face criminal proceedings in another country and in ensuring that
their right to a fair trial is protected.7 There is also an explicating obligation arising from
article 13 of the Covenant, which requires that the person who is to be expelled “be allowed
to submit the reasons against his expulsion and to have his case reviewed by, and be
represented for the purpose before, the competent authority or a person or persons especially
designated by the competent authority”. The Working Group finds that all these requirements
were ignored in the present case and the removal of Mr. Kanu from Kenya amounted to
extraordinary rendition.
47.
As the Working Group has explained, because it is aimed at avoiding all procedural
safeguards the practice of so-called renditions is not compatible with international law.8 The
Working Group has previously found a violation of article 9 of the Covenant and detention
to be arbitrary where individuals were transferred to another country outside the confines of
any legal procedure, such as extradition and were not allowed access to counsel or to any
judicial body to contest the transfers.9 That is precisely what happened to Mr. Kanu in the
present case. The Working Group therefore finds that Mr. Kanu’s arrest and transfer to
Nigeria lacked a legal basis and due process of law, in violation of article 9 of the Universal
Declaration of Human Rights and article 9 of the Covenant.
48.
Further, the Working Group notes that this was preceded by the secret detention of
Mr. Kanu. As the Working Group and other experts have stated regarding State responsibility
in the joint study on global practices in relation to secret detention in the context of countering
6 Opinion No. 42/2020, para. 64.
7 A/HRC/48/55 paras. 51–60. See also, for example, opinions No. 57/2013; No. 2/2015; No. 11/2018;
and No. 23/2020.
8 A/HRC/4/40, summary, p. 2.
9 Opinion No. 47/2005, para. 19.
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terrorism: “Secret detention, involving the denial or concealment of a person’s detention,
whereabouts or fate has the inherent consequence of placing the person outside the protection
of the law. The practice of ‘proxy detention’, where persons are transferred from one State
to another outside the realm of any international or national legal procedure (‘rendition’ or
‘extraordinary rendition’) for the specific purpose of secretly detaining them, or to exclude
the possibility of review by the domestic courts of the State having custody of the detainee,
or otherwise in violation of the well-entrenched principle of non-refoulement, entails exactly
the same consequence. The practice of ‘proxy detention’ involves the responsibility of both
the State that is detaining the victim and the State on whose behalf or at whose behest the
detention takes place.”10
49.
Moreover, in its resolution 37/3, the Human Rights Council stressed that no one
should be held in secret detention and urged States to ensure that all persons held in detention
under their authority were provided with access to the courts and to investigate all alleged
cases of secret detention, including on the pretext of counter-terrorism (paras. 8–9).
50.
For the reasons articulated above, the Working Group finds that the Government of
Kenya failed to establish a legal basis for Mr. Kanu’s detention. His detention and
extraordinary rendition to Nigeria were thus arbitrary under category I.
ii.
Category II
51.
The source submits, and the Government has chosen not to contest, that at the time of
his arrest, Mr. Kanu, a citizen of the United Kingdom, was a resident of Nairobi. He was an
activist and the leader of the Indigenous People of Biafra, an organization founded in 2012
with the objective of securing a referendum for Biafran sovereignty, independent from
Nigeria. Mr. Kanu became a political opponent in the diaspora, opposed to the repression by
the Government of Nigeria of political dissent and freedom as it relates to the issue of Biafra.
52.
Noting that the Government of Kenya has failed to provide any reason for Mr. Kanu’s
arrest and detention, the Working Group concludes that his deprivation of liberty constitutes
a violation of the exercise of universally recognized human rights, in particular the right to
freedom of opinion and expression. Given that Mr. Kanu was critical of the position of the
Government of Nigeria on the issue of Biafra, his arrest and detention by the Government of
Kenya can be interpreted as a calculated move in cooperation with the Government of Nigeria
to curb his dissent.
53.
Freedom of opinion and expression are fundamental human rights enshrined in article
19 of the Universal Declaration of Human Rights and articles 19 of the Covenant. The
Governments of Kenya and Nigeria have a duty to respect, protect and fulfil the right to hold
and express opinions, including those that are not in accordance with their official policy,
and the right to think and manifest personal convictions at odds with official government
ideology under the peremptory norms of customary international law.11
54.
The Working Group considers that Mr. Kanu’s criticism of the position of the
Government of Nigeria on the Biafra question is protected under his right to freedom of
opinion and expression and cannot be the basis for the deprivation of liberty. The Working
Group recalls that detention purely due to the peaceful exercise of rights protected by the
Covenant may be arbitrary.12 It also recalls that freedom of expression includes the right to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, and that
this right includes the expression and receipt of communications of every form of idea and
opinion capable of transmission to others, including political opinions.13
55.
Similarly, in resolution 12/16, the Human Rights Council called on States to refrain
from imposing restrictions that are not consistent with article 19 (3), including on discussion
of government policies and political debate; reporting on human rights; engaging in peaceful
10 A/HRC/13/42, para. 36.
11 See opinions No. 76/2017, para. 62; No. 83/2017, para. 70; No. 88/2017, para. 32; and No. 94/2017,
para. 59.
12 Human Rights Committee, general comment No. 35 (2014), paras. 17 and 53.
13 Human Rights Committee, general comment No. 34 (2011), para. 11.
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demonstrations or political activities, including for peace or democracy; and the expression
of opinion and dissent, religion or belief.14
56.
In the present case, the Government of Kenya has presented no exceptions permitted
under article 19 (3) of the Covenant, nor is there any evidence to suggest that Mr. Kanu’s
exercise of his freedom of opinion and expression was anything but peaceful. The Working
Group therefore concludes that Mr. Kanu’s detention was arbitrary under category II.
iii.
Category III
57.
Given the findings of the Working Group under category II, no arrest, detention or
trial of Mr. Kanu should have taken place. However, Mr. Kanu was arrested, subjected to
extraordinary rendition and trial proceedings against him are ongoing in Nigeria. The source
has made numerous submissions concerning violations of Mr. Kanu’s right to a fair trial in
both Kenya and Nigeria.
58.
The source has alleged that Mr. Kanu was denied access to counsel throughout his
detention in Kenya and especially during his removal to Nigeria. The Government of Kenya
has not contested these submissions.
59.
The Working Group considers legal representation a core facet of the right to a fair
trial and an essential guarantee against arbitrary detention. Legal assistance must be available
at all stages of criminal proceedings, namely during the pretrial period, the trial and the
appellate stages, to ensure compliance with fair trial guarantees.15 Denial of access to lawyers
substantially undermines and compromises the ability of accused individuals to defend
themselves in any judicial proceedings. Principle 18 (3) of the Body of Principles and rule
61 (1) of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules), stipulate that defendants must have access to legal counsel without
delay.
60.
This was clearly denied to Mr. Kanu and the Working Group therefore finds a
violation of article 14 (3) (b) of the Covenant. The Working Group views this violation as
particularly grave, given its findings of the extraordinary rendition of Mr. Kanu to Nigeria
and the subsequent violations of his rights there (see below).
61.
Further, the Working Group recalls that in terms of article 36 of the 1963 Vienna
Convention on Consular Relations, to which both Kenya and Nigeria are parties, consular
assistance ought to be provided for those detained in a foreign country. Additionally,
principle 16 (2) of the Body of Principles recognizes the right of a detained foreign national
to communicate by appropriate means with a consular post or the diplomatic mission of the
State of which he or she is a national. The Nelson Mandela Rules also provide that: “Prisoners
who are foreign nationals shall be allowed reasonable facilities to communicate with the
diplomatic and consular representatives of the State to which they belong.”16
62.
Although Mr. Kanu is a British citizen, the Kenyan authorities failed to inform the
British authorities of his detention in Kenya or provide him with an opportunity to
communicate with the British authorities. They did not inform him of his right to
communicate with a British consular officer either or facilitate such communication. The
Working Group considers that the failure by the Government of Kenya to respect Mr. Kanu’s
right to consular protection under customary international law, as codified in article 36 of the
Vienna Convention on Consular Relations, during his initial arrest and detention, violates
article 9 of the Universal Declaration of Human Rights, article 9 of the Covenant and
principle 16 (2) of the Body of Principles.
63.
Furthermore, the Working Group notes with grave concern the uncontested
allegations regarding the treatment to which Mr. Kanu was subjected during his enforced
disappearance in Kenya following his arrest.
14 See also Human Rights Committee, general comment No. 34.
15 A/HRC/45/16, paras. 51–53; see also the United Nations Basic Principles and Guidelines on
Remedies and Procedures on the Right of Anyone Deprived of their Liberty to Bring Proceedings
Before a Court, principle 9 and guideline 8.
16 Rule 62.
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10
64.
The Working Group’s mandate extends to alleged ill-treatment that negatively affects
the ability of detainees to prepare their defence as well as their chances of a fair trial,17 and
the burden is on the Government to prove that any statement made by Mr. Kanu was given
freely.18 Although it is not clear what, if any, statements Mr. Kanu gave as a result of the
deplorable treatment he was subjected to, the Working Group considers this irrelevant.
Following such treatment, any proceedings against Mr. Kanu became tainted, unfair and
unjust and incompatible with the fundamental requirements of article 14 (1) and (3) of the
Covenant. The Working Group makes this finding, particularly noting the extraordinary
rendition to which Mr. Kanu was subjected.
65.
The Working Group thus concludes that the arrest and detention of Mr. Kanu in Kenya
violated his right to a fair trial and were therefore arbitrary under category III.
66.
Finally, the Working Group must address the collusion between the Governments of
Kenya and Nigeria that resulted in Mr. Kanu’s rendition to Nigeria. Indeed, it has already
been affirmed by the Attorney General of Nigeria that the Kenyan authorities colluded with
the Nigerian authorities, which resulted in Mr. Kanu’s rendition to Nigeria, and the Working
Group has also established such collusion in the present opinion. The Working Group
therefore finds that the Government of Kenya is jointly responsible with the Government of
Nigeria for the arrest, detention and extraordinary rendition of Mr. Kanu to Nigeria as well
as for any violations of his rights that took place in Kenya and Nigeria.
b.
Allegations in relation to Nigeria
67.
The Working Group thanks the Government for its albeit short reply that only states
that since the proceedings against Mr. Kanu are ongoing in the national courts, “any reaction
by the Federal Government of Nigeria will be unconscionable”.
68.
In that regard, as a preliminary issue the Working Group wishes to clarify that the
procedural rules applicable to communications from sources and the responses of
Governments are contained in its methods of work19 and in no other international instrument
that the parties might consider applicable. Its methods of work contain no applicable rule
impeding the consideration of communications due to the lack of exhaustion of domestic
remedies in the country concerned. Sources have no obligation therefore to exhaust domestic
remedies before sending a communication to the Working Group 20 and equally nothing
prevents the Working Group from engaging with the allegations of arbitrary detention in
cases when the national proceedings are still ongoing.
69.
Turning to the substance of the allegations, the source reports that following his
rendition to Nigeria, Mr. Kanu was reportedly detained in solitary confinement at the
headquarters of the Department of State Services in Abuja. He was initially charged with four
offences: conspiracy to commit treasonable felony in 2014 and 2015, treasonable felony in
2014 and 2015, defamation in 2015 and improper importation of goods in 2015, all of which
the source claims relate to old events. The charges were later amended to include accusations
of levying war against Nigeria in 2015 through a radio broadcast from London.
70.
According to the source, a hearing scheduled to take place on 26 July 2021 was
adjourned to 21 October 2021, as the authorities failed to produce Mr. Kanu in court and did
not give any reason for such failure. On 21 October 2021, the Department reportedly blocked
all traffic to the courthouse where the hearing on Mr. Kanu’s motion to dismiss was to take
place. As a result, Mr. Kanu’s legal team was forced to walk more than one mile to be able
to attend the proceedings. An array of armed forces allegedly surrounded the courthouse
creating an atmosphere of intimidation and danger.
71.
The source states that even after the court ordered Mr. Kanu’s lawyers to be given
access to him, his legal team was ill-treated and made to wait for over an hour while his
international lawyer was not allowed to visit his client because he was a foreigner. The
authorities also reportedly informed the legal team that the key to the locked visitation room
17 See, for example, opinion No. 29/2017, para. 63. See also E/CN.4/2004/3/Add.3, para. 33.
18 Opinions No. 45/2018 and No. 86/2020. See also general comment No. 32 (2007), para. 41.
19 A/HRC/36/38.
20 See opinions No. 19/2013; No. 41/2017; No. 78/2018 and No. 51/2020.
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11
could not be retrieved and thus no one would be able to visit Mr. Kanu on a day directed by
the court. As a result, Mr. Kanu’s attorneys were unable to meet with their client.
72.
On 10 November 2021, a hearing reportedly took place before the Federal High Court
of Nigeria in Abuja to address Mr. Kanu’s motion to dismiss the amended charges. The
Department of State Services singled out Mr. Kanu’s international lawyer from the other
attorneys present and denied him entry into the courtroom for the fifth time, without any
explanation. As a result, Mr. Kanu’s attorneys boycotted the hearing. Without
communicating with any of Mr. Kanu’s lawyers, the judge of the Federal High Court of
Nigeria consulted privately with the prosecutors and adjourned the case until 19 January 2022.
73.
All these very serious allegations were put to the Government, which chose not to
address the substance of any of them.
i.
Category I
74.
According to the source, following the rendition of Mr. Kanu from Kenya to Nigeria
on or about 29 June 2021, the Nigerian authorities took custody of Mr. Kanu without
producing an arrest warrant.
75.
The Working Group has already stated (see para. 36 above regarding the Government
of Kenya) that detention in the absence of an arrest warrant, as well as in the absence of any
explanation for the reasons for arrest, violates articles 3 and 9 of the Universal Declaration
of Human Rights, article 9 of the Covenant, and principles 2, 4 and 10 of the Body of
Principles. Since such events also took place in Nigeria following the forcible transfer of Mr.
Kanu there, the Working Group finds a further violation of those rights by the Government
of Nigeria.
76.
Similarly, the Working Group reiterates its discussion (paras. 37–38 above)
concerning the requirement under article 9 (2) of the Covenant that anyone who is arrested
is not only informed of the reasons for arrest but also promptly informed of any charges
against them. Those rights were further violated by the Nigerian authorities, in violation of
article 9 (2) of the Covenant.
77.
In the present case, Mr. Kanu was not furnished with an arrest warrant by the Nigerian
authorities, nor was he promptly informed of the grounds for his arrest in Nigeria.
Consequently, the Working Group finds that Mr. Kanu’s continued deprivation of liberty
violates his rights under articles 3 and 9 of the Universal Declaration of Human Rights, article
9 of the Covenant, and principles 2, 4, and 10 of the Body of Principles and constitutes
arbitrary detention under category I.
78.
Turning to the uncontested allegations that following his rendition to Nigeria,
Mr. Kanu remained in pretrial detention with his trial having been scheduled to commence
in January 2022, the Working Group recalls that it is a well-established norm of international
law that pretrial detention should be the exception rather than the rule and should be ordered
for the shortest time possible.21 Put differently, liberty is recognized under article 9 (3) of the
Covenant as the core consideration with detention merely as an exception.22 Therefore,
detention pending trial must be based on an individualized determination that it is reasonable
and necessary for such purposes as to prevent flight, interference with evidence or the
recurrence of crime. 23 Such a determination was not carried out in the present case, in
violation of Mr. Kanu’s rights under article 9 (3) of the Covenant.
79.
Further, in accordance with article 9 (3) of the Covenant, an arrested person is to be
brought before a judge within 48 hours.24 This was not satisfied in the case of Mr. Kanu and
the Working Group therefore finds a violation of articles 3 and 9 of the Universal Declaration
21 Opinions No. 49/2014, para. 23; No. 1/2020, para. 53; No. 8/2020, para. 54; and No. 5/2021, para. 43.
See also Human Rights Committee, general comment No. 35 (2014), para. 38, and A/HRC/19/57,
paras. 48–58.
22 A/HRC/19/57, para. 54.
23 Human Rights Committee, general comment No. 35 (2014), para. 38.
24 Ibid., paras. 32–33.
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12
of Human Rights, article 9 (3) of the Covenant and principles 11, 37 and 38 of the Body of
Principles.
80.
Furthermore, in order to establish that a detention is indeed legal, anyone detained has
the right to challenge the legality of his or her detention before a court, as guaranteed by
article 9 (4) of the Covenant. The Working Group wishes to recall that according to the United
Nations Basic Principles and Guidelines on Remedies and Procedures on the Rights of
Anyone Deprived of their Liberty to Bring Proceedings before a Court, the right to challenge
the lawfulness of detention before a court is a self-standing human right, which is essential
to preserve legality in a democratic society.25 This right, which is in fact a peremptory norm
of international law, applies to all forms of deprivation of liberty, 26 to “all situations of
deprivation of liberty, including not only to detention for purposes of criminal proceedings
but also to situations of detention under administrative and other fields of law, including
military detention, security detention, detention under counter-terrorism measures”. 27
Moreover, it also applies “irrespective of the place of detention or the legal terminology used
in the legislation. Any form of deprivation of liberty on any ground must be subject to
effective oversight and control by the judiciary”.28 This was also denied to Mr. Kanu, thus
violating his right under article 9 (4) of the Covenant.
81.
Finally, turning to Mr. Kanu’s pretrial detention in Nigeria, the Working Group recalls
that according to international human rights law, in particular article 9 (3) of the Covenant,
any person detained while awaiting trial is entitled to trial within a reasonable time, or shall
otherwise be released. Article 14 (3) (c) of the Covenant also guarantees the right of anyone
charged with a criminal offence to be tried without undue delay. In the absence of a
substantive response from the Government of Nigeria, the Working Group finds no legitimate
grounds for the delays in the trial of Mr. Kanu.29
82.
Consequently, the Working Group finds that the Government of Nigeria failed to
establish a legal basis for the detention of Mr. Kanu. His detention is thus arbitrary under
category I. The Working Group wishes once again to underscore the collusion between the
Governments of Kenya and Nigeria in the rendition of Mr. Kanu and reiterates that both
Governments bear joint responsibility for any violations of Mr. Kanu’s rights in Kenya and
Nigeria.
ii.
Category II
83.
The Working Group has already established in its discussion of the detention of
Mr. Kanu in Kenya that he was arrested and detained owing to the peaceful exercise of his
rights (see paras. 52–54 above). The Working Group notes that the source has argued the
same in relation to Mr. Kanu’s arrest, detention and trial proceedings in Nigeria. Notably, the
Government of Nigeria has chosen not to address the substance of these allegations.
84.
The Working Group notes that it is not contested that Mr. Kanu is accused of the crime
of conspiracy to commit a treasonable felony through an agreement with others to be
broadcast from London, with a view to establishing Biafran sovereignty. The source notes
that, while treason consists of “levying war” against Nigeria under Nigerian law, the Federal
Government of Nigeria does not allege any action implicating Mr. Kanu in the contemplation,
planning, or incitement of war against Nigeria. The source argues that Mr. Kanu was in fact
advocating for a peaceful referendum for the establishment of Biafran sovereignty, in
conformity with international and other relevant laws.
85.
Noting the failure of the Government to explain which of Mr. Kanu’s actions
amounted to such criminal acts and how, and observing the lack of any evidence that any of
his actions may in fact amount to such crimes, the Working Group concludes that Mr. Kanu
is in fact being persecuted for the peaceful exercise of his rights, most notably his freedom
of opinion and expression.
25 A/HRC/30/37, paras. 2–3.
26 A/HRC/30/37 at para. 11.
27 Guideline 1.
28 Ibid.
29 See opinions No. 16/2020 and No. 10/2021.
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86.
Similarly to what the Working Group noted in relation to the Government of Kenya,
it reiterates that detention purely due to the peaceful exercise of rights protected by the
Covenant may be arbitrary. 30 The Working Group recalls that freedom of opinion and
expression, as expressed in article 19 of the Covenant, is an indispensable condition for the
full development of the person. It is essential for any society and constitutes the foundation
stone for every free and democratic society.31 It also recalls that freedom of expression
includes the right to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, and that this right includes the expression and receipt of communications of
every form of idea and opinion capable of transmission to others, including political
opinions.32
87.
Similarly, in resolution 12/16, the Human Rights Council called on States to refrain
from imposing restrictions which are not consistent with article 19 (3), including on the
discussion of government policies and political debate; reporting on human rights; engaging
in peaceful demonstrations or political activities, including for peace or democracy; and on
expression of opinion and dissent, religion or belief.33
88.
In the present case, the Government of Nigeria has presented no exceptions permitted
under article 19 (3) of the Covenant, nor is there any evidence to suggest that Mr. Kanu’s
exercise of his right to freedom of opinion and expression was anything but peaceful. In fact,
the Government has chosen not to provide any explanation for the arrest, detention and
subsequent proceedings against Mr. Kanu. In these circumstances, the Working Group
concludes that Mr. Kanu’s detention is thus arbitrary under category II.
iii.
Category III
89.
The source has submitted that Mr. Kanu was denied effective legal representation and
the Government did not address that submission in its response. The Working Group
considers legal representation as being a core facet of the right to a fair trial. Legal assistance
should be available at all stages of criminal proceedings, namely at the pretrial, trial and
appellate stages, to ensure compliance with fair trial guarantees.34 Any denial of access to
lawyers substantially undermines and compromises an accused individual’s capacity to
defend him or herself in any judicial proceedings.
90.
As the Working Group has stated in principle 9 and guideline 8 of the Basic Principles
and Guidelines, persons deprived of their liberty have the right to legal assistance by counsel
of their choice, at any time during their detention, including immediately after the moment
of apprehension, and must be promptly informed of this right upon apprehension. Access to
legal counsel should not be unlawfully or unreasonably restricted.35
91.
Article 14 (3) (b) of the Covenant entitles defendants to adequate time and facilities
for the preparation of their defence and to communicate with counsel of their own choosing.
Defendants must have access to documents and other evidence, including “all materials that
the prosecution plans to offer in court against the accused or that are exculpatory”. It further
requires that defendants “be able to meet their clients in private and to communicate with the
accused in conditions that fully respect the confidentiality of their communications”.36
92.
Recalling Human Rights Committee, general comment No. 32 (2007), a detainee has
the right to have “prompt access” to legal counsel, meaning that a lawyer must be able to
have private communications and meetings with the detainee and be able to attend all the
investigations without interference or restrictions. A detainee also ought to have access to
“effective counsel”. The effectiveness of the legal counsel is fundamentally related to the
principle of equality of arms, as enshrined in article 11 of the Universal Declaration of Human
30 Human Rights Committee, general comment No. 35 (2014), paras. 17 and 53.
31 Human Rights Committee, general comment No. 34 (2011), para. 2.
32 Ibid., para. 11.
33 See also Human Rights Committee, general comment No. 34 (2011).
34 A/HRC/45/16, paras. 51–53. See also the Basic Principles and Guidelines, principle 9 and guideline
8.
35 See also Human Rights Committee, general comment No. 32, para. 34.
36 Ibid., paras. 33–34.
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Rights, which draws on the right of detainees to be afforded the time and facilities necessary
to prepare and present their defence with the counsel of their own choosing.
93.
All of this was denied to Mr. Kanu. In the Working Group’s view, by failing to allow
Mr. Kanu to be represented by lawyers of his choice, including an international counsel,37 the
Government denied Mr. Kanu’s right to legal assistance at all times, which is inherent in the
right to liberty and security of the person, as well as the right to a fair and public hearing by
a competent, independent and impartial tribunal established by law, in accordance with
articles 3, 9, 10 and 11 (1) of the Universal Declaration of Human Rights, article 14 of the
Covenant, principles 15, 17 and 18 of the Body of Principles and paragraphs 1, 5, 7, 8, 21
and 22 of the Basic Principles on the Role of Lawyers.
94.
The Working Group is also disturbed by the source’s report of the treatment of
Mr. Kanu’s lawyers and recalls its jurisprudence emphasizing that such treatment of lawyers
is entirely unacceptable and violates articles 10 and 11 of the Universal Declaration of Human
Rights and article 14 (3) (b) of the Covenant.38 It is the legal and positive duty of the State to
protect everyone on its territory or under its jurisdiction against any human rights violation
and to provide remedy whenever a violation occurs. 39 The Working Group recalls that
principle 9 of the Basic Principles and Guidelines states that legal counsels are to be able to
carry out their functions effectively and independently, free from fear of reprisal, interference,
intimidation, hindrance or harassment.40
95.
The Working Group also considers that Mr. Kanu’s presumption of innocence was
violated, as the Department of State Services surrounded the court complex with an array of
armed forces, creating an atmosphere of intimidation and danger (see para. 9 above), a
submission which the Government has chosen not to contest. The Working Group recalls that
defendants should not be presented to the court in a manner indicating that they may be
dangerous criminals, as this also undermines the presumption of innocence.41 The Working
Group finds a breach of article 14 (2) of the Covenant.
96.
Further, according to the source, and uncontested by the Government, following his
rendition to Nigeria, Mr. Kanu was detained in solitary confinement at the headquarters of
the Department of State Services in Abuja. He is reportedly currently still held in a very small
cell, where he is exposed to daily psychological and mental torture without access to other
inmates or any other person except for the officers of the Department. Mr. Kanu is also
allegedly denied access to reading or writing materials and has been refused access to
professional medical care despite a serious heart ailment. The source reports that Mr. Kanu’s
life is in jeopardy and that he suffers from a medical condition occasioned by gradual
depletion of potassium in his system, which has defied any medical solution given to him
within the Department facilities.
97.
The Working Group is seriously concerned about the treatment to which Mr. Kanu
has been subjected. Especially noting its finding that Mr. Kanu was subjected to
extraordinary rendition as well as his treatment prior to that, the Working Group considers it
unlikely that Mr. Kanu would have been able to effectively assist with and participate in his
own defence during the proceedings against him and that such treatment tainted the
proceedings against him, rendering them inherently unfair and unjust, in violation of article
14 of the Covenant. For all the reasons above, the Working Group finds that the fair trial
rights and procedural guarantees of Mr. Kanu under the Universal Declaration of Human
Rights, the Covenant and other relevant human rights standards, were not observed and that
such violations are of such gravity as to render Mr. Kanu’s detention arbitrary under category
III.
37 Opinion No. 78/2020, para. 55.
38 See opinions No. 14/2017; No. 29/2017; No. 32/2017; No. 34/2017; No. 36/2017; No. 70/2017; No.
28/2018; No. 66/2019 and No. 42/2020. See also A/HRC/45/16, para. 54.
39 See deliberation No. 10.
40 See also the Basic Principles on the Role of Lawyers, paras. 16–22.
41 Opinion No. 59/2020, para. 81.
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iv.
Category V
98.
Mr. Kanu is an activist and the leader of the organization Indigenous People of Biafra,
which he founded in 2012. The source alleges that the Government of Nigeria is targeting
Mr. Kanu owing to his political expression, in particular, due to his membership in a group
politically opposed to the Government on the question of Biafra, his widely published
criticism of the Government and his work with and advocacy for the Indigenous People of
Biafra. The Government has chosen not to address these allegations.
99.
The Working Group finds that Mr. Kanu has indeed been targeted by the Government
as a human rights defender on account of his freedom of opinion and expression, as well as
his position regarding the sovereignty of Biafra. As Mr. Kanu has been targeted on account
of his activism in galvanizing momentum for a referendum on the sovereignty of Biafra, the
Working Group considers that his detention violates articles 2 and 7 of the Universal
Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, and is arbitrary under
category V.
c.
Concluding remarks
100.
The Working Group wishes to record its very serious concern for the well-being of
Mr. Kanu, who, according to the source and uncontested by the Government of Nigeria,
remains in solitary confinement since his arbitrary detention in Nigeria on 29 June 2021. He
has been denied medical treatment and medication for his heart condition. The Working
Group recalls that prolonged solitary confinement in excess of 15 consecutive days is
prohibited under rules 43 (1) (b) and 44 of the Nelson Mandela Rules. The Working Group
is also obliged to remind the Government of Nigeria that in accordance with article 10 of the
Covenant, all persons deprived of their liberty must be treated with humanity and with respect
for the inherent dignity of the human person and that denial of medical assistance constitutes
a violation rules 24, 25, 27 and 30 of the Nelson Mandela Rules in particular.
101.
According to the source, throughout Mr. Kanu’s detention in Kenya and transfer to
Nigeria, no family members knew of his location or were able to gain access to him and Mr.
Kanu was not permitted to contact his family during his detention. These allegations have
not been contested by either Government. The Working Group stresses that, under
international human rights law, all detained and imprisoned individuals have the right to
communicate with and be visited by their families. The right to receive visits applies to all
detainees regardless of the offence of which they are suspected or accused. According to
principle 19 of the Body of Principles, this right can be subject only to conditions and
restrictions that are appropriate to a legitimate aim. Neither Government has argued that the
restrictions placed on Mr. Kanu’s contact with his family conformed with this requirement.
As a result, the Working Group finds that the restrictions placed on Mr. Kanu’s contact with
his family violated his right to contact with the outside world under rules 43 (3) and 58 (1)
of the Nelson Mandela Rules and principles 15 and 19 of the Body of Principles.
102.
Noting the treatment to which Mr. Kanu has been subjected at the hands of both the
Kenyan and Nigerian authorities and his continued solitary confinement, the Working Group
refers this case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment for further consideration.
103.
The Working Group also wishes to re-emphasize its very serious concern over the
apparent collusion between the Governments of Kenya and Nigeria in the present case and
reiterates its findings that both Governments are jointly responsible for the violations of
Mr. Kanu’s rights in both jurisdictions.
104.
The present opinion concerns solely the treatment and rights of Mr. Kanu and is
adopted without any prejudice to the status of Biafra.
Disposition
105.
In the light of the foregoing, the Working Group renders the following opinion:
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In relation to Kenya and Nigeria
The deprivation of liberty of Nwannekaenyi Nnamdi Kenny Okwu-Kanu, being in
contravention of articles 2, 3, 6, 7, 8, 9, 10, 11 and 19 of the Universal Declaration of
Human Rights and articles 2, 9, 13, 14, 16, 19 and 26 of the International Covenant
on Civil and Political Rights, is arbitrary and falls within categories I, II, III and V.
106.
The Working Group requests the Governments of Kenya and Nigeria to take the steps
necessary to remedy the situation of Mr. Kanu without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights.
107.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be for the Government of Nigeria to release Mr. Kanu
immediately and for both Governments to accord him an enforceable right to compensation
and other reparations, in accordance with international law. In the current context of the
coronavirus disease (COVID-19) pandemic and the threat that it poses in places of detention,
the Working Group calls upon the Government of Nigeria to take urgent action to ensure the
immediate unconditional release of Mr. Kanu.
108.
The Working Group urges the two Governments to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Kanu and to take appropriate measures against those responsible for the violation of his rights.
109.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, for appropriate action.
110.
The Working Group requests the Governments to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
111.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Governments to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Kanu has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Kanu;
(c)
Whether an investigation has been conducted into the violation of Mr. Kanu’s
rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Kenya and Nigeria with their international obligations
in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
112.
The Governments of Kenya and Nigeria are invited to inform the Working Group of
any difficulties they may have encountered in implementing the recommendations made in
the present opinion and whether further technical assistance is required, for example through
a visit by the Working Group.
113.
The Working Group requests the source and the Governments of both countries to
provide the above-mentioned information within six months of the date of transmission of
the present opinion. However, the Working Group reserves the right to take its own action in
follow-up to the opinion if new concerns in relation to the case are brought to its attention.
Such action would enable the Working Group to inform the Human Rights Council of
progress made in implementing its recommendations, as well as any failure to take action.
114.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
A/HRC/WGAD/2022/25
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and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.42
[Adopted on 4 April 2022]
42 See Human Rights Council resolution 42/22 paras. 3 and 7.