Opinion; Subjects: NIGERIA, 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.24-16621 (E) 240924 240924
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 100th session, 26–30 August 2024
Opinion No. 32/2024 concerning Yahaya Sharif-Aminu (Nigeria)
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 51/8.
2.
In accordance with its methods of work, 1 on 8 March 2024 the Working Group
transmitted to the Government of Nigeria a communication concerning Yahaya
Sharif-Aminu. The Government has not replied to the communication. The State is a party 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,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/32
General Assembly
Distr.: General
24 September 2024
Original: English
A/HRC/WGAD/2024/32
2
GE.24-16621
1.
Submissions
(a)
Communication from the source
4.
Yahaya Sharif-Aminu is a Nigerian Sufi musician and songwriter, whose exact age is
unknown to the source. He is reported to have been approximately 22 years old at the time
of the detention. He usually resides in Kano State, Nigeria.
(i)
Arrest and detention
5.
According to the source, on 23 February 2020, Mr. Sharif-Aminu shared
impressionistic lyrics he had created as two audio messages in the Hausa language in a private
WhatsApp group. Reportedly, the messages expressed his beliefs as a member of a religious
group that holds a Senegalese cleric, Shaykh Ibrahim Niasse, in high regard. The source
explains that some individuals perceived the messages as blasphemous and took offence at
them. At the beginning of March 2020, a large group of people reportedly met at
Mr. Sharif-Aminu’s house and set it on fire and Mr. Sharif-Aminu went into hiding.
Subsequently, a large group of people reportedly assembled outside of the Kano State Hisbah
Corps headquarters demanding that action be taken against Mr. Sharif-Aminu.
6.
In or around the beginning of March 2020, the Kano State Hisbah police arrived as a
large crowd had again assembled around Mr. Sharif-Aminu’s home, where he was hiding.
Many in the crowd were calling for Mr. Sharif-Aminu’s death. The crowd reportedly turned
into a mob that began throwing stones at the property and looting it. The police reportedly
arrested Mr. Sharif-Aminu when family members turned him over before the mob was able
to kill him. According to the source, other family members fled and some were injured.
7.
The source reports that it is not aware as to whether the police officers had a warrant.
It explains that Mr. Sharif-Aminu’s lawyers have not seen a warrant and that the police and
court records make no mention of a warrant. It further notes that it is common for the Hisbah
police to make arrests without a warrant.
8.
The Governor and the Attorney General of Kano State reportedly charged
Mr. Sharif-Aminu with blasphemy under section 382 (b) of the Kano State Sharia Penal Code
of 2000, which makes it illegal for a Muslim to insult the Qur’an or any of its prophets and
holds those convicted liable to the death penalty. According to the source, Mr. Sharif-Aminu
was not presented to a judge until his arraignment hearing on 20 March 2020.
9.
The trial against Mr. Sharif-Aminu reportedly began on 20 March 2020. During the
trial, he admitted to creating the messages at issue and, as a result, the Hausawa Filin Hockey
Upper-Sharia Court convicted him on 10 August 2020 of violating section 382 (b) of the
Kano State Sharia Penal Code of 2000. He was sentenced to death by hanging. The source
reports that the court found that the following two statements constituted an offence under
section 382 (b): “there is no great pagan like Prophet Muhammad, he is a complete pager [sic]
he brought an unforgivable sin to the world” and “I will not hold prophet Muhammad and
leave Inyass [sic]”. At the trial, Mr. Sharif-Aminu reportedly sought leniency, stating that the
statements were a mistake. The trial court allegedly denied the request, stating that there
could be no excuse on the basis of a mistake in cases of blasphemy against the Prophet.
Shortly thereafter, the Governor of Kano State reportedly said that he would not hesitate to
sign the execution order.
10.
According to the source, Mr. Sharif-Aminu was denied legal representation during his
trial and was held incommunicado from his family members from the time of his arrest until
3 September 2020, when he filed his appeal. The source reports that, on 28 April 2020, the
trial court judge requested that a letter be sent to the Legal Aid Council in Kano to obtain
legal representation for Mr. Sharif-Aminu. On 24 June 2020, the prosecutor informed the
court that they had not received a reply. Rather than continue to attempt to obtain a lawyer
for Mr. Sharif-Aminu, the court reportedly carried on with the trial and convicted him.
Allegedly, Mr. Sharif-Aminu was first able to speak directly to his lawyer on 7 November
2020, after he had been transferred to Keffi prison.
11.
On 3 September 2020, Mr. Sharif-Aminu reportedly appealed the order to the High
Court of Kano State on the grounds of procedural irregularities, including the denial of legal
A/HRC/WGAD/2024/32
GE.24-16621
3
representation, and challenging the constitutionality of section 382 (b) on various grounds,
including freedom of expression and freedom of religion or belief. On 21 January 2021, the
High Court ordered a retrial rather than a dismissal on the grounds that procedural legislation
in Kano State required that the accused in a capital punishment case be represented even if
the defendant refused legal representation. The source notes that Mr. Sharif-Aminu never
refused a lawyer.
12.
On 25 January 2021, Mr. Sharif-Aminu filed an appeal of the retrial order before the
Kano State Court of Appeal, arguing that the case should be dismissed based on the
procedural irregularities and that section 382 (b) was unconstitutional. The source notes that
Mr. Sharif-Aminu was represented during his appeal. On 17 August 2022, a three-judge panel
of the Court of Appeal upheld the retrial order, with all three judges finding that the law was
constitutional and two of the three judges finding that a retrial was warranted. The source
notes that one of the judges dissented, reasoning that the procedural irregularities warranted
a dismissal.
13.
On 9 November 2022, Mr. Sharif-Aminu filed an appeal before the Supreme Court of
Nigeria, arguing that the case should be dismissed based on procedural irregularities,
challenging the constitutionality of section 382 (b) and arguing that section 382 (b) was in
violation of the international law to which Nigeria is bound. The source notes that, while a
case number has been assigned by the Supreme Court, no hearing date has been set as yet.
Mr. Sharif-Aminu’s briefs of argument were filed with the Supreme Court on 18 January
2023. A letter requesting permission for amici curiae briefs to be allowed to be submitted in
favour of Mr. Sharif-Aminu was reportedly sent to the Office of the Chief Justice of the
Supreme Court on 23 January 2023 and received by the Office on 31 January 2023 but a
response has yet to be received.
(ii)
Analysis of violations
14.
The source argues that the detention of Mr. Sharif-Aminu is arbitrary under
categories I, II and III.
a.
Category I
15.
According to the source, Mr. Sharif-Aminu was prosecuted and detained on the basis
of section 382 (b) of the Kano State Sharia Penal Code of 2000. The source notes that the
Nigerian courts that reviewed his initial conviction and sentence agreed that his right to a fair
trial had been violated insofar as he was tried and convicted to death without a lawyer. The
source adds that, despite that finding, the case against Mr. Sharif-Aminu was ordered to be
retried rather than dismissed, which could lead to another conviction and the execution of
Mr. Sharif-Aminu. The source notes that Mr. Sharif-Aminu’s lawyer is arguing before the
Supreme Court that the procedural irregularities during the trial court proceedings warrant a
dismissal rather than a retrial.
16.
The source explains that, while the courts have recognized that Mr. Sharif-Aminu’s
procedural right to a lawyer was violated at the trial court level, they have so far ruled that
section 382 (b) does not violate the Constitution of Nigeria. The source argues that
section 382 (b) violates the Constitution, specifically, but not limited to, sections 38 and 39,
which, respectively, guarantee the rights to freedom of religion or belief and freedom of
expression, and section 34, which guarantees the right of everyone to be treated with dignity
and prohibits inhuman and degrading treatment. The source argues that the application of the
death penalty is disproportionate with respect to the crime of which Mr. Sharif-Aminu is
accused and is contrary to section 34 of the Constitution.
17.
Furthermore, the source notes that section 10 of the Constitution prohibits the federal
Government or any state government from adopting a state religion and section 19 requires
that the Government act in conformity with international law and treaty obligations. The
source argues that the proceedings against Mr. Sharif-Aminu for having insulted the Prophet
are contrary to those provisions.
18.
The source also submits that the law on the basis of which Mr. Sharif-Aminu was
charged goes beyond the Constitutional permission for the application of Sharia law insofar
as Mr. Sharif-Aminu is accused of a criminal matter, while sections 6 (5) (f) and (g), 237,
A/HRC/WGAD/2024/32
4
GE.24-16621
240, 244, 260–264 and 275–279 of the Constitution allow for the application of Sharia law
only for personal matters and limit the jurisdiction of the Sharia Court of Appeal to such
matters. The source notes that the constitutionality of section 382 (b) and other similar
blasphemy laws has not previously been determined by the Supreme Court.
b.
Category II
19.
As a preliminary matter, the source notes that, on 18 September 2020, various special
procedure mandate holders, including the Working Group on Arbitrary Detention, sent a
communication2 to the Government of Nigeria regarding Mr. Sharif-Aminu’s case.
20.
The source argues that the detention of Mr. Sharif-Aminu is arbitrary insofar as it
violates articles 6, 18, 19, 26 and 27 of the Covenant and article 15 of the International
Covenant on Economic, Social and Cultural Rights.
21.
Firstly, the source submits that the ongoing prosecution and detention of
Mr. Sharif-Aminu is contrary to article 18 of the Covenant, which protects the right to
freedom of religion and belief. It notes that article 18 (3) allows for limitations on the freedom
to manifest one’s religion or beliefs only under strict conditions, namely that such limitations
be prescribed by law and necessary to protect public safety, order, health or morals or the
fundamental rights and freedoms of others. The source argues that the criminalization of
blasphemy against the Qur’an or its prophets is in no way necessary for the protection of
public safety, order, health or morals or the fundamental rights and freedoms of others. It
underlines that, in its general comment No. 22 (1993), the Human Rights Committee noted
that any restrictions must be non-discriminatory and must not be applied in a manner that
would vitiate the rights guaranteed in article 18 of the Covenant.3
22.
The source argues that, in the case at hand, Mr. Sharif-Aminu’s statements peacefully
expressed his beliefs as a person belonging to a religious minority in the region and that the
application of section 382 (b) to Mr. Sharif-Aminu is discriminatory against him de facto and
because of the inherent vagueness of what constitutes an insult under section 382 (b). The
source submits that section 382 (b) relies on enforcing a particular interpretation of Islam and
that its application to Muslim individuals who do not agree with or express opinions contrary
to such beliefs vitiates the rights guaranteed under article 18 of the Covenant. It underlines
that, according to the Human Rights Committee, limitations on the freedom to manifest a
religion or belief for the purpose of protecting morals must be based on principles not
deriving exclusively from a single tradition. According to the source, the very terms of
section 382 (b) are derived from a single tradition and a particular interpretation of Islam.
The source underlines that, in their letter to the Government of Nigeria, the special procedure
mandate holders stated that no one should be prosecuted for the mere peaceful manifestation
or expression of his or her opinions or beliefs. According to the source, justifying the
restrictions on freedom of religion on the basis of safeguarding public order would place the
burden of violence caused by accusations of blasphemy on the victims of the violence rather
than the perpetrators, even outside of the context of incitement.
23.
Finally, the source points to related provisions of the Kano State Sharia Penal Code,
namely section 382 (a) (religious insult and exciting contempt of any religion), section 383
(defiling a place of worship), section 384 (disturbing a religious assembly) and section 385
(trespassing on a place of worship or burial). In this regard, the source notes that far lesser
penalties of imprisonment of one to two years are envisioned for offences relating to
“religious insult”, which it argues highlights the disproportionality and lack of necessity of
the provisions of section 382 (b). It adds that only the prohibition on insulting the Qur’an or
its prophets under section 382 (b) carries the death penalty.
24.
Secondly, the source argues that the ongoing prosecution and detention of
Mr. Sharif-Aminu violate article 19 of the Covenant, which protects the right to freedom of
opinion and expression. It notes that article 19 (3) of the Covenant allows for the same
restrictions as article 18, in addition to restrictions relating to the protection of national
2 See communication NGA 4/2020. All communications cited in the present report are available at
https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
3 Human Rights Committee, general comment No. 22 (1993), para. 8.
A/HRC/WGAD/2024/32
GE.24-16621
5
security. The source submits that, similarly to its analysis concerning article 18, the
restrictions on Mr. Sharif-Aminu’s right to freedom of expression and opinion fall outside
the permissible scope under article 19 (3) of the Covenant. It points to general comment
No. 34 (2011) of the Human Rights Committee, in which the Committee noted that article 19
embraced even expression that may be regarded as deeply offensive, and that any restriction
may not put in jeopardy the right itself.4 The Human Rights Committee further stated that
States should put in place effective measures to protect against attacks aimed at silencing
those exercising their right to freedom of expression, that prohibitions of displays of lack of
respect for a religion or other belief system, including blasphemy laws, were incompatible
with the Covenant, except in the specific circumstances envisaged in article 20 (2) of the
Covenant and that it would be impermissible for any such laws to discriminate in favour of
or against one or certain religions or belief systems, or their adherents, over another.5 The
source argues that the mob attack on Mr. Sharif-Aminu’s house and the fact that the Kano
State government acceded to the demands of that group that he be prosecuted illustrate the
government’s failure to protect Mr. Sharif Aminu from attacks aimed at silencing his peaceful
expression and will likely contribute to further such attacks against other individuals.
25.
In addition, the source argues that Mr. Sharif-Aminu’s peaceful expression of his
beliefs, even if offensive to others, cannot reasonably be argued to rise to the level of
“advocacy of hatred that constitutes incitement to discrimination, hostility or violence,”
particularly under the high threshold of the Rabat Plan of Action on the prohibition of
advocacy of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence. It notes that the Rabat Plan of Action requires a specific intent to incite,
so that even negligence or recklessness is not sufficient. The source argues that
Mr. Sharif-Aminu had no intent to incite and that his statements merely expressed his beliefs
peacefully in the context of music lyrics, without his having any kind of prominent status and
with little dissemination on his part and little likelihood of harm solely from his statements.
The source concludes that under the Rabat Plan of Action, Mr. Sharif-Aminu’s actions fall
within his right to freely express himself. It further notes the calls in the Rabat Plan of Action
itself for the repeal of blasphemy laws. 6 According to the source, section 382 (b)
discriminates in favour of one interpretation of Islam and has a much more severe penalty
than other religious insult laws that apply more broadly in Nigeria and that usually carry a
one- or two-year sentence. In this regard, the source recalls that, in accordance with general
comment No. 34 (2011), it is not permissible for prohibitions to be used to prevent or punish
criticism of religious leaders or commentary on religious doctrine and tenets of faith. 7
According to the source, Mr. Sharif-Aminu was punished precisely because of his
commentary on religious doctrine and tenets of faith.
26.
The source recalls that the Working Group has previously found that detention based
on the application of a death penalty blasphemy law is contrary to articles 18 and 19.8 The
source argues that, similarly, the Working Group should find that the detention of
Mr. Sharif-Aminu violates articles 18 and 19 of the Covenant. It adds that other international
bodies have called for the immediate release of Mr. Sharif-Aminu and have recognized the
Kano State death penalty blasphemy law as contrary to the rights to freedom of religion or
belief and freedom of expression as enshrined in the Covenant. In particular, it points to the
20 April 2023 urgency resolution passed by the European Parliament regarding the
imposition of the death penalty against Mr. Sharif-Aminu for blasphemy.9
27.
Thirdly, the source argues that the ongoing prosecution and detention of
Mr. Sharif-Aminu violate article 26 of the Covenant, which prohibits discrimination on the
basis of religion, among other categories. According to the source, section 382 (b) is
inherently discriminatory as it puts any Muslim who expresses a belief contrary to the
prevailing interpretation of Islam at risk of the death penalty. The source also argues that
section 382 (b) is discriminatory as applied to Mr. Sharif-Aminu as he is a member of a
4 Human Rights Committee, general comment No. 34 (2011), paras. 11 and 21.
5 Ibid., paras. 23 and 48.
6 Rabat Plan of Action, para. 25.
7 Human Rights Committee, general comment No. 34 (2011), para. 48.
8 Decision No. 10/1996 and opinion No. 35/2017.
9 European Parliament, resolution 2023/2650 (RSP).
A/HRC/WGAD/2024/32
6
GE.24-16621
minority sect of Sufi Islam and expressed beliefs and opinions relating to that minority’s
beliefs. Furthermore, it is submitted that section 382 (b) violates article 26 of the Covenant
insofar as section 382 (b) imposes the death penalty on minority Muslims who express views
contrary to the prevailing interpretation of Islam by treating them far more harshly than the
way non-Muslims are treated under the Nigerian Criminal Code, which imposes, under
section 204, a two-year sentence of imprisonment for insulting a religion.
28.
Fourthly, the source argues that the detention of Mr. Sharif-Aminu violates article 27
of the Covenant, which provides for protections for ethnic, religious and linguistic minorities.
The source notes that Mr. Sharif-Aminu is a member of a religious minority in Kano State
and is being punished for participating in its culture by creating song lyrics about his religious
beliefs and for allegedly professing those beliefs. According to the source, the failure of the
authorities of Kano State and of Nigeria to prosecute any members of the group of individuals
who attacked Mr. Sharif-Aminu’s house is evidence that he and his religious minority
community have been denied the protection guaranteed under article 27 of the Covenant. The
source notes that other Muslim Sufis have been prosecuted in Kano State under the same
blasphemy law.
29.
Fifthly, the source submits that the ongoing prosecution and detention of
Mr. Sharif-Aminu violate article 6 of the Covenant, which requires that the death penalty be
imposed only for the most serious crimes. The source argues that the peaceful expression of
a religious belief cannot be considered among the “most serious crimes” and, in reality, does
not constitute a crime at all. The source points to the aforementioned provisions of national
law that punish religious insults with imprisonment of one to two years, and argues that this
implicitly recognizes that an alleged religious insult cannot be considered to be among the
“most serious crimes”. It reiterates that the death penalty is imposed only for insulting the
Qur’an or its prophets and points to general comment No. 36 (2018) of the Human Rights
Committee, in which the Committee noted that deprivation of life is, as a rule, arbitrary where
it is inconsistent with international law or domestic law, and that the death penalty should be
restricted to crimes of extreme gravity, involving intentional killing.10 In its general comment
No. 36 (2018), the Committee further stated that under no circumstances could the death
penalty ever be applied as a sanction against conduct whose very criminalization violated the
Covenant, including apostasy, or in a discriminatory manner against religious, racial or ethnic
minorities.11 The source notes that the so-called crime of apostasy is very similar to that of
section 382 (b), which prohibits blasphemy against the Qur’an or its prophets. It adds that
Mr. Sharif-Aminu’s beliefs constitute a minority religious belief in Kano State.
30.
The source further explains that, in its general comment No. 6 (1982),12 which was
replaced by general comment No. 36 (2018), the Human Rights Committee noted a positive
obligation for States to repeal the death penalty for all but the most serious crimes, which the
source argues Nigeria and Kano State failed to do. Lastly, the source submits that the
mandatory death penalty provided for under section 382 (b), and reflected by the trial court’s
refusal to consider lesser penalties, also violates article 6 of the Covenant. In this regard, it
cites the Human Rights Committee’s finding that, in circumstances where the death penalty
is imposed without any possibility of taking into account the defendant’s personal
circumstances or the circumstances of the particular offence, the automatic and mandatory
imposition of the death penalty constitutes an arbitrary deprivation of life, in violation of
article 6.13
31.
Finally, the source recalls that, in their 28 September 2020 communication to the
Government of Nigeria, special procedure mandate holders noted that the prosecution of
Mr. Sharif-Aminu may violate article 15 of the International Covenant on Economic, Social
and Cultural rights insofar as Mr. Sharif-Aminu’s statements were lyrics and constituted
artistic expression.
10 Human Rights Committee, general comment No. 36 (2018), paras. 12 and 35.
11 Ibid., para. 44.
12 The source refers to paragraph 6 of general comment No. 6 (1982).
13 CCPR/C/82/D/1110/2002, para. 5.2.
A/HRC/WGAD/2024/32
GE.24-16621
7
c.
Category III
32.
According to the source, the detention of Mr. Sharif-Aminu is arbitrary under
category III as it violates articles 9 and 14 of the Covenant.
33.
The source first submits that the detention of Mr. Sharif-Aminu violates article 9 of
the Covenant, which prohibits arbitrary detentions. It underlines general comment No. 35
(2014) of the Human Rights Committee, in which the Committee noted that arrest or
detention as punishment for the legitimate exercise of rights guaranteed by the Covenant is
arbitrary.14 According to the source, Mr. Sharif-Aminu was prosecuted and detained for
having exercised rights protected by the Covenant, as demonstrated under category II.
34.
Furthermore, the source argues that the rights of Mr. Sharif-Aminu under article 14
of the Covenant were violated as he did not have access to legal counsel, despite facing the
death penalty. The source underlines that the Nigerian court that reviewed the trial
proceedings agreed and overturned his conviction, ordering a retrial.
35.
According to the source, the manner in which Mr. Sharif-Aminu was arrested, the
violence of the group of individuals who gathered around his house and the pressure on the
government that led to Mr. Sharif-Aminu’s arrest illustrate that judges and prosecutors may
have been influenced by the fear that violence might ensue if Mr. Sharif-Aminu were released
and the charges dropped.
(b)
Response from the Government
36.
On 8 March 2024 the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure. The Working Group requested
the Government to provide, by 7 May 2024, detailed information about the current situation
of Mr. Sharif-Aminu and to clarify the legal provisions justifying his continued detention and
its compatibility with the obligations of Nigeria under international human rights law and, in
particular, with regard to the treaties ratified by the State. Moreover, the Working Group
called upon the Government of Nigeria to ensure his physical and mental integrity.
37.
The Working Group regrets that it did not receive a response from the Government to
its communication, nor did the Government request an extension of the time limit for its reply,
as provided for in paragraph 16 of the Working Group’s methods of work.
2.
Discussion
38.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
39.
In determining whether Mr. Sharif-Aminu’s detention is arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal 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.15 In the present case, the Government has chosen not to
challenge the prima facie credible allegations made by the source.
40.
The Working Group reaffirms that States have the obligation to respect, protect and
fulfil all human rights and fundamental freedoms, including liberty of person, and that any
national law allowing deprivation of liberty should be made and implemented in conformity
with the relevant international standards set forth in the Universal Declaration of Human
Rights, the Covenant and other applicable international and regional instruments.
Consequently, even if the detention is in conformity with national legislation, regulations and
practices, the Working Group is entitled and obliged to assess the circumstances of the
detention and the law itself to determine whether such detention is also consistent with the
relevant provisions of international human rights law.
14 Human Rights Committee, general comment No. 35 (2014), para. 17.
15 A/HRC/19/57, para. 68.
A/HRC/WGAD/2024/32
8
GE.24-16621
41.
The source argues that the detention of Mr. Sharif-Aminu is arbitrary under
categories I, II and III.
(a)
Category I
42.
The source alleges that Mr. Sharif-Aminu was prosecuted and detained on the basis
of section 382 (b) of the Kano State Sharia Penal Code of 2000, which it argues violates
sections 38 and 39 of the Constitution, which, respectively, guarantee the rights to freedom
of religion or belief and freedom of expression, and section 34, which guarantees the right of
everyone to be treated with dignity and prohibits inhuman and degrading treatment. The
source further alleges that Mr. Sharif-Aminu’s procedural right to a lawyer was violated and
that the application of the death penalty is disproportionate with respect to the crime that
Mr. Sharif-Aminu is accused of and is contrary to section 34 of the Constitution. Those
allegations will be addressed under categories II and III.
43.
The source claims that Mr. Sharif-Aminu was held incommunicado from his family
members from the time of his arrest until 3 September 2020, when he filed his appeal. It
further alleges that Mr. Sharif-Aminu was arrested in or around the beginning of March 2020
and was not brought before a judge until his trial began on 20 March 2020. The Government
chose not to rebut those allegations, although it was provided the opportunity to do so.
44.
Article 9 (3) of the Covenant requires that anyone arrested or detained on a criminal
charge be brought promptly before a judge or other officer authorized by law to exercise
judicial power. As the Human Rights Committee has noted, 48 hours is ordinarily sufficient
to satisfy the requirement of bringing a detainee “promptly” before a judge or other officer
authorized by law following his or her arrest; any longer delay must remain absolutely
exceptional and be justified under the circumstances.16
45.
The Working Group recalls that holding persons incommunicado prevents prompt
presentation before a judge, as required by article 9 (3) of the Covenant,17 and violates the
right to challenge the lawfulness of the detention before a court, guaranteed by article 9 (4).18
Judicial oversight of any detention is a central safeguard for personal liberty19 and is critical
for ensuring that detention has a legitimate basis. Moreover, prohibiting contact with the
outside world may violate rule 58 of the United Nations Standard Minimum Rules for the
Treatment of Prisoners (the Nelson Mandela Rules)20 and principles 15, 16 (1) and 19 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
46.
In the light of the source’s allegations, unrebutted by the Government, the Working
Group finds that the authorities violated Mr. Sharif-Aminu’s rights under article 9 (3) and (4)
of the Covenant. Given that Mr. Sharif-Aminu was unable to challenge the legality of his
detention, his rights to an effective remedy under article 8 of the Universal Declaration of
Human Rights and article 2 (3) of the Covenant were also violated.
47.
In the light of the above, the Working Group finds that the detention of
Mr. Sharif-Aminu is contrary to articles 3 and 9 of the Universal Declaration of Human
Rights and article 9 of the Covenant. His detention is thus arbitrary under category I.
(b)
Category II
48.
The source argues that the detention of Mr. Sharif-Aminu is arbitrary insofar as it
violates articles 18 and 19 of the Covenant, which protect the rights to freedom of religion
and belief and to freedom of opinion and expression. It notes that article 19 (3) of the
Covenant allows for the same restrictions as article 18, in addition to restrictions relating to
the protection of national security, but that none of Mr. Sharif-Aminu’s statements fall within
16 Human Rights Committee, general comment No. 35 (2014), paras. 32 and 33.
17 Ibid., para. 35.
18 See opinions No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019, No. 25/2021 and No. 34/2023.
19 A/HRC/30/37, para. 3.
20 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
A/HRC/WGAD/2024/32
GE.24-16621
9
those permissible restrictions. The Government chose not to rebut the allegations of the
source although it was provided the opportunity to do so.
49.
The Working Group recalls that the obligation to respect freedom of conscience and
religion derives from article 18 of the Covenant.21 As interpreted by the Human Rights
Committee in its general comment No. 22 (1993), as a consequence of freedom of religion,
in conjunction with freedom of thought and belief (art. 18) and freedom of expression (art.19),
everyone may express their opinion in public or private, including on matters of religion. The
Working Group stresses that Governments must respect, protect and fulfil people’s right to
practise their religion, including religions that are not in accordance with its official policy,
and to think and manifest personal convictions at odds with its official ideology, under the
peremptory norms (jus cogens) of customary international law.22
50.
The Working Group also recalls that, under article 19 (2) of the Covenant, everyone
has the right to freedom of expression and that this right includes freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing
or in print, in the form of art, or through any other media of their choice. That right includes
political discourse, commentary on public affairs, discussion of human rights and journalism.
It protects the holding and expression of opinions, including those that are critical of, or not
in line with, government policy.23
51.
The Working Group notes the source’s uncontested allegations that Mr. Sharif-Aminu
was charged with blasphemy under section 382 (b) of the Kano State Sharia Penal Code of
2000, which makes it illegal for a Muslim to insult the Qur’an or any of its prophets and holds
those convicted liable to the death penalty. The source adds that Mr. Sharif-Aminu’s
statements, through music lyrics, peacefully expressed his beliefs as a person belonging to a
religious minority.
52.
Noting the absence of any response from the Government refuting the source’s claims,
the Working Group is of the view that Mr. Sharif-Aminu’s conduct fell within the right to
freedom of opinion and expression protected under article 19 of the Universal Declaration of
Human Rights and article 19 of the Covenant, as well as the freedom to manifest one’s
religion or belief in teaching, practice, worship and observance enshrined in article 18 of the
Universal Declaration on Human Rights and article 18 of the Covenant. There is nothing to
suggest that the permissible restrictions on the rights set out in articles 18 (3) and 19 (3) of
the Covenant would apply in the present case. The Working Group is not convinced that
arresting, detaining and prosecuting Mr. Sharif-Aminu was necessary to protect a legitimate
interest under those provisions.
53.
The Working Group considers that Mr. Sharif-Aminu was detained for exercising his
rights protected under articles 18 and 19 of the Universal Declaration of Human Rights and
articles 18 and 19 of the Covenant. The Working Group therefore finds that the deprivation
of Mr. Sharif-Aminu’s liberty is arbitrary under category II.
54.
The Working Group notes that section 382 (b) of the Kano State Sharia Penal Code
imposes the death penalty, to which Mr. Sharif-Aminu was sentenced. The Working Group
wishes to emphasize that the imposition of a lengthy prison sentence can have a chilling
effect on the exercise of other human rights, including freedom of expression, and requests
the Government to avoid unduly infringing on the rights of its citizens in this way.24 The
Working Group recalls general comment No. 34 (2011) of the Human Rights Committee, in
which the Committee stated that blasphemy laws were incompatible with the Covenant
except in the specific circumstances envisaged in article 20 (2) of the Covenant.25 The
Working Group further emphasizes that, in accordance with general comment No. 36 (2018)
of the Human Rights Committee, States that have not yet abolished the death penalty may
impose it only for the most serious crimes, which pertain only to crimes of extreme gravity
21 Opinion No. 7/2023, para. 70.
22 Opinions No. 76/2017, para. 62; No. 88/2017, para. 32; No. 94/2017, para. 59; No. 25/2022, para. 53;
and No. 9/2024, para. 78.
23 Opinions No. 9/2019, para. 55; and No. 79/2017, para 55.
24 Opinion no. 72/2023, para. 76.
25 Human Rights Committee, general comment No. 34 (2011), para. 48.
A/HRC/WGAD/2024/32
10
GE.24-16621
involving intentional killing.26 States parties are under an obligation to review their criminal
laws so as to ensure that the death penalty is not imposed for crimes that do not qualify as the
most serious crimes.27
55.
The Working Group refers the present case to the Special Rapporteur on freedom of
religion or belief.
(c)
Category III
56.
Given the Working Group’s findings under category II, no trial should have taken
place. A trial did take place, however, and Mr. Sharif-Aminu was sentenced to death by
hanging. The Working Group notes that, having found that Mr. Sharif-Aminu’s fair trial
rights were violated insofar as he was not afforded legal assistance, the High Court of Kano
State ordered a retrial on 21 January 2021. On 17 August 2022, a three-judge panel of the
Court of Appeal reportedly upheld the retrial order. Accordingly, Mr. Sharif-Aminu may still
be convicted and sentenced to death.
57.
The source has alleged that Mr. Sharif-Aminu was denied legal representation during
his trial and was held incommunicado from his family members from the time of his arrest
until 3 September 2020, when he filed his appeal. According to the source, on 28 April 2020,
the trial court judge requested that a letter be sent to the Legal Aid Counsel to obtain legal
representation for Mr. Sharif-Aminu. Having not received an answer, however, the court
proceeded with the trial and convicted him. Mr. Sharif-Aminu was able to speak directly to
his lawyer only on 7 November 2020, after he had been transferred to Keffi prison.
58.
Article 14 (3) (b) and (d) of the Covenant guarantees the right of defendants to have
adequate time and facilities for the preparation of their defence, to communicate with counsel
of their own choosing and to benefit from legal assistance during trial. The Working Group
reiterates that legal assistance is a core facet of the right to a fair trial and should be available
at all stages of criminal proceedings, namely, the pretrial, trial and appellate stages, to ensure
compliance with fair trial guarantees. Any unjustified denial of access to lawyers
substantially undermines and compromises accused individuals’ capacity to defend
themselves in any judicial proceedings. Principle 18 (3) of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment and rule 61 (1) of
the Nelson Mandela Rules stipulate that defendants must have access to legal counsel without
delay. As the Working Group has stated, principle 9 and guideline 8 of 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 entitle persons deprived of
their liberty to legal assistance by counsel of their choice, at any time during their detention,
including immediately after apprehension, and require that individuals be promptly informed
of that right upon apprehension.
59.
According to the unrebutted allegations of the source, the High Court of Kano State
ordered Mr. Sharif-Aminu’s retrial on the grounds that he had been denied legal assistance
and that his trial had been, therefore, unfair. Recalling its findings above that
Mr. Sharif-Aminu was held incommunicado from his arrest until the beginning of his trial on
20 March 2020, the Working Group considers that he was deprived of access to a lawyer
immediately after his arrest. In the light of this, the Working Group agrees that
Mr. Sharif-Aminu’s right to a fair trial was violated. The Working Group emphasizes that, in
cases involving capital punishment, it is axiomatic that the accused must be effectively
assisted by a lawyer at all stages of the proceedings.28
60.
Noting that the source’s allegations of fair trial rights violations pertain to
Mr. Sharif-Aminu’s first trial and that a retrial was subsequently ordered, the Working Group
does not have sufficient information to make a determination on the fairness of
Mr. Sharif-Aminu’s ongoing trial. It reiterates, however, that in the light of its finding under
category II, Mr. Sharif-Aminu should not be tried.
26 Human Rights Committee, general comment No. 36 (2018), paras. 33 and 35.
27 Ibid., para. 35.
28 Human Rights Committee, general comment No. 32 (2007), para. 38.
A/HRC/WGAD/2024/32
GE.24-16621
11
(d)
Category V
61.
The source argues that the ongoing prosecution and detention of Mr. Sharif-Aminu
violate article 26 of the Covenant insofar as section 382 (b) is inherently discriminatory in
that it puts any Muslim person who expresses a belief contrary to the prevailing interpretation
of Islam at risk of the death penalty. The source also argues that section 382 (b) is
discriminatory as applied to Mr. Sharif-Aminu as he is a member of a minority sect of Sufi
Islam and expressed beliefs and opinions relating to that minority’s beliefs. Furthermore, it
is submitted that section 382 (b) violates article 26 of the Covenant insofar as section 382 (b)
imposes the death penalty against minority Muslims who express views contrary to the
prevailing interpretation of Islam by treating them far more harshly than the way
non-Muslims are treated under the Nigerian Criminal Code, which imposes, under
section 204, a two-year sentence of imprisonment for insulting a religion.
62.
The Working Group recalls that deprivation of liberty is arbitrary when it 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 or any other status, that aims towards or can result in
ignoring the equality of human beings. In the discussion above concerning category II, the
Working Group established that Mr. Sharif-Aminu was detained for having peacefully
exercised his rights guaranteed under international law. The Working Group recalls that when
it is established that the deprivation of liberty resulted from the active exercise of civil and
political rights, there is a strong presumption that the deprivation of liberty constitutes a
violation of international law on the grounds of discrimination.29
63.
The Working Group further notes the source’s allegation, unrefuted by the
Government, that other Muslim Sufis have been prosecuted under the same blasphemy law
in Kano State. The Working Group also takes note of the concluding observations on Nigeria
of the Human Rights Committee, in which the Committee expressed concerns about
allegations of discrimination against religious minorities.30 The Working Group reiterates the
concerns previously raised by special procedure mandate holders, including the Working
Group itself, regarding the use of blasphemy laws in Nigeria targeting religious minorities in
particular.31
64.
In view of the above, and noting the absence of any response from the Government
contesting the allegations formulated by the source, the Working Group concludes that
Mr. Sharif-Aminu was detained on discriminatory grounds based on his beliefs as a member
of a religious minority, in violation of articles 2 and 7 of the Universal Declaration of Human
Rights and articles 2 (1) and 26 of the Covenant, and that his deprivation of liberty is arbitrary
under category V.
3.
Disposition
65.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Yahaya Sharif-Aminu being in contravention of
articles 2, 3, 7, 8, 9, 18 and 19 of the Universal Declaration of Human Rights and
articles 2, 9, 18, 19 and 26 of the International Covenant on Civil and Political Rights,
is arbitrary and falls within categories I, II and V.
66.
The Working Group requests the Government of Nigeria to take the steps necessary
to remedy the situation of Mr. Sharif-Aminu 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.
67.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Sharif-Aminu immediately and accord
29 Opinions No. 88/2017, para. 43; No. 13/2018, para. 34; No. 59/2019, para. 79; No. 36/2020, para. 75;
No. 62/2020, para. 74; No. 75/2022, para. 91; No. 65/2023, para. 75; and No. 9/2024, para. 88.
30 CCPR/C/NGA/CO/2, para. 44.
31 See communications NGA 4/2020 and NGA 1/2023; and opinion No. 9/2024.
A/HRC/WGAD/2024/32
12
GE.24-16621
him an enforceable right to compensation and other reparations, in accordance with
international law.
68.
The Working Group urges the Government to ensure a full and independent
investigation into the circumstances surrounding the arbitrary detention of Mr. Sharif-Aminu
and to take appropriate measures against those responsible for the violation of his rights.
69.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on freedom of religion or belief for appropriate
action.
70.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
71.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Sharif-Aminu has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to
Mr. Sharif-Aminu;
(c)
Whether an investigation has been conducted into the violation of
Mr. Sharif-Aminu’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 Nigeria with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
72.
The Government is invited to inform the Working Group of any difficulties it 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.
73.
The Working Group requests the source and the Government 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 of any failure to take action.
74.
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
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.32
[Adopted on 30 August 2024]
32 Human Rights Council resolution 51/8, paras. 6 and 9.