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A/HRC/WGAD/2024/32

Opinion No. 32/2024 concerning Yahaya Sharif-Aminu (Nigeria)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2024-08-30 · en UN

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

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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

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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,

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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.

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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).

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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.

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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.

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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

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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.

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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.

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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.

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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.