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.24-07155 (E) 050624 050624
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-ninth session, 18–27 March 2024
Opinion No. 9/2024 concerning Mubarak Bala (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 13 July 2023 the Working Group
transmitted to the Government of Nigeria a communication concerning Mubarak Bala. 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).
* Miriam Estrada Castillo did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/9
General Assembly
Distr.: General
5 June 2024
Original: English
A/HRC/WGAD/2024/9
2
GE.24-07155
1.
Submissions
(a)
Communication from the source
4.
Mubarak Bala is a Nigerian citizen, born on 11 July 1984. He is a chemical engineer
and a human rights educator who raises awareness about extremism. He is also the President
of the Humanist Association of Nigeria and is related to a prominent Islamic scholar in
Nigeria.
(i)
Arrest and detention
5.
The source explains that, in 2014, after Mr. Bala disclosed to his family that he was
an atheist, he was forcibly drugged and detained in a psychiatrist facility for 18 days. In the
following years, Mr. Bala was reportedly harassed by various groups and threatened by the
leader of Boko Haram because of his professed beliefs. The source notes that, prior to being
arrested, Mr. Bala was an active and vocal humanist.
6.
In April 2020, Mr. Bala reportedly made nine statements on social media, which have
been communicated to the Working Group, after which he received numerous death threats,
including from a police officer.2 According to the source, the statements made by Mr. Bala
did not target individuals, advocate violence or encourage any person to criticize, persecute
or otherwise discriminate against anyone, on religious or any other grounds.
7.
It is reported that, on 27 April 2020, a local lawyer filed a petition to the police
commissioner of Kano State Police Command calling for Mr. Bala’s arrest, alleging that the
statements “definitely incite Muslims and provoke them to take the law into their own hands,
which may ultimately result into public disturbance and breach of the peace”.
8.
According to the source, Mr. Bala was arrested on 28 April 2020 at his home by
plain-clothed detectives from the Kano State Police Command. The source notes that the
arresting officers showed their identification cards but did not present Mr. Bala with an arrest
warrant and there is no evidence that any warrant was ever issued by a public authority.
Allegedly, the officers relied on the petition filed by the lawyer the day before as authority
for making the arrest. Mr. Bala was reportedly arrested on suspicion of having violated
section 26 (1) (c) of the Cybercrimes Act of 2015, which criminalizes insulting anyone online
on the basis of their status as part of a religious group, and section 210 of the Penal Code of
Kano State, which criminalizes public religious insult and incitement to religious contempt.
9.
Reportedly, following his arrest, Mr. Bala was detained at a police station in Kaduna.
On 29 April 2020, he reportedly signed a statement confirming that he had made the
statements on social media but making it clear that his intention was to encourage intellectual
debate and promote religious tolerance. According to the source, Mr. Bala did not confess to
the charges, contrary to what was reported by the prosecutor.
10.
The source reports that, for over five months after his arrest, Mr. Bala was not given
access to his family or to a lawyer. Reportedly, he was only allowed access to legal counsel
after rumours began that he had died. On 24 June 2020, the Kano Magistrates’ Court granted
the request of Mr. Bala’s lawyers to meet with him. Although the court order was issued on
15 July 2020 and served on the police the next day, the latter reportedly ignored it, claiming
that the wording was too vague. Subsequently, the police claimed that Mr. Bala was being
kept in isolation for his own protection. He was only able to meet with his lawyers for the
first time on 2 October 2020.
11.
According to the source, formal charges were not signed until 23 June 2021 and were
only communicated to Mr. Bala on 3 August 2021. Mr. Bala was reportedly brought for the
first time before a judge on 1 February 2022, nearly two years after he was arrested, and his
detention was not formally authorized by a court until 6 May 2020, during a hearing at which
Mr. Bala was not present.
2 The content of the threat made by the police officer is reported as follows: “if [Mubarak Bala] ever set
foot in Kano, he is dead already. And if he spend [sic] more than 2 days in Kaduna, even the building
that shield [sic] him will turn to ashes. Just wait and see.”
A/HRC/WGAD/2024/9
GE.24-07155
3
12.
The source explains that the initial charge sheet listed 10 counts relating to Mr. Bala’s
first five statements on social media, five pursuant to section 114 of the Penal Code of Kano
State, which punishes doing anything with intent to, or which is likely to, cause a breach of
the peace with up to three years in prison and/or a fine, and five pursuant to section 210 of
that Penal Code, which states that “whoever by any means publicly insults or seeks to incite
contempt of any religion in such a manner as to be likely to lead to breach of the peace, shall
be punished with imprisonment for a term which may extend to two years or a fine or with
both”. He was therefore charged with two offences in relation to each of the five statements.
The source notes that the offences do not require the prosecution to prove that the conduct
amounts to incitement to discrimination, hostility or violence.
13.
An initial hearing was reportedly scheduled for 3 August 2021, before the High Court
of Kano. As Mr. Bala was not produced before the court, the case was adjourned to
13 October 2021. Allegedly, the case was further adjourned twice, once because the judge
was ill and another because the judge was scheduled to have surgery.
14.
On 1 February 2022, 644 days after his arrest, Mr. Bala was brought before a judge
for the first time and formally arraigned. He reportedly pleaded not guilty to the charges listed
on the initial charge sheet. On 4 April 2022, the prosecution filed an updated final charge
sheet, adding eight counts, pursuant to sections 114 and 210 of the Penal Code of Kano State,
in relation to Mr. Bala’s four other statements on social media. Mr. Bala was charged with a
total of 18 counts, two for each statement. Reportedly, throughout the proceedings and up
until his final appearance in court on 5 April 2022, Mr. Bala’s legal team made numerous
applications for bail, all of which were denied with no clear or reasonable basis.
15.
The source explains that Nigeria is a secular State and a State party to the Covenant;
its Constitution protects freedom of religion, prohibits State-established religion and bans
discrimination based on religion. However, it notes that the Criminal Code Act of Nigeria
and the criminal codes of some individual states include vaguely worded offences that
criminalize blasphemy and impose custodial penalties for insulting a person’s religion.
According to the source, Kano State has used criminal laws to interfere with religious
freedoms and to promote and protect Islam over other religions. The source notes that, during
a visit to Nigeria in 2005, the Special Rapporteur on freedom of religion or belief considered
that the wording of section 204 of the Criminal Code Act of Nigeria, which criminalizes any
act intended to be perceived as a public insult to another person’s religion, gave it a
potentially large scope of application that, if interpreted broadly, could lead to certain abuses,
including in terms of freedom of religion.3 The source notes that the wording and scope of
section 210 of the Penal Code of Kano State is similar to that of section 204 of the Criminal
Code Act of Nigeria.
16.
On 8 May 2020, Mr. Bala’s lawyers reportedly filed a petition with the High Court of
Abuja, seeking his release on the basis that his detention violated his fundamental rights to
liberty, freedom of movement, a fair trial and freedom of thought and expression under the
Constitution of Nigeria and international human rights law. The Kano State authorities
reportedly did not file a defence and, on 19 October 2020, the High Court of Abuja heard the
petition. On 21 December 2020, the court ruled that the arrest and continued detention of
Mr. Bala, as well as the continued refusal to grant him access to legal representation,
constituted unlawful infringements of his rights under the Constitution of Nigeria and the
African Charter on Human and Peoples’ Rights. The court ordered his immediate release on
bail and awarded him damages in the amount of 250,000 naira (about $500). According to
the source, neither the Kano State Police Command nor the prosecutor nor the Kano
Magistrates’ Court complied with the order and the Kano State Police Command
subsequently denied that Mr. Bala was in their custody. Reportedly, no steps have been taken
to date to comply with the order of the High Court of Abuja.
17.
The source notes that, on 8 January 2021, while being detained, Mr. Bala was awarded
the Gordon Ross Humanist of the Year Award by the Humanist Society Scotland.
3 E/CN.4/2006/5/Add.2, para. 32.
A/HRC/WGAD/2024/9
4
GE.24-07155
18.
On 27 January 2021, Mr. Bala’s lawyers reportedly filed a second petition seeking to
transfer his trial to Abuja, on the basis that he would not receive a fair trial in Kano State and
in order to ensure his personal safety. According to the source, the High Court of Abuja did
not hear the second petition before Mr. Bala pleaded guilty to the updated charges in April
2022.
19.
On 5 April 2022, Mr. Bala was arraigned and pleaded guilty to all 18 counts, contrary
to legal advice and his previous instructions. According to the source, Mr. Bala changed his
plea after the prosecution added the eight additional charges, on the basis of information that
he had been given in custody that, if he did not do so, his trial would be delayed and he would
be denied bail. On the same day, he was sentenced to two years in custody concurrently for
each count under section 210, to run consecutively, and three years for each count under
section 114, to run consecutively. The source notes that the judge sentenced Mr. Bala to an
arbitrary total of 24 years in prison and did not give him any credit for having pleaded guilty,
imposing instead the maximum sentence prescribed by law. It adds that, having considered
Mr. Bala’s time spent in custody, the judge did not impose a separate fine.
20.
On 30 May 2022, a notice and grounds of appeal was filed with the Court of Appeal
of Kano State on behalf of Mr. Bala to contest his conviction and sentence. The appeal
reportedly challenges the jurisdiction of the Kano State authorities and the sentence imposed.
Because of issues in transferring the court file from the High Court of Kano to the Court of
Appeal, the appeal has allegedly been delayed.
(ii)
Legal analysis
21.
The source submits that the arrest and detention of Mr. Bala are arbitrary under
categories I, II, III and V.
a.
Category I
22.
The source submits that the detention of Mr. Bala is arbitrary under category I insofar
as he was detained contrary to Nigerian law, he was detained incommunicado, sections 114
and 210 of the Penal Code of Kano State are too broadly and vaguely worded to constitute
an adequate legal basis for his detention and the court should not have accepted his guilty
plea.
23.
Allegedly, the Government failed to articulate the legal basis for Mr. Bala’s arrest
through an arrest warrant and refused to comply with the 1 December 2020 decision of the
High Court of Abuja ordering Mr. Bala’s release on bail, contrary to article 9 of the Covenant.
24.
The source submits that the Government violated Mr. Bala’s right to be informed of
the grounds for his detention in writing within 24 hours of his arrest, which is enshrined in
article 35 (3) of the Constitution of Nigeria. It recalls that, at the time of his arrest on 28 April
2020, Mr. Bala was not shown an arrest warrant and formal charges were not filed until
23 June 2021 and not formally notified to Mr. Bala until 3 August 2021. The source adds that
Mr. Bala was not arrested in flagrante delicto and, as such, the Government lacks any
justification for the failure to obtain a warrant.
25.
The source argues that Mr. Bala was detained in violation of article 35 (4) and (5) of
the Constitution of Nigeria, which requires that a person arrested in a place where there is a
competent court with jurisdiction to hear the case within 40 kilometres be brought before the
court within one day and, in other cases, within two days or such time as the court deems
reasonable. Reportedly, Mr. Bala was not brought before a court until 1 February 2022, nearly
two years after his arrest. The source contends that no court would deem it reasonable to
delay the first appearance of someone detained on suspicion of a criminal offence by almost
two years. It adds that Mr. Bala’s detention was not formally sanctioned by a court until
6 May 2020, during a hearing at which he was not present.
26.
Further, the source notes that article 35 (4) of the Constitution of Nigeria requires the
release on bail of any individual arrested and detained not tried within a period of two months
from the date of arrest. Accordingly, Mr. Bala should have been released on 28 June 2020 at
the latest, two months after his arrest on 28 April 2020. Instead, he was reportedly detained
incommunicado until October 2020. The court reportedly refused multiple applications for
A/HRC/WGAD/2024/9
GE.24-07155
5
bail, keeping Mr. Bala in pretrial detention for almost two years. The source argues that there
was no legal basis under domestic or international law for detaining Mr. Bala from 28 April
2020 to 5 April 2022. It adds that, on 21 December 2020, the High Court of Abuja determined
that Mr. Bala’s arrest, continued detention and continued denial of access to legal counsel
were unlawful infringements of his rights under the Constitution and the African Charter on
Human and Peoples’ Rights. Consequently, the source argues that the continued detention of
Mr. Bala from 28 June 2020 to 5 April 2022 lacked legal basis and violated article 35 (4) of
the Constitution, the order of the High Court of Abuja and article 9 of the Covenant.
27.
Moreover, the source submits that Mr. Bala was detained incommunicado for at least
three months, from the day of his arrest until 2 October 2020, during which time his family
and lawyers did not know of his whereabouts and believed he may have died in custody. The
source argues that Mr. Bala was not brought before a judge or other judicial officer until
1 February 2022, in violation of articles 35 (4) and (5) of the Constitution of Nigeria and
article 9 (3) and (4) of the Covenant.
28.
Further, the source contends that the wording of sections 114 and 210 of the Penal
Code of Kano State is overly broad and too vague to constitute an adequate legal basis for
Mr. Bala’s detention. It recalls that, in accordance with paragraph 22 of Human Rights
Committee general comment No. 35 (2014), arrest and detention must be based on
substantive grounds prescribed by law and defined with sufficient precision to avoid overly
broad or arbitrary interpretation or application. The source notes that the principle of legality
requires that laws be formulated with sufficient precision so that individuals may have access
to and understand the law and regulate their conduct accordingly. It adds that laws that are
vague and broadly worded may have a deterrent effect on the exercise of the rights to freedom
of thought, conscience and religion, freedom of opinion and expression, freedom of peaceful
assembly and association, participation in political and public affairs, equality and
non-discrimination and protection of persons belonging to ethnic, religious or linguistic
minorities, as they have the potential for abuse, including the arbitrary deprivation of liberty.4
The source stresses that article 15 (1) of the Covenant guarantees every individuals’ right to
know what the law is and what conduct violates the law.
29.
According to the source, the Special Rapporteur on the Promotion and Protection of
the Right to Freedom of Opinion and Expression has stated that terms such as “insult” and
“ridicule” are extremely broad and are generally precluded from restriction under
international human rights law.5 The source argues that, when considering similar provisions
in domestic legislation, the Special Rapporteur determined that undefined terms such as
“insult to national honour and dignity of religious feelings” were not consistent with the
international freedom of expression standards required by the Covenant.6
30.
The source alleges that sections 114 and 210 of the Penal Code of Kano State are
inconsistently applied. Reportedly, there is a pattern by the Government of relying on an
arbitrary interpretation of blasphemy laws to enforce Islamic law and doctrine while
interfering with the rights and freedoms of religious minorities. The source argues that
Mr. Bala was prosecuted under these sections for having lawfully exercised his right to
express his religious views on social media. It submits that Mr. Bala should not have been
prosecuted under these provisions, which run contrary to the principle of legality, and the
court should not have accepted Mr. Bala’s guilty plea to the charges. It adds that Mr. Bala
was sentenced to the maximum sentence authorized by law in order to deter him and others
from repeating conduct that falls within the rights to freedom of religion and freedom of
expression.
b.
Category II
31.
The source argues that the detention of Mr. Bala is arbitrary under category II as it
results from the exercise of fundamental rights protected under international law, including
the right to freedom of thought, conscience and religion, protected by article 18 of the
4 Opinion No. 15/2021, para. 65.
5 A/74/486, para. 17.
6 A/HRC/43/46/Add.1, para. 15.
A/HRC/WGAD/2024/9
6
GE.24-07155
Covenant, article 18 of the Universal Declaration of Human Rights and article 38 of the
Constitution of Nigeria.
32.
In this regard, the source recalls that freedom of thought, conscience and religion
encompasses freedom of thought on all matters, personal conviction and the commitment to
religion or belief, and protects theistic, non-theistic and atheistic beliefs, as well as the right
not to profess any religion or belief. The source adds that the terms “belief” and “religion”
must be broadly construed.7
33.
According to the source, Mr. Bala’s statements on social media constitute a public
manifestation of his atheist views and fall entirely within his rights enshrined in article 18 of
the Covenant. It contends that Mr. Bala was prosecuted and sentenced to 24 years in prison
in order to deter him and others from exercising such rights.
34.
The source notes that permitted restrictions under article 18 (3) of the Covenant must
be prescribed by law and should not be imposed for discriminatory purposes or applied in a
discriminatory manner.8 It argues that the restrictions provided under article 18 (3) of the
Covenant cannot justify Mr. Bala’s detention insofar as sections 114 and 210 of the Penal
Code of Kano State are too broadly and vaguely worded to fulfil the requirement that the
limitations be prescribed by law. Moreover, the source contends that those provisions are
disproportionately applied to advance and protect the Muslim faith over other beliefs and
religions, which is inconsistent with article 18. In this regard, it stresses that others who
replied to Mr Bala’s posts by insulting and threatening Mr. Bala for expressing his views
were not prosecuted. The source thus concludes that, because of the vagueness and
overbreadth of sections 114 and 210 and their discriminatory application, the detention of
Mr. Bala does not fall within the permissible restrictions enumerated in article 18 (3) of the
Covenant.
35.
Further, the source submits that Mr. Bala’s detention constitutes an unlawful
interference with his right to freedom of expression, in violation of article 19 of the Covenant,
article 19 of the Universal Declaration of Human Rights, article 9 of the African Charter on
Human and Peoples’ Rights and article 39 of the Constitution of Nigeria. The source recalls
that article 19 of the Covenant protects all forms of audiovisual, electronic and Internet-based
modes of expression.9 It adds that prohibitions of displays of lack of respect for a religion or
other belief system, including blasphemy laws, are incompatible with the Covenant, except
in the specific circumstances envisaged in article 20 (2) of the Covenant, which prohibits
advocacy of national, racial or religious hatred constituting incitement to discrimination,
hostility or violence.
36.
According to the source, Mr. Bala’s statements on social media did not advocate any
violence, hatred or intolerance and did not target specific individuals or groups of people.
Rather, the source contends that they constituted expressions of his personal opinions, are
protected by article 19 of the Covenant and do not fall within the scope of article 20 (2). The
source argues that, even if it could be said that Mr. Bala’s statements do fall within the scope
of article 20 (2), it is for the Government to demonstrate that the restrictions on Mr. Bala’s
rights are prescribed by law, serve a legitimate purpose and are necessary to achieve and
proportionate to a legitimate purpose.10
37.
The source adds that article 45 (1) of the Constitution of Nigeria permits laws that
restrict fundamental rights if those laws are “reasonably justifiable in a democratic society”
and further the interests of public order. The source notes that restrictions must not put in
jeopardy the right itself and that it is not sufficient for a Government to invoke one of the
enumerated exceptions, rather, it must specify the precise nature of the threat posed by the
7 Human Rights Committee, general comment No. 22 (1993), paras. 1 and 2.
8 Ibid., para. 8.
9 Human Rights Committee, general comment No. 34 (2011), para. 12.
10 Human Rights Committee, Kim v. Republic of Korea (CCPR/C/64/D/574/1994), para. 12.2. See also
African Commission on Human and Peoples’ Rights, Declaration of Principles on Freedom of
Expression and Access to Information in Africa, principle 9; and African Commission on Human and
People’s Rights, Monim Elgak, Osman Hummeida and Amir Suliman v. Sudan, Communication
No. 379/09, Decision, March 2014, paras. 114, 115 and 118.
A/HRC/WGAD/2024/9
GE.24-07155
7
protected activity, establish a direct and immediate connection between the expression and
the threat and demonstrate why the limitation was necessary.11
38.
Further, the source argues that the limitations on Mr. Bala’s freedom of speech do not
fall within the permissible restrictions outlined in article 19 (3) of the Covenant. It submits
that, while sections 114 and 210 of the Penal Code of Kano State purport to protect public
order, the wording of such provisions is too vague and broad to satisfy the requirements of
article 19 (3). The source challenges the necessity and proportionality of imposing a criminal
sentence in excess of 20 years’ imprisonment in response to Mr. Bala’s statements. It recalls
that such statements expressed abstract views and ideas critical of the Muslim faith but did
not interfere with individuals’ right to respect and follow Islam. It notes that, by imprisoning
Mr. Bala, who was allegedly a victim of threats of violence himself, the Government
subverted the intention of articles 19 (3) and 20 (2) of the Covenant.
39.
In addition, the source argues that Mr. Bala was detained on discriminatory grounds
on the basis of his atheistic beliefs, in violation of article 26 of the Covenant. It contends that
Nigeria, and Kano State in particular, has demonstrated a pattern of discriminating against
individuals and organizations who express or pursue religious views and practices not
consistent with Islam. The source points to a previous instance in which the Working Group
found the detention of an individual in Kano State to be contrary to the individual’s right
under article 26. 12 Allegedly, Nigeria has a record of using blasphemy laws to
disproportionately target individuals from Christian, humanist and minority religious
backgrounds. Reportedly, as of October 2022, there was no record of charges being brought
against individuals who had insulted humanism or religions other than Islam.
40.
The source contends that, in the northern states, comments criticizing Islam are more
likely to lead to public disorder than comments insulting religious or belief minorities, such
as atheism, and therefore provisions such as sections 114 and 210 of the Penal Code of Kano
State are more likely to be used against religious and belief minorities than against Muslims.
The source notes that there is little evidence that individuals inciting or committing violence
against those who criticize Islam are prosecuted.
41.
In the case at hand, the source underlines that, although the responses to Mr. Bala’s
statements on social media included direct threats of violence and of death, he was the only
one to be arrested or prosecuted in connection with the statements. It adds that, during the
sentencing, the judge stated that “there are a lot of people that may have the same ideology
but not expose themselves like that”, demonstrating that Mr. Bala was in fact prosecuted for
expressing atheistic views, not for threatening public order. According to the source, such
comments, in addition to the harsh sentence imposed, suggest that the judge harboured a
personal bias, which led him to accept Mr. Bala’s guilty plea to inappropriate charges and to
impose the maximum sentence allowed.
c.
Category III
42.
The source submits that, given that Mr. Bala’s detention is arbitrary under categories
I and II, he should not have been prosecuted at all. It alleges that the Government committed
multiple, egregious violations of his due process rights and that Mr. Bala was effectively
coerced into pleading guilty to the updated charges, against legal advice, for fear that he
would not receive a fair trial. It contends that the court should not have accepted Mr. Bala’s
guilty plea and should not have convicted him.
43.
The source recalls that article 9 (3) and (4) of the Covenant protects the right of anyone
arrested to be brought promptly before a judge, to be tried within a reasonable time and to
challenge the legality of the detention. It adds that incommunicado detention inherently
violates article 9 (3) and the right to challenge the lawfulness of detention, which is
non-derogable under international law. 13 The source notes that rules 58 and 61 of the
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
11 General comment No. 34, (2011) paras. 21 and 35; and Human Rights Committee, Sohn v. Republic
of Korea (CCPR/C/54/518/1992), para. 10.4.
12 See Opinion No. 16/2021.
13 Human Rights Committee, general comment No. 35 (2014), para. 35.
A/HRC/WGAD/2024/9
8
GE.24-07155
Mandela Rules) require a State to allow prisoners to have contact with family members and
legal counsel.
44.
Allegedly, Mr. Bala was detained incommunicado, without access to his family or to
legal counsel, from 28 April to 2 October 2020, and was first brought before a court on
1 February 2022. While Mr. Bala’s lawyer’s application to the Kano Magistrates’ Court to
meet with Mr. Bala was granted on 24 June 2020, Mr. Bala was reportedly not produced at
that hearing and his lawyers were unable to gain access to him until October 2020 because
the police ignored the court order.
45.
The source contends that Mr. Bala was not formally charged until June 2021, over a
year after his arrest. Reportedly, his arraignment was subsequently adjourned on multiple
occasions for reasons unrelated to his case. The source recalls that, despite the High Court of
Abuja determining that his arrest and continued detention were unlawful and ordering his
release in December 2020, Mr. Bala remained in detention until 5 April 2022, when he
pleaded guilty. Allegedly, having waited nearly two years in custody to be formally arraigned,
Mr. Bala lost faith in the legal process and pleaded guilty out of desperation and contrary to
legal advice. The source submits that the court should not have accepted the guilty plea under
such circumstances.
46.
Further, it is recalled that article 14 (1) of the Covenant protects the rights to be equal
before the courts and to a fair and public hearing by a competent, independent and impartial
tribunal and article 14 (2) protects the right to be presumed innocent. The source notes that
judges must not allow their judgment to be influenced by personal bias or prejudice, to
harbour preconceptions about a particular case before them or to act in ways that improperly
promote the interests of one of the parties to the detriment of the other.14
47.
Allegedly, when sentencing Mr. Bala to the maximum sentence prescribed by law, the
judge commented that “the intent that he is thinking that he has to say whatever he wants to
say or put anything is not absolute … there are a lot of people that may have the same
ideology but not expose themselves like that”. According to the source, such comments,
combined with the harsh sentence imposed, suggest that the judge harboured a personal
prejudice against atheism that influenced his decision to continue detaining Mr. Bala, to
accept his guilty plea when he should not have and to hand down an unduly harsh sentence.
The source adds that such comments are contrary to Mr. Bala’s rights under articles 18 and
19 of the Covenant and suggest that the tribunal was neither independent nor impartial and
that the judge had predetermined Mr. Bala’s guilt, in violation of his right to be presumed
innocent.
48.
Moreover, the source argues that Mr. Bala was denied access to legal counsel for over
five months following his arrest, in violation of article 14 (3) (b) and (d) of the Covenant,
principle 18 (1) and (3) of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment and rule 119 of the Nelson Mandela Rules. The source
recalls that anyone arrested should be granted prompt access to counsel from the outset of
the detention.15 It contends that Mr. Bala was held incommunicado, without access to a
lawyer or his family, from April 2020 until at least October 2020, in contravention of an order
of the Kano Magistrates’ Court granting his lawyer permission to meet with him. The Kano
State Police Command allegedly disregarded the court order, merely stating that its wording
was too vague.
49.
The source also argues that the Government violated Mr. Bala’s right to be released
pending trial under article 9 (3) of the Covenant, principles 38 and 39 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
and article 35 (4) of the Constitution of Nigeria, which requires that a person held in pretrial
detention for a period of two months be released on bail, either with or without conditions.
The source adds that any detention lasting longer than 48 hours must remain absolutely
exceptional and be justified under the circumstances, and that detention pending trial must
be based on an individualized determination that the detention is reasonable and necessary
14 Human Rights Committee, general comment No. 32 (2007), para. 21.
15 Ibid., para. 34.
A/HRC/WGAD/2024/9
GE.24-07155
9
taking into account all the circumstances, for such purposes as to prevent flight, interference
with evidence or the recurrence of crime.16
50.
The source contends that Mr. Bala was detained for a period of nearly two years before
he finally pleaded guilty to the updated charges in 2022 and that his multiple applications for
bail were all rejected. The source argues that, in the circumstances, Mr. Bala’s detention was
neither reasonable nor necessary and thus violated article 9 (3) of the Covenant, principles 38
and 39 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment and article 35 (4) of the Constitution of Nigeria.
51.
Finally, the source submits that the Government violated Mr. Bala’s right to be tried
without undue delay, as enshrined in article 14 (3) (c) of the Covenant and principle 38 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. It notes that the expeditiousness of the trial is an important aspect of its
fairness, and in cases where accused persons are denied bail by the court, they must be tried
as expeditiously as possible.17 The source reiterates that Mr. Bala was not brought before a
judge until nearly two years after his arrest, charges were not brought against him until June
2021 and final charges were not signed until April 2022, approximately 10 months later.
Allegedly, by the time Mr. Bala pleaded guilty in April 2022, he had been held in pretrial
detention for nearly two years, in violation of his rights under articles 9 (3) and 14 (3) (b) and
(d) of the Covenant, principles 38 and 39 of the Body of Principles and rule 119 of the Nelson
Mandela Rules.
52.
The source stresses that Mr. Bala’s situation was made worse by his incommunicado
detention without access to a lawyer for the initial five months following his arrest. It submits
that the reasons for the delays in Mr. Bala’s proceedings were inadequate and unjustified,
and included on one occasion the case being adjourned because the judge was scheduled to
have surgery. The source observes that the delay could have been mitigated by releasing
Mr. Bala on bail.
d.
Category V
53.
The source recalls that the right not to be subjected to discrimination is particularly
crucial in criminal proceedings, as it ensures equal access and equality of arms of the parties
during proceedings.18 It argues that Mr. Bala’s right to hold atheist views is protected under
article 18 of the Covenant, article 18 of the Universal Declaration of Human Rights and
article 38 of the Constitution of Nigeria. It adds that article 7 of the Universal Declaration of
Human Rights and principle 5 (1) of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment enshrine the right to be free from
discrimination and article 42 (1) of the Constitution guarantees the right to equality.
54.
According to the source, a pattern in Nigeria exists by which authorities use
blasphemy laws and laws criminalizing the criticism of another person’s religion to arrest
and prosecute non-Muslims. In the case at hand, the source reiterates that Mr. Bala’s
statements did not incite or encourage hatred, violence or intolerance; they constituted
abstract expressions of his personal opinions about the Muslim faith. While individuals
encouraging and threatening violence against him in response to his statements were
reportedly not prosecuted, the court sentenced Mr. Bala to the maximum penalty prescribed
by law. The source concludes that Mr. Bala was arrested, prosecuted and imprisoned on the
basis of discriminatory grounds and that his detention is therefore arbitrary under category V.
(b)
Response from the Government
55.
On 13 July 2023, the Working Group transmitted the allegations to the Government
under its regular communication procedure. The Working Group requested the Government
to provide, by 11 September 2023, detailed information about the current situation of
Mr. Bala and to clarify the legal provisions justifying his continued detention, as well as its
compatibility with the obligations of Nigeria under international human rights law, and in
16 Human Rights Committee, general comment No. 35 (2014), para. 38.
17 Human Rights Committee, general comment No. 32 (2007), paras. 27 and 35.
18 Ibid., para. 8.
A/HRC/WGAD/2024/9
10
GE.24-07155
particular with regard to the treaties ratified by the State. Moreover, the Working Group
called upon the Government to ensure Mr. Bala’s physical and mental integrity.
56.
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
57.
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.
58.
In determining whether Mr. Bala’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.19 In the present case, the Government has not challenged the prima
facie credible allegations made by the source.
59.
The source argues that the detention of Mr. Bala is arbitrary under categories I, II, III
and V.
(a)
Category I
60.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without any legal basis.
Violation of the principle of legality
61.
The source contends that the detention of Mr. Bala lacks legal basis insofar as he was
arrested, detained and prosecuted on the basis of broad and vaguely worded laws. It argues
that the wording of sections 114 and 210 of the Penal Code of Kano State is overly broad and
too vague to constitute an adequate legal basis for Mr. Bala’s detention. Section 210 states
that “whoever by any means publicly insults or seeks to incite contempt of any religion in
such a manner as to be likely to lead to breach of the peace, shall be punished with
imprisonment for a term which may extend to two years or a fine or with both”, while
section 114 of the Kano State Penal Code punishes doing anything with intent to, or which
is likely to, cause a breach of the peace with up to three years in prison and/or a fine.
62.
The Working Group notes that the principle of legality enshrined in article 11 (2) of
the Universal Declaration of Human Rights and article 15 (1) of the Covenant requires laws
to be formulated with sufficient precision so that the individual can access and understand
the law, and regulate their conduct accordingly.20 In accordance with paragraph 22 of Human
Rights Committee general comment No. 35 (2014), arrest and detention must be based on
substantive grounds prescribed by law and defined with sufficient precision to avoid overly
broad or arbitrary interpretation or application. In the Working Group’s view, sections 114
and 210 of the Penal Code of Kano State cannot be considered to fulfil the requirements of
being prescribed by law and defined with sufficient precision, owing to their vague and
overly broad language. They are thus incompatible with article 11 (2) of the Universal
Declaration of Human Rights and article 15 (1) of the Covenant. As a result, the Working
Group considers that the charge on which Mr. Bala is being detained is so vague that it is
impossible to invoke a legal basis for his detention.
Absence of arrest warrant
63.
The source argues that Mr. Bala was arrested on 28 April 2020 at his home by
plain-clothed detectives from the Kano State Police Command, who showed their
identification cards but did not present Mr. Bala with an arrest warrant. The source submits
19 A/HRC/19/57, para. 68.
20 Opinion No. 37/2020, para. 60.
A/HRC/WGAD/2024/9
GE.24-07155
11
that there is no evidence that any warrant was ever issued by any public authority. These
allegations were put to the Government, which chose not to rebut them.
64.
As the Working Group has previously stated, for a deprivation of liberty to have a
legal basis, it is not sufficient that there is a law that may authorize the arrest. The authorities
must invoke that legal basis and apply it to the circumstances of the case.21 This is typically
done through an arrest warrant or arrest order (or equivalent document).22 This is inherent in
the right to liberty and security and the prohibition of arbitrary deprivation of liberty under
articles 3 and 9 of the Universal Declaration of Human Rights, article 9 (1) of the Covenant
and principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment.23 The Working Group recalls that any form of
detention or imprisonment should be ordered by, or be subjected to the effective control of,
a judicial or other authority under the law, whose status and tenure should afford the strongest
possible guarantees of competence, impartiality and independence, in accordance with
principle 4 of the Body of Principles.
65.
The Working Group concludes that the arrest of Mr. Bala without an arrest warrant
violated his rights under articles 3 and 9 of the Universal Declaration of Human Rights and
article 9 of the Covenant.
Delayed charges
66.
The source also alleges, and the Government does not contest, that Mr. Bala was not
brought before a judge until nearly two years after his arrest and that charges were not brought
against him until 23 June 2021. Mr. Bala was reportedly not formally notified of the charges
against him until 3 August 2021 and final charges were not signed until April 2022,
approximately 10 months later. Moreover, Mr. Bala was reportedly held in pretrial detention
for nearly two years.
67.
Noting the absence of any explanation from the Government, the Working Group
finds that the authorities’ failure to promptly inform Mr. Bala of the charges against him until
more than one year after his arrest violated article 9 (2) of the Covenant.
68.
The Working Group recalls that, under article 9 (3) of the Covenant, anyone arrested
or detained on a criminal charge is to 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 the arrest; any longer delay must
remain absolutely exceptional and be justified under the circumstances. 24 This right was
denied to Mr. Bala as he was only brought before a judge on 1 February 2022, nearly two
years after his arrest. The Working Group finds that Mr. Bala was not brought promptly
before a judicial authority in violation of his right under article 9 of the Universal Declaration
of Human Rights and article 9 (3) of the Covenant.
69.
Further, the Working Group recalls that, in accordance with article 9 (3) of the
Covenant, pretrial detention should be the exception rather than the norm, and should be
ordered for the shortest time possible. In other words, liberty is acknowledged under
article 9 (3) of the Covenant as the core consideration, with detention merely as an exception.
Detention pending trial must thus be based on an individualized determination that it is
reasonable and necessary for such purposes as to prevent flight, interference with evidence
or the recurrence of crime. The courts must examine whether alternatives to detention, such
as bail, would render custodial measures unnecessary.25
21 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
22 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests
made in flagrante delicto, the opportunity to obtain a warrant will typically not be available.
23 Opinions No. 6/2020, para. 40; No. 89/2020, para. 54; No. 16/2021, para. 45; and No. 25/2022,
para. 36.
24 General comment No. 35 (2014), paras. 32 and 33.
25 Ibid., para. 38. See also, for example, Opinion No. 33/2021, para. 60; and 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, guideline 15.
A/HRC/WGAD/2024/9
12
GE.24-07155
70.
In the present case, the source has submitted that Mr. Bala spent nearly two years in
pretrial detention and that his multiple applications for bail were all rejected. The
Government has provided no information indicating that the detention of Mr. Bala was based
on an individualized determination that it was reasonable and necessary, or that alternatives
to detention were considered. The Working Group therefore finds a further violation of
article 9 (3) of the Covenant in this regard.
Incommunicado detention
71.
The source argues, and the Government does not contest, that Mr. Bala was detained
incommunicado, without access to his family or to legal counsel, for over five months
following his arrest, from 28 April to 2 October 2020. While Mr. Bala’s lawyer’s application
to the Kano Magistrates’ Court to meet with Mr. Bala was granted on 24 June 2020, Mr. Bala
was reportedly not produced at that hearing and his lawyers were unable to gain access to
him until October 2020. According to the source, the court order was ignored by the
authorities who claimed that its wording was too vague and that Mr. Bala was being kept in
isolation for his own protection.
72.
The Working Group has repeatedly asserted that holding persons incommunicado
violates their right to contest the legality of their detention before a court or tribunal under
article 9 (4) of the Covenant.26 Judicial oversight of any detention is a central safeguard for
personal liberty27 and is critical in ensuring that detention has a legitimate basis. In the
circumstances surrounding Mr. Bala’s pretrial detention, the Working Group finds that he
was detained incommunicado and was therefore unable to challenge the legality of his
detention before a court, contrary to article 9 (4) of the Covenant. Consequently, his right to
an effective remedy under article 8 of the Universal Declaration of Human Rights and
article 2 (3) of the Covenant was violated.
Release order
73.
The Working Group notes the source’s submission according to which, on
21 December 2020, the High Court of Abuja ruled that the arrest and continued detention of
Mr. Bala, as well as the continued refusal to grant him access to legal representation,
constituted unlawful infringements of his rights under the Constitution of Nigeria and the
African Charter on Human and Peoples’ Rights. The Court reportedly ordered his immediate
release on bail and awarded him damages in the amount of 250,000 naira (about $500).
According to the source, the order was not complied with by the Kano State Police Command,
the prosecutor or the Kano Magistrates’ Court, and Mr. Bala remains detained. These serious
allegations were put to the Government, which chose not to contest them.
74.
The Working Group considers that the detention of Mr. Bala after 21 December 2020,
when his release was ordered by the High Court of Abuja, constitutes arbitrary detention as,
following the release order, there was no legal basis justifying his further deprivation of
liberty. This constitutes a clear violation of article 9 (1) of the Covenant. In this regard, the
Working Group echoes the call made to the authorities by other special procedure mandate
holders on 28 April 2021 to comply with the decision of the High Court.28
75.
On the basis of the above, the Working Group finds that the detention of Mr. Bala is
contrary to articles 3 and 9 of the Universal Declaration of Human Rights, article 9 of the
Covenant, principles 2, 4, 10, 11, 37, 38 and 39 of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment and rule 119 of the Nelson
26 See Opinions No. 45/2017, No. 46/2017, No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019,
No. 15/2020 and No. 27/2023.
27 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, principles 1 and 3; and opinions
No. No. 25/2022, para. 41, and 10/2023, para. 77.
28 See https://www.ohchr.org/en/press-releases/2021/04/one-year-after-authorities-must-comply-federal-
high-court-decision-release. See also communications NGA 3/2020 and NGA 2/2021. All
communications mentioned in the present document are available from
https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
A/HRC/WGAD/2024/9
GE.24-07155
13
Mandela Rules. The Working Group therefore finds that the detention of Mr. Bala is arbitrary
under category I.
(b)
Category II
76.
The source argues that the detention of Mr. Bala is arbitrary under category II as he
was detained for having exercised his rights to freedom of thought, conscience and religion
and to freedom of expression, which are protected by articles 18 and 19 of the Covenant,
articles 18 and 19 of the Universal Declaration of Human Rights and articles 38 and 39 of
the Constitution of Nigeria. The Government has chosen not to challenge these allegations,
despite being given the opportunity to do so.
77.
Article 19 (2) of the Covenant guarantees the right to freedom of expression, including
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 a person’s
choice. This right includes political discourse, commentary on public affairs, discussion of
human rights, and journalism.29 It protects the holding and expression of opinions, including
those that are critical of, or not in line with, government policy.
78.
Further, the right to freedom of thought, conscience and religion enshrined in
article 18 of the Universal Declaration on Human Rights and article 18 of the Covenant
encompasses people’s freedom to change their religion or belief and the freedom, either alone
or in community with others and in public or private, to manifest their religion or belief in
teaching, practice, worship and observance. As stated by the Human Rights Committee in
paragraph 2 of its general comment No. 22 (1993), article 18 protects theistic, non-theistic
and atheistic beliefs, as well as the right not to profess any religion or belief. 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.30
79.
The Working Group considers that Mr. Bala’s conduct fell within the right to freedom
of 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 his 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. Nothing in Mr. Bala’s case demonstrates, and
the Government has not argued, that any of the permitted restrictions on freedom of
expression found in article 19 (3) and on freedom to manifest religion or beliefs found in
article 18 (3) of the Covenant applied. The Working Group finds that Mr. Bala was detained
for exercising these rights and, therefore, that his deprivation of liberty is arbitrary under
category II.
80.
The Working Group wishes to recall that laws that are vague and broadly worded,
such as the laws addressed under category I (para. 61 above), may have a deterrent effect on
the exercise of rights, including the right to freedom of thought, conscience and religion and
the right to freedom of expression and opinion, as they have the potential for abuse, including
the arbitrary deprivation of liberty. 31 The Working Group considers that charges and
convictions under sections 114 and 210 of the Penal Code of Kano State for the peaceful
exercise of rights cannot be regarded as consistent with the Universal Declaration of Human
Rights or the Covenant.
(c)
Category III
81.
Given its finding that the deprivation of liberty of Mr. Bala is arbitrary under
category II, the Working Group wishes to emphasize that no trial should have taken place.
However, a trial did take place and Mr. Bala was sentenced to a total of 24 years in prison,
the maximum sentence prescribed by law. The source has submitted that the Government
committed multiple egregious violations of Mr. Bala’s fair trial and due process rights and
29 Human Rights Committee, general comment No. 34 (2011), para. 11.
30 Opinions No. 76/2017, para. 62; No. 88/2017, para. 32; No. 94/2017, para. 59; and 2022/25, para. 53.
31 Opinions No. 10/2018, para. 55; No. 15/2021, para. 65; and No. 46/2022, para. 63.
A/HRC/WGAD/2024/9
14
GE.24-07155
that he was effectively coerced into pleading guilty to the updated charges, against legal
advice, for fear that he would not receive a fair trial.
82.
The Working Group recalls its findings above that Mr. Bala was held incommunicado,
from 28 April to 2 October 2020. It notes the source’s allegations, unrebutted by the
Government, that while the Kano Magistrates’ Court granted Mr. Bala’s lawyer’s application
to meet with him on 24 June 2020, the police ignored the court order, Mr. Bala was not
produced at that hearing and his lawyers were unable to gain access to him until October
2020.
83.
Article 14 (3) (b) of the Covenant guarantees the right for persons charged with a
criminal offence to have adequate time and facilities for the preparation of their defence and
to communicate with counsel of their own choosing. 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. Further, principle 9 and guideline 8 of 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 stipulate that persons
deprived of their liberty are entitled to legal assistance by counsel of their choice, at any time
during their detention, including immediately after apprehension, and provide that they must
be promptly informed of this right upon apprehension. Access to legal counsel should not be
unlawfully or unreasonably restricted.
84.
The Working Group considers legal representation as being a core facet of the right
to a fair trial. Legal assistance should be available at all stages of criminal proceedings,
namely during the pretrial, trial and appellate stages, to ensure compliance with fair trial
guarantees. Any denial of access to lawyers substantially undermines and compromises
accused individuals’ capacity to defend themselves in any judicial proceedings.
85.
In the light of the above, the Working Group finds that Mr. Bala was denied the right
to a lawyer immediately after his arrest, in violation of article 14 (3) (b) of the Covenant and
of his right to a fair trial under article 11 of the Universal Declaration of Human Rights.
86.
The Working Group considers that the violations of Mr. Bala’s fair trial rights are of
such gravity as to give his deprivation of liberty an arbitrary character under category III.
(d)
Category V
87.
The source contends that Mr. Bala was arrested, prosecuted and imprisoned on the
basis of discriminatory grounds, owing to his beliefs as an atheist, and that his detention is
therefore arbitrary under category V. It argues that a pattern exists in Nigeria by which
authorities use blasphemy laws and laws criminalizing the criticism of another person’s
religion to arrest and prosecute non-Muslims and enforce Islamic law and doctrine while
interfering with the rights and freedoms of religious minorities.
88.
The Working Group recalls that the 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. Bala was detained for having peacefully
exercised his rights 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.32 The Working Group 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 33 and reiterates the concerns previously raised by special procedure mandate
32 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; and No. 65/2023, para. 75.
33 CCPR/C/NGA/CO/2, para. 44.
A/HRC/WGAD/2024/9
GE.24-07155
15
holders, including the Working Group itself, regarding the use of blasphemy laws in Nigeria
targeting religious minorities in particular.34
89.
The Working Group takes note, in particular, of the source’s allegations that, in
northern states, provisions such as sections 114 and 210 of the Penal Code of Kano State are
more likely to be used against religious and belief minorities than against Muslims.
According to the source, Nigeria has a record of using blasphemy laws to disproportionately
target individuals from minority religious backgrounds. Reportedly, as of October 2022,
there was no record of charges pursued against individuals having insulted religions other
than Islam. In this regard, the Working Group recalls the source’s submissions that, although
responses to Mr. Bala’s statements on social media included direct threats of violence and of
death, he was the only one to be arrested or prosecuted in connection with the statements.
Further, it is reported that, during the sentencing, the judge stated that “there are a lot of
people that may have the same ideology but not expose themselves like that” and sentenced
Mr. Bala to the maximum sentence prescribed by law.
90.
In view of the above, and noting the absence of any response from the Government
contesting the prima facie credible allegations formulated by the source, the Working Group
concludes that Mr. Bala was detained on discriminatory grounds, based on his atheism, 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
91.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mubarak Bala, being in contravention of articles 2, 3,
7, 8, 9, 11, 18 and 19 of the Universal Declaration of Human Rights and articles 2,
9, 14, 15, 18, 19 and 26 of the International Covenant on Civil and Political Rights,
is arbitrary and falls within categories I, II, III and V.
92.
The Working Group requests the Government of Nigeria to take the steps necessary
to remedy the situation of Mr. Bala 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.
93.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Bala immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international law.
94.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary detention of Mr. Bala and to take
appropriate measures against those responsible for the violation of his rights.
95.
The Working Group requests the Government to bring its laws, in particular
sections 114 and 210 of the Penal Code of Kano State, into conformity with the
recommendations made in the present opinion and with the commitments made by Nigeria
under international human rights law.
96.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
97.
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. Bala has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Bala;
34 See communication NGA 1/2023.
A/HRC/WGAD/2024/9
16
GE.24-07155
(c)
Whether an investigation has been conducted into the violation of Mr. Bala’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.
98.
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.
99.
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.
100.
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.35
[Adopted on 19 March 2024]
35 Human Rights Council resolution 51/8, paras. 6 and 9.