Prosecution of #EndSARS Protesters in Nigeria Shows Police Misconduct Extends to the Courts, Says TrialWatch Report

The trials of two #EndSARS activists in Nigeria show how the police use not only force, but the criminal justice system to silence and retaliate against their critics, a new TrialWatch report said today. Their cases were monitored by CFJ’s partner the American Bar Association Center for Human Rights as part of TrialWatch. The report gave both cases a ‘D’ grade due to the shifting nature of the allegations and lack of evidence. One of the activists, Nicholas Mbah, still faces up to 18 years in prison.

The authorities consistently and repeatedly violated the rights of Mr. Mbah and Eromosele Adene from the moment of their arrest throughout their trials. The two activists were arrested within a few weeks of when Nigerian security forces shot and killed at least nine unarmed people protesting police brutality in Lagos as part of the #EndSARS demonstrations. The protests were aimed at ending the operations of the Special Anti-Robbery Squad (“SARS”), a police unit notorious for its abuses. The two activists were then prosecuted for a range of public order offenses by police prosecutors under a Nigerian law that authorizes police to undertake prosecutions in certain circumstances.

“Both defendants were charged with broad public order offenses, such as ‘breaching the peace through offensive publication’ and ‘unlawful assembly,’” said TrialWatch Expert Professor Michael Hamilton. “The breadth of these provisions undermines the protection afforded by international human rights law to freedom of speech and to peaceful assembly. Nigeria should therefore reform these laws to prevent further abuse.” 

In both cases, the proceedings appear to have been initiated to suppress their rights to freedom of expression and peaceful assembly.

Mr. Mbah, who is now out of detention, was reportedly beaten by police in an effort to get a confession and kept in unjustified detention for nearly eight months. Police initially claimed that they arrested Mr. Mbah with weapons in his possession. They charged him with armed robbery and armed assault on government property and used the alleged presence of weapons to justify his pretrial detention. However, no evidence of weapons was ever presented in court and the armed robbery and assault charges were later withdrawn.

Almost a year and a half since he was first arrested, Mr. Mbah’s case is still ongoing, and he faces up to 18 years in prison. Other charges, seemingly based on the same alleged incident, have been filed against him before a higher court. If that case goes ahead, it would supersede the earlier proceedings, meaning that Mr. Mbah would face the prospect of arrest and detention again.

Absent any other evidence—which has not been forthcoming after more than a year—the Clooney Foundation for Justice calls on the courts considering charges against Mr. Mbah to dismiss them.  More broadly, the Nigerian government must stop any harassment of peaceful protesters.

Mr. Adene, the second #ENDSARS activist, was shuttled between Lagos and the capital Abuja after his arrest—something the police later tried to cover up. He was kept in detention without court review for nine days, more than the 48-hour limit for such detention. His case has since been dismissed due to the prosecution’s failure to produce evidence. The police claimed they arrested Mr. Adene at a protest and had seized evidence at the time. However, it was proven through video footage that he was in fact arrested at home and no evidence was ever presented to court.

The TrialWatch report, drafted by staff at the ABA Center for Human Rights and with the evaluations and grades by Professor Hamilton, found that “the underlying allegations changed dramatically throughout the course of the proceedings.” It concludes: “There were not reasonable grounds for prosecution.” Instead, the police prosecutors were “attempting to pin any criminal charge on the accused as opposed to assessing whether there was evidence of a crime.” This behavior is consistent with other cases where TrialWatch has documented the abusive role police prosecutors play in Nigeria—exacerbated here by the fact that the police were prosecuting activists involved in anti-police protests.

“The shifting allegations—and the fact that some of the police claims were subsequently disproven—suggest that the police arrested and prosecuted these activists because of their involvement in the #EndSARS protests,” said Professor Hamilton. 

Mr. Mbah and Mr. Adene’s cases form part of a greater pattern in Nigeria. In Lagos alone, over 300 protesters were reportedly still in pretrial detention as of September 2021 for their role in the #EndSARS demonstrations.

Background

The Special Anti-Robbery Squad (“SARS”) was created in 1992 as an independent policing unit focused on combatting robbery. Its mandate was later expanded to include the pursuit of violent criminals. Shortly after its establishment, there were reports of abuse by SARS officials, including arbitrary arrests, unlawful detention, enforced disappearances, torture, sexual violence, and extrajudicial killings. In the three-year period between 2017 and 2020, Amnesty International documented at least 82 cases of extortion, torture, and ill-treatment by SARS.

Public calls for SARS reform, which had previously gained significant traction, were reinvigorated in October 2020 when a graphic video of a shooting by a SARS officer circulated online and the #EndSARS hashtag trended worldwide. Demonstrations were held across the country and the authorities responded with force. In the most notorious incident, on October 20, 2020, Nigerian security forces opened fire on protesters in Lagos, killing at least nine. A recent report by the Lagos Court of Arbitration found that Nigerian forces “shot, injured and killed unarmed helpless and defenseless protesters, without provocation or justification, while they were waving the Nigerian Flag and singing the national anthem.”

According to Nigeria’s Inspector-General, authorities arrested 1,590 people during and following the #EndSARS protests. Human Rights Watch also reported that “Nigerian authorities froze the bank accounts of individuals and groups donating, collecting, or disbursing funds to support the protesters and placed travel restrictions on prominent supporters of the protests.”

Eromosele Adene is a musician and well-known activist within the #EndSARS protest movement. He was arrested in Lagos on November 7, 2020, in advance of scheduled protests that had been promoted with flyers containing his phone number. Without a court order, Mr. Adene was transferred to Abuja and detained.  A court did not review his detention until nine days later and he was released on bail on November 17.

He was initially accused of criminal incitement, cyber stalking, provoking a breach of the peace, and conduct likely to cause breach of the peace.  Yet at the first hearing in his case he was formally charged with a different set of offenses: conspiring to provoke a breach of the peace, breach of the peace by offensive publication, and conduct likely to cause a breach of the peace.  Moreover, the police initially claimed that he “was arrested on the protest ground with exhibits [i.e., evidence] caught on him.”  However, video footage showed that he had been arrested at home and no “exhibits” were ever presented in court.

On October 18, 2021, after nearly a year and hearings in December 2020 and July 2021 at which the prosecution requested more time or was absent, the court dismissed the charges.

Nicholas Mbah is a musician and well-known activist within the #EndSARS protest movement.  He was arrested on October 29, 2020, apparently in the vicinity of an individual the police claimed had been heard talking about a group of youth’s plans to burn a police station. Mr. Mbah has said, however, that the area was “peaceful and calm,” with neither “fight nor destruction.” According to Mr. Mbah, officers attempted to coerce him into writing a confession. Mr. Mbah reported that when he refused, he was beaten.

Mr. Mbah was detained because, among other things, the police claimed that he had been arrested with weapons.  But no evidence of weapons possession was ever presented. At the first hearing in his case, held five months after his arrest, Mr. Mbah—like Mr. Adene—was charged with different offenses from the ones originally alleged.

At that same hearing, he was granted bail.  However, he was not actually released until three months later.  The report explains that “prison officials refused to release him on a range of trifling procedural grounds, suggesting that detention was more of a retaliatory punishment than a necessary preventive measure.”

Mr. Mbah’s criminal trial before the Yaba Magistrate Court is currently ongoing.  Meanwhile, additional charges reportedly based on the same facts have also been filed before the Lagos High Court.

For a full analysis of Mr. Mbah’s and Mr. Adene’s cases and the grades that have been provided, read the report here.