The Economic Community of West African States (ECOWAS Court) delivered an important decision in the Obianuju Catherine Ude & 2 Others v Federal Republic of Nigeria case on July 10, 2024. The case challenges violations committed in the framework of the October 2020 #ENDSARS protests in Nigeria The protests drew attention to persistent police abuse often perpetrated against young people.  In its judgment, the Court declared that Nigeria violated certain provisions of the African Charter on Human and Peoples’ Rights (African Charter) namely Article 5 (prohibition of torture), article 6 (right to liberty and security of persons), articles 9, 10 and 11 (right to freedom of expression, assembly and association), and article 1 (right to an effective remedy).

Although the Court touched on the state’s duty to investigate, it missed an important opportunity to highlight the failure of the state to exercise due diligence in prosecuting alleged perpetrators of violent crimes in the framework of public protests. Subverting due diligence obligations is a violation of Article 1 of the African Charter which requires state parties to protect and promote rights.

Unchecked and systemic abuse of crime suspects by officers of the Nigerian Police Force’s Special Anti-Robbery Squad (SARS) led to the #ENDSARS protests. The applicants in this case witnessed the protests and some of the violations that accompanied them. They approached the court when the prospect of state-delivered justice for victims became slim.

The #ENDSARS protests were initially met with silence from the government. That changed when the protesters persisted and slowly began to gain ground. At that point, the Muhammadu Buhari-led federal government decided to increase the boots on the ground by inviting the military to perform policing duties, notably breaking up public protests. The consequence was immediate and devastating. The victims, HRW Report, media, and at least one government investigation report hinted that lives were lost, and limbs maimed.

Addressing the question of violation of the right to life, the ECOWAS Court correctly observed that the applicants did not canvass their claim on behalf of any deceased victim. However, it took the initiative to direct the government of Nigeria to investigate the allegation of arbitrary killings. Interestingly, Nigeria’s counsel drew the Court’s attention to the report of a government-sponsored panel on the #ENDSARS protests. Regrettably, the Court did not review that report.

Had it examined the report, the Court would have observed that it contained specific recommendations regarding prosecuting named individuals for their roles in the “arbitrary and indiscriminate shooting and killing of protesters.” This finding should have led to further inquiry about the status of prosecutions. To the extent that there was no credible evidence of prosecution, it stands to reason that the Court would have raised questions about Nigeria’s compliance with its due diligence obligations.

In a prior case, the Court explained that the due diligence principle invites states to prevent human rights violations in their territories. Additionally, it expects the state to investigate, prosecute, and punish perpetrators when violations occur. Failure to do this triggers state responsibility. It is important to point out that the acts of state institutions and officials constitute state conduct.

It is unclear why the Court failed to apply this principle to the case under review. However, it is fundamental to the quest for redress and prevention of future violations. This is crucial given the current #EndBadGovernance protests in different cities around Nigeria. The protests demand better governance outcomes and have already led to the extrajudicial execution of at least 13 protesters.

Making a point to hold states accountable for failing to fulfil their due diligence obligations sends clear signals to governments and their institutions that the rights of citizens matter and should be protected. After the initial slip, the Court has another opportunity to fix the problem. The judgment requires Nigeria to report on the state of compliance within six months. I hope the report provides a framework to discuss the prospects of prosecution and the value of additional investigations.