The International League Against Arbitrary Detention urges the Governments of Equatorial Guinea and Togo to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 09/2023 concerning Sahil Bahaba Madi, Moubarak Hamed, Francisco Micha Obama, Desiderio Ndong Abeso Abuy, Adolfo Secundino Esono Mba Oyana and Lucas Ntutumu Otogo Ayecaba starting for the Government of Equatorial Guinea to immediately release the six individuals and for the Governments of the Equatorial Guinea and Togo to accord them an enforceable right to compensation and other reparations in accordance with international law.
Read the full WDAG Opinion concerning these individuals (Equatorial Guinea and Togo): Opinion No. 9/2023.
ARRESTED WITHOUT LEGAL BASIS AND DETAINED INCOMMUNICADO
On 27 December 2017, Equatorial Guinean authorities reportedly arrested 30 individuals for their involvement in an attempted coup d'état. Between December 2017 and February 2019, the Equatorial Guinean government reportedly arrested presumed opponents as well as members of the main opposition political party. Messrs. Madi, Hamed, Obama, Abuy, Oyana and go Ayecaba were among 130 people arrested and accused of crimes against the head of state, treason, rebellion, possession and storage of weapons, terrorism, and financing terrorism. They were judged in a collective trial. Messrs. Abuy, Oyanaand Ayecaba were three of the many defendants whose arrest was based wholly or partly on their family ties to alleged participants in the coup. Messrs. Madi and Hamed, both from Cameroon, were accused of participating in the coup attempt, while Mr. Obama was accused of financing the coup and transferred from Togo to Equatorial Guinea for judgement. None were presented with an arrest warrant or a possibility to oppose the transfer for Mr. Obama.
The Working Group stated that the Government violated article 9 of the Covenant by not issuing an arrest warrant for the six individuals as well as not explaining the reason for their arrest and not promptly informing them of the charges against them. Anyone deprived of their liberty has the right to challenge the legality of their detention before a court and to be released promptly if the detention is found to be illegal in accordance with article 9 of the Covenant. The Working Group further noted the unrefuted allegation that the six individuals were subjected to incommunicado detention, which the Working Group recalled is inherently arbitrary and in violation of article 6 of the Universal Declaration of Human Rights and article 16 of the Covenant. Accordingly, the Working Group stated that incommunicado detention constitutes a violation of the right to challenge the legality of one's detention before a court and deprived the six individuals of their right to an effective remedy.
Moreover, concerning the specific issue of the transfer of Mr. Obama from Togo to Equatorial Guinea, the Working Group recalled that transfers and detentions outside the bounds of any judicial procedure, denying individuals access to a lawyer or appearance before a judicial authority to contest their transfer, are considered to be arbitrary. Accordingly, noting the uncontested allegations against Togo, the Working Group concluded that the detention of Mr. Obama was devoid of legal basis, in violation of articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of the Covenant.
The Working Group consequently found their deprivation of liberty to be deprived of legal basis, and thus arbitrary under category I.
DENIED THE RIGHT TO A FAIR TRIAL DURING A COLLECTIVE TRIAL OF MORE THAN 130 PEOPLE
The Working Group considered that the collective trial of some 130 people, including the six individuals, did not allow for an individual legal assessment in line with the principles of individual criminal responsibility and presumption of innocence, and jeopardised their ability to exercise their right to challenge their conviction, as guaranteed by article 14 of the Covenant.
In addition, according to uncontested allegations, halfway through the trial, two magistrates, one military and one police, were added to the civil trial. The Working Group found this in violation of the rights of the six individuals to have their case heard by an independent and impartial tribunal, guaranteed by article 10 of the Universal Declaration of Human Rights and article 14 of the Covenant.
SUBJECTED TO ACTS OF TORTURE TO EXTRACT CONFESSIONS
The six individuals were allegedly subjected to acts of torture to extract confessions. The Government did not deny this allegation. The Working Group recalled that torture significantly impairs the right to a fair trial and violates the right not to be compelled to testify against oneself or confess guilt as outlined in article 14 paragraph 3 g of the Covenant. The Working Group also recalled that the use of forced confessions is contrary to article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as Principle 21 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Accordingly, the Working Group concluded that the rights of the six individuals to a fair trial, guaranteed by article 10 of the Universal Declaration of Human Rights and article 14 of the Covenant, had been violated.
The Working Group concluded that the failure to adhere to international standards regarding the right to a fair trial for the six individuals is of such gravity that the deprivation of their liberty constituted an arbitrary act under category III.
DENIED CONSULAR ASSISTANCE AND DISCRIMINATED AGAINST ON THE BASIS OF THEIR NATIONALITY
The Working Group noted that Cameroon was not notified of the arrests of their nationals Messrs. Madi and Hamed, despite both Cameroon and Equatorial Guinea being party to the Vienna Convention on Consular Relations. Therefore, the Working Group concluded that by not respecting the right of Mr. Madi and Mr. Hamed to consular assistance, the Government has disregarded articles 9, 10, and 11 (1) of the Universal Declaration of Human Rights, articles 9 (1) and 14 (1) of the Covenant, and Principle 16 (2) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
Moreover, the Working Group recalled that detention is arbitrary under category V when it constitutes a violation of international law stemming from discrimination based on protected grounds such as nationality that tends to or may lead to the non-respect of the principle of equality among human beings. In the absence of contestation from the Government that Messrs. Hamed and Madi were allegedly subjected to discriminatory treatment, as they were accused of the coup attempt due to their status as foreigners and subjected to treatment worse than that of national detainees including being forced to eat and sleep directly on the ground and deprived access to clean water, medical care and the opportunity to wash their clothes, the Working Group considered that they were deprived of their liberty for discriminatory reasons, namely their national origin, in violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, rendering their deprivation of liberty arbitrary under Category V.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In the light of the foregoing, the UN Working Group Against Arbitrary Detention considered that:
regarding Togo, the detention of Francisco Micha Obama was arbitrary as it contravened articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights and fell under Category I.
with regards to Equatorial Guinea, the deprivation of liberty of Sahil Bahaba Madi, Moubarak Hamed, Francisco Micha Obama, Desiderio Ndong Abeso Abuy, Adolfo Secundino Esono Mba Oyana, and Lucas Ntutumu Otogo Ayecaba was arbitrary as it contravenesdarticles 3, 6, 8, 9, 10, and 11 of the Universal Declaration of Human Rights and articles 2, 9, 14, and 16 of the International Covenant on Civil and Political Rights and fell under Categories I and III. Additionally, the deprivation of liberty of Sahil Bahaba Madi and Moubarak Hamed is was also found to be arbitrary as it violated articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 and 26 of the International Covenant on Civil and Political Rights and fell under Category V.
The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to immediately and unconditionally release the six individuals and grant them the right to obtain redress, including compensation, in accordance with international law.
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