decision in Abacha v Fawehinmi, in which the Nigerian Supreme Court held that the African Charter cannot be superior to the Constitution and upheld. Download Citation on ResearchGate | GANI FAWEHINMI V. GENERAL SANI ABACHA AND OTHERS: JUDICIAL ACTIVISM OR. General Sanni Abacha v. Chief Gani Fawehinmi, Supreme Court, 28 April General Sanni Abacha, Attorney-General of the Federation, State Security .

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In The Supreme Court of Nigeria. On Friday, the 28 th day of April Salihu Modibbo Alfa Belgore. Attorney-General of the Federation Judgement of the Court.

The facts of this case are simple enough. The respondent, a legal practitioner, was arrested without warrant at his residence on Tuesday, January 30 that about 6 a. At the time of his arrest the respondent was not informed of, nor charged with, any offence.

He was later detained at the Bauchi prisons. In consequence, he applied ex-parte through his counsel, to the Federal High Court, Lagos pursuant to the Fundamental Rights Enforcement Procedure Rules for the following reliefs against the 4 respondents who are now appellants before us and shall hereinafter be referred to as appellants: A mandatory order compelling the respondents, whether by themselves or by their officers, agents, servants privies or otherwise howsoever to forthwith release the applicant.

An injunction restraining the respondents, whether by themselves or by their officers, agents, servants, privies or otherwise howsoever from further arresting, detaining or in any other manner infringing on the fundamental rights of the applicant. Leave having been granted, he applied by motion on notice for the said reliefs. On being served with the motion papers learned counsel for the appellants filed a preliminary objection to the effect that the respondent could not maintain the action against the appellants on the ground that the Court lacked competence to entertain it.

The reasons given for the objection were:. Arguments on the preliminary objection were taken form learned counsel appearing for the parties in the course of which a detention order No.

In a reserved ruling given on 26 th day of Marchthe learned trial judge found. That the Court cannot question the legality of the Detention Order since it was made by the appropriate authority under the Decree. It cannot be enforced as a distinct law. As such, it is subject to our domestic law and ouster decree. Consequently, the objection raised by the respondents is sustained, this suit is accordingly struck out.

This ruling affects the order of this court made on the 14 th of February, In coming to this conclusion, the Court of Appeal found:.

That though the Detention Order should have been exhibited to the Notice of Preliminary Objection, the way and the manner it was introduced in the court below did not occasion any miscarriage of justice. That notwithstanding the fact that Cap. That the provision of Cap. While the Decrees of the Federal Military Government may over-ride other municipal laws they cannot oust the jurisdiction of the court whenever properly called upon to do so in relation to matters pertaining to human rights under the African Charter.

They are protected by the International law and the Federal Military Government is not legally permitted to legislate out of its obligations. That the appellant respondent before us was wrong in the procedure he adopted to enforce the Charter under the special jurisdictions of the court in reliance on section 42 of the Constitution. The learned trial judge was right to decline jurisdiction under the circumstances on the basis of the procedure adopted. That the Detention Order is not a legislative judgment by any means.

Pats-Acholonu,JCA in his concurring judgment observed:. I wonder whether the appellant is unaware of the Provisions of Section 67 of the Constitution of the Federal Republic of Nigeria.

That section provides immunity against the civil or criminal action or proceedings against the person of the President or the Head of State. It is wrong in law to have joined him as a party. The constitution is the primary law of the land. I hold therefore, that the name of the Head of State should not have been reflected in the suit in the first place. It offends the provision of the Constitution.


No other judge of the court below who sat on the appeal made any observation to the same effect. Both parties are aggrieved by the decision of the court below and have appealed to this court.

The respondent cross-appealed against abafha parts of the court below relating to. Power of Inspector-General to sign and issue a detention order. Procedure for tendering detention order; and.

Abacha v. Fawehinmi- Between Monism and | Gbadebo A Olagunju –

Pursuant to the rules of this court the parties filed and exchanged their respective written briefs of arguments. And at the oral hearing of appeal, their learned counsel proffered oral arguments in further elucidation of the issues raised in their respective briefs. I have fully considered the submissions made by learned counsel both in their briefs and in oral arguments. These two broad headings cover all the issues formulated by the parties in their respective briefs.

The status of the African Charter is strictly not necessary for the determination of the main appeal in that in spite of what their Lordships of the Court below said on it, it did not affect the final decision they arrived at. The respondent has, however, raised it again in his cross-appeal in arguing that his case should be sent back to the trial Court for trial not in respect of the period of four day before the detention order was issued but in respect of the entire period of his detention.

Art 23 and between citizens and member states e. I have carefully considered all that has been said by learned counsel for the parties on the status of the Charter as an international treaty entered into by our country. I do not consider it necessary to set out in extenso in this judgment their submissions. Suffice it to say that an international treaty entered into by the Government of Nigeria does not become binding until enacted into law by the National Assembly. See section 12 1 of the Constitution which provides:.

Before its enactment into law by National Assembly, an international treaty has no such force of law as to make its provisions justiciable in our courts.

The Times of December 23, where it was held that.

Treaties formed no part of domestic law unless enacted by the legislature. Domestic Courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land. Cawehinmi might have an indirect effect upon the construction of statues or might give rise to a legitimate expectation by citizens that the government, in its act affecting them, would observe the terms of the treaty”.

In my respectful view, I think the above passage represents the correct position of faawehinmi law, not only in England, but in Nigeria as well. Where, however, the treaty is enacted into law by the National Assembly, as was the case with the African Charter which is incorporated into our municipal i.

The Charter gives to citizens of member states of the Organisation of African Unity rights and obligations, which rights and obligations are to be enforced by our Courts, if they must have any meaning.

It is interesting to ahacha that the rights and obligations contained in the Charter are not new to Nigeria as most of these rights and obligations are already enshrined in our Constitution. See Chapter IV of the and Constitutions. Being so, therefore, I would think that if here is a conflict between it and another statue, its provisions will prevail over those of that other statue for the reason that it is presumed that the legislature does not fzwehinmi to breach an international obligation.

To this extent I agree with their Lordships of the Court below that the Charter possesses “a greater vigour and strength” than any other domestic statue. But that is not to say that the Charter is superior to the Constitution as erroneously, with respect, was submitted by Mr.


Adegbrouwa, learned counsel for the respondent. Nor can its international flavour prevent the National Assembly, or the Federal Military Government before it removing it from our body of municipal laws by simply repealing Cap. Nor also is the abaxha of another statute fawehini be necessarily affected by the mere fact that it violates the African Charter or any other treaty, for that matter- see: Chae Chin Ping v.

United States US. With all I have said above, I now come back to the case on hand. The respondent was said to have been detained by virtue of a detention order issued by the Inspector-General of Police in exercise of the powers conferred on him by section 1 1 of the State Security Detention of Persons Act, Cap. It is the case of the Appellants that the Act ousted the jurisdiction of the Courts in respect of anything done under the Act.

This submission found favour with the court below. For Musdapher JCA who delivered the lead judgment of that court with which the other justices that sat with him agreed, said:. It is part of administrative law which frowns at abuse or misuse of power. But in Nigeria there are provisions in Decrees such as No. Usually no reasons are given by the detaining authority as to how a detainee constitutes a menace or threat to the State.

It is regarded as a matter of security of the State which is not open to probing by the courts, also for security reasons.

Attempts by courts fawehimni order the release of such detainees on application by habeas corpus is even ousted. See Decree No 22 of In a democratic Government under the rule of law, all judicial powers of the State are vested in the judiciary.

Under the Military Regimes, the powers are invariably eroded. The erosion may be creating Military or Special Tribunals …. It may also be the ouster of the jurisdiction of courts of law. Once the provision of a Decree or Constitution ousting the jurisdiction of the courts on any specific matters are clear and unambiguous, the court are bound to observe and apply them.

They are not entitled, even when the ouster has drastic effect on the right of any person, to faweihnmi its interpretation by a false or twisted meaning given to it by unacceptable restricted construction.

In view of the authorities, I have to resolve the 5 th and 6 th issues against the appellant.

Case Abacha v. Fawehinmi

It abacba as a result of this conclusion that the learned Justice of Appeal finally held:. I remit the case back to the trial court to consider the issue of the consequences of the detention for the four days of the appellant which is apparently not covered by the order.

Section 5 of Decree No. These two enactments, which have been judicially examined since the inception of the Military regimes in Nigeria in a plethora of cases leave no room for any interpretative mechanisms to abachz jurisdiction when jurisdiction has been effectively ousted. The courts have always construed such clauses strictly, However, where, as in this case, the language is plain, the courts have to give effect to it.

The legislations are undoubtedly drastic, but the courts are bound to give effect to them and decline adjudicating. Before going further, I wish to abavha in passing and in further buttressing of my opinion and holding fawfhinmi the suspension of operation of the provision of African Charter and the Incorporating Act has never been intended nor to my mind carried out.

On the fact of it the purport of the provision is that the jurisdiction of the court is completely ousted. It looks a somersault!