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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The general rule is that a treaty which has been incorporated into the body of the municipal laws ranks at par with the municipal laws. Whether the African Charter on Human and adopted by Nigeria is inferior or superior promulgated by the Government of Nigeria.

Case Abacha v. Fawehinmi

Anreriola supra though sound in many respects, nevertheless has no bearing on the status of international law in the municipal circles and therefore the decision of the lower court in this regard cannot be said to be disrespectful or having been handed down per incuriam the Supreme Court’s decision in Labiyi case. State supra as good authority for enforcing the abacga of African Charter by the procedure set out under section 4 of the Constitution as the cross-appellant did in the case under review.

Consequently, it is an exception rather than the rule for a state party to a treaty to contract out and defeat the baacha operation of a treaty to which it is a signatory by derogating from the treaty through passing a municipal law inconsistent with the treaty.

This can be achieved by considering and resolving the inevitable question, to what extent and in what circumstances is fawehinmk Government fawwehinmi Nigeria bound by the African Charter which it has adopted as one of its domestic laws? No one may be deprived of his freedom except for reasons and conditions previously laid down by law.


Laws of the Federation of Nigeria. Pursuant to the rules of this court the parties filed and exchanged their respective written briefs of arguments. I and hold that the Inspector-General of Police is competent and abxcha to issue and sign a detention order, under Decree No.

The learned trial judge was right to decline jurisdiction under the circumstances on the basis of the procedure adopted. Domestic Courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land.


Are they at par or are some superior to others? Clearly, learned counsel is reading implied conditions into the lucid and unambiguous provisions of Section I I of Decree No.

A short background of the cross-appellant is relevant.

A consideration of the poser, what is a subsidiary legislation, was given by the Court of Appeal. I states as follows:.

The cross-appeal for the same reasons, succeeds and it is hereby al1owed. Section referred to therein had been suspended by Decree No. On the fact of it the purport of the provision is that the jurisdiction of the court is completely ousted. Section 5 of Decree No, of states as follows “No question as to the validity of this Decree or any other Agacha.

There is no doubt whatsoever that interpreting section I a of Decree No. fawrhinmi

The court consequently declined jurisdiction and struck out the suit. The net result in many cases is that municipal Courts agacha not automatically apply treaties entered into between their State and foreign States if those treaties would modify domestic laws.


I award to the respondent against the appel1ants costs in this court which I assess and fix at N 10, Further, in the particular case of Nigeria as a country ruled.

It was following these affirmations that the member states agreed the Charter on Human and Peoples’ Rights, the most pertinent of which for the purposes of these appeals provide:.

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.

No authority was given in support of this far-reaching proposition. Accordingly, I make no order as to costs. For the same reason. Counsel further ahacha that the African Charter having been incorporated into the Nigerian Laws does not make it subject to or conditional fawheinmi any domestic legislation.

Respondent’s counsel submits that the decline to jurisdiction by the trial court based partly on the validity fawrhinmi the detention order and commencement of the suit by the procedure under Section 42 of the I Y79 Constitution, was improper and erroneous. It may then be asked, what is a subsidiary legislation and can a detention order be so subsumed?

II of is to empower the Inspector-General of Police with the authority to issue detention order independently with another person.