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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Authorities abound today wherein municipal or domestic court is at liberty to apply and enforce a treaty. Whether the respondent as Head of State of Nigeria is immune from civil or criminal actions in all cases. See Wang Ching – Yao and Ors. With profound respect to their Lordships, I think they fxwehinmi wrong for so holding. It looks a somersault! Anderson AC as an example where the court declined jurisdiction to question the exercise of discretionary and subjective power such as the one exercisable by the Inspector General of Police.

Ffawehinmi general rule is that costs should follow the event. The respondent was hold under this Decree except four clear days before the Order was signed. The reasons given for the objection were:. S Dissenting on the Cross-Appeal: Requiring their adherence to the principles of human and peoples’ rights and freedoms contained in the declarations, conventions and other instruments adopted by the Organization of African Unity, the Movement of Non-Aligned Countries and the United Nations.

It is counsel’s further submission that in signing a treaty with other nations there is an element of assumed voluntary surrender of sovereignty for the purpose only of being bound by the treaty and so Nigeria cannot contract out of its obligation under a treaty, Counsel further submits that the fact that Nigeria is under an absolute Military Government cannot derogate from her international obligation such as under the African Charter nor even suspend the operation of provisions of that Charter or such international treaties that relate to human rights and fundamental freedoms because “a state remains a subject of international law irrespective of whether it is military absolutism, civil democracy or a fascist E repression.

The respondent is a legal practitioner, an author, publisher. A mandatory order compelling the respondents, whether by themselves or by their officers, agents, servants privies or otherwise howsoever to forthwith release the applicant.

Thus it is submitted by cross-appellant’s counsel that the fact that he, at a point, perused the detention order does not make him “a party to any civil proceedings who knowing of an irregularity, allows the irregular procedure fxwehinmi be adopted”.

S, “Every sovereign state is bound to respect the independence of another sovereign state and the courts of one state will not sit in judgment on the acts of another done within its own territory. That the Detention Order is not baacha legislative judgment by any means. In international relations nation parties resolve several aspects by treaties and protocols some of which either exist already in their domestic statutes or are adopted into domestic laws by acts of parties mentioned.


Arguments were taken by the trial court on the preliminary objection during which a detention order No. An Order of Mandamus compelling the respondents to forthwith arraign fawehinki applicant before fawehnimi properly constituted court or tribunal as required by section 33 of Constitution of the Federal Republic of Nigeria as preserved by Decree of and Article 7 of the African Charter on Human cawehinmi Peoples’ Rights Ratification and Enforcement Act, Cap.

Having upheld the propriety of the procedure adopted by the respondent, it is, therefore, clear that the period of four days established and conceded to on both sides which is not covered by the detention order remains inviolate. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Case Abacha v. Fawehinmi

Ikeja, Lagos, and arrested the applicant. Under the Military Regimes, the powers are invariably eroded. I am unable to agree with Mr.

The trial court, therefore wrongly declined jurisdiction to entertain respondent’s action before it, for the same reason. The cross-appeal fails on this. Chae Chin Ping v.

Both counsel in the appeal hold divergent views on the scope and nature of the local enactments in comparison with the African Charter.

Contrary to the submission by learned cross-appellant’s counsel that the Decree, as amended, has spelt out conditions or circumstances which must exist before the Inspector-General of Police can issue a detention order, I have searched, in vain, to discover the said conditions-precedent.

Had the lower court done so. On Thursday, 30 January, at about 6 a. I do not consider it necessary to set out in extenso in this judgment their submissions. I I of give the Inspector-General of Police a free and unfettered power to reach his conclusion, relying on such data and information that he may deem fit in being satisfied that any particular person’s act is prejudicial to state security.

I have had fawhinmi privilege or reading in draft the judgment fawehimmi delivered by my learned brother, Ogundare. Whether the Court of Appeal was right in remitting the case back sic to the trial court to consider the consequences of the detention of the respondent for the period of four days not covered by the detention order.

It is axiomatic that the Decree ousting the jurisdiction of the court is superior to the Constitution. As a result, the rights and obligations therein covered wbacha the said Charter became fully and legally enforceable in Nigeria as any other municipal or domestic law of the land.


There is therefore no justification for over-simplification of a treaty in terms of a contract. There is obvious contradiction there between that finding and this order.

It is quite clear to me that there was an obvious oversight on the fawehinm of the law-maker in amending Decree No. This issue which is respondent’s Issue No.

I shall tackle the points raised under the preliminary objection seriatim. This much, the cross-appellant’s counsel readily concedes in his brief of argument. That at the time of the said arrest the applicant was not informed of the offence he had compiled.

Nor also is the validity of another statute to be necessarily affected by the mere fact that it violates the African Charter or any other treaty, for that matter- see: Whether it is permissible for Nigeria which company to and have adopted that African Charter on Human and Peoples’ Rights to. Thus the coup d’etat of December and the Constitution Suspension and Modification Decree of put into abeyance the Fundamental Rights in the Constitution, which as I have said earlier is a forerunner of the adoption of the Charter and of course the Charter itself by implication.

It is counsel’s further submission that municipal law does not recognize. The principle in Liversidge case was applied in many Nigerian cases where the jurisdiction of courts of law had been muzzled by the inclusion of ouster clauses in statutes.


Constitution Suspension and Modification Decree As from the commencement of this G, the provisions of the African Charter on Human and Peoples’ Rights which are set out in the schedule to this Act shall, subject as there under provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.

An ‘order’ as a subsidiary legislation must be seen as a statutory instrument, for example, S. Sometimes municipal statute on the same subject-matter like the treaty in issue is preferred by municipal courts.

As the Decrees of the Military regimes always contain ouster clauses to bar interference by the judiciary the judiciary made earlier skirmish in in Lakanmi’s case but the Military descended heavily on judiciary by Decree No.

In a reserved ruling given on fawehlnmi th day of Marchthe learned trial judge found.