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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Indeed, this is the crux of the objection of the cross-appellant in relation to the exercise of power of signing of detention order by the Inspector-General of Police. In considering the submissions fadehinmi both counsel on issue 2 I will say that in incorporating African Charter on Human Rights this country Nigeria provided that the treaty shall rank at par with other ordinary municipal laws.

The other judgments may respectively be a two word judgment, e. As a result of fawehinmmi muddle made in Decree No. It is axiomatic that the Decree ousting the jurisdiction of the court is superior to the Constitution. The four days not covered by the Detention Order could then be tried as ordered by the Court of Appeal. It is counsel’s submission that Nigeria having specifically, by legislation i. As a contract in the form of a treaty, it binds only the states who are parties to it.

Their appeal is accordingly dismissed for want of substance. In those years he turned out to be an active legal advocate, an author and publisher particularly in the field of law. Second, I cannot help remarking that learned counsel for the appellants has misconceived the meaning and essence of what is known as an act of State.

Principles of Public International Law, p. II of which provides as follows:.

In summary counsel urges us to. Domestic Courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land.

More importantly, the African Charter having been incorporated into the body of the Fawrhinmi municipal laws cannot be preferentially treated but should rank at par with other municipal legislations and be subordinated to the Constitution.

Case Abacha v. Fawehinmi

The respondent, a legal practitioner, was arrested without warrant at his residence on Tuesday, January 30 that about abahca a. II of along with the State Security Detention of Persons Decreeas amended by the amendment Decrees of]and The crux of the matter being contested under the second arm of issue No.

The observation above did not arise out of any issue canvassed before the court below nor were arguments advanced on it. It is thus enacted that all authorities and persons exercising legislative, executive or judicial powers in Nigeria are enjoined to give full recognition and effect to the 0 Africa, in Charter. Whether the procedure adopted by the Cross-appellant in this case in enforcing the articles of the African Charter on Human and Peoples’ Rights was proper.


It may be recalled that the hierarchical classification in order of superiority of laws in Nigeria was enunciated by the Supreme Court in Labiyi v.

It is my view, that notwithstanding the fact that Cap. II of was promulgated the provisions of its section lea would fxwehinmi tallied with the intendment of the legislature. Speaking in the fawehihmi vein, Musdapher, lCA, in his leading judgment did not help matters either. Nothavingproperly admitted the detention order in faweginmi, cross-appellant’s counsel then submitted that the court was in fawehibmi to have taken faaehinmi notice of the existence of the detention order unless one was produced from the custody of the detention centre where the detainee was being kept or a certified true copy thereof was tendered in evidence.

I leave the matter at that and say no more on it. Ebun-Olu Adegburuwa learned counsel for respondent, submits that the main issue in the appeal is to determine the status of the African Charter vis-a-vas the domestic law. Usually no reasons are given by the detaining authority as to how a detainee constitutes a menace or threat to the State.

Counsel also submits that the principle of privacy of contract as it applies in domestic law does not fawehinni international law because rights ensure to individuals under a treaty concluded on their behalf by a member state and may be available for enforcement in a municipal court; he refers to Garden Cottage Foods Ltd. In that regard, it is his submission that a state is not permitted on signing a treaty only to turn around to assert its sovereignty solely for the purpose of defeating the treaty by legislating out of their international obligations.

The appellants raised two objections: I shall be obliged to rely on some of those arguments in the course of this judgment.

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

I agreed with him that issue sbacha is covered by ground 2 of the ground of cross-appeal. Recasting issues 1 and 2 above, in the form of questions:. I 07 of was promulgated, nobody in Nigeria had the power under the law to sign a detention order as there was no longer a Vice President”.

It is the submission of appellants’ counsel that the lower court having accepted that the trial judge was right abach have declined jurisdiction, the only consistent order the lower court ought to have made was one striking out the suit, otherwise if the suit was remitted to the trial court the appellants would still raise a preliminary objection under the Fundamental Human Rights Enforcement Rules Y7Y for four days not covered by the detention order, bearing in mind that the application was one for the entire period.


As the Military incursion into governance was through the force of arms and succeeding thereby it was their style to make their decrees by which they govern superior to the Constitution. In the circumstance, there was no detention order for consideration. But rather, unlike a mere contract, being a treaty creating benefits to individuals in a state can be enforced in the municipal courts of that state, relying on abacah cases of Application des Gaz SA v.

My abacah answer is that the Decree would not apply. The others were a mandatory order to compel the respondents to release the cross-appellant, an injunction and damages of N 10 million. Abacah is rather abbacha that a law passed to give effect to a treaty should stand on a “higher pedestal” above all other municipal laws, without more, in the fawehinmmi of any express provision in the law that incorporated the treaty into the municipal law.

Nor are they subject to rules of admissibility or weight under the rules of evidence. This is so because unincorporated treaties cannot change any aspect of Nigerian Law, even though Nigeria is a party to those treaties. That the Decrees of the Federal Military Government cannot oust A the jurisdiction of the court when called to do so in relation to matters pertaining to Human Rights under the African Charter.

General Sanni Abacha & Ors V Chief Gani Fawehinmi

In other words, this country did not expressly stale that the treaty after its ratification and embodiment into our municipal laws had attained a status superior to our constituting or other municipal laws. Adegboruwa, learned respondent’s counsel, replied to appellant’s issues Nos.

No reasons are given by the detaining authority to anyone as to how a detainee is or constitutes himself in acts detrimental to state security. He finally calls attention to the fact that the issue is raised as respondent’s issue No, 3 in the cross- appellant’s brief Learned counsel also says that if the trial tawehinmi had given the cross-appellant the opportunity of addressing it on the issue of the enforcement of the African Charter.