International Law

 

A Bird’s Eye View Examination of Application of Treaties in Nigeria: A Caution Against Tactical Ambush  

 

 

By

D. F Atidoga PhD, BL, PG, Professor of Law, Faculty of Law, University of the Gambia, Banjul – Republic of the Gambia. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.  or This email address is being protected from spambots. You need JavaScript enabled to view it.                                                                        

Ibrahim Abdulkarim PhD, BL, Associate Professor, Faculty of Law, Ahmadu Bello University, Zaria - Nigeria                                                                    

 

A.D Opaluwa, LLM, BL, Lecturer, Faculty of Law, Kogi State University – Nigeria.

             

                                                         

Abstract

 

The operation of treaty-based laws and the prominence it has acquired from the twentieth century calls for the understanding of the intricacies, dynamics and the grip of its persuasive force, in the face of the existence of the fierce fisted grip of domestic laws. The appreciation of the relationship between the persuasively compelling grip of treaty-based laws and the fierce fisted grip of domestic law may assist in resolving the aged long problem in the battle of supremacy for placement in the hierarchy of legal norms and eminence in the application of treaty-based laws. Consequently, this paper examines the relationship of International Law which is predominantly treaty driven and domestic legislation, with a view to determine the sphere of operation of both laws and their placement in the equation of legal norms in Nigeria. The paper observed that both laws have their domain of operation, which is determinable by the theories of monism and dualism. Most importantly, the paper also found that the application of treaty-based laws and its cadre in Nigerian legal geometry is a function of state recognition, accorded to a treaty, by the instrumentality of state practice and the recognizing potency of domestic law. The paper amongst other recommendations recommends that, there should exist in Nigeria a clear-cut legislative enactment not only defining the place of the Constitution in hierarchy of legal norms, but also definitely stating the place of a domesticated and undomesticated treaties vis-à-vis a domestic legislation. This will go a long way to prevent the confusion brought about by conflicting court decisions.  By so doing, application of international treaties will be made easier and devoid of any suspicion of tactical ambush.

 

Keywords: Treaty, International law, Domestic Law, Application, Nigeria.

 

 

Introduction

 

Before the 19th century, there exists total primacy of municipal law over international law. This might be because of the much cherished and elevated status of the doctrine of State Sovereignty, which was observed to have created a situation of no concern for the rights of individuals in international law.[1] “Virtually all matters that today will be classified as human rights were at that stage universally regarded as within the internal sphere of national jurisdiction”.[2] It was rightly noted that, the total submission to the claws of the customary norm of sovereignty of state has caused unprecedented agony to the quest for institutionalization and promotion human rights virtues. [3] State sovereignty and the primacy of domestic law on human rights issues was said to have reached its peak in the 1930s and 1940s. The exploitation of the concept created a flourishing domain for oppressive and tyrannical regimes, while it also rendered world principalities of democracy impotent and bye standers.[4]

 

The criminalization of some awful inclinations and the evolution of democracy as a recognized form of governance and its pride as a peremptory norm of international law have changed the tide. Now, any violation of rights of citizens by a state amounts to a breach of international human rights law and international criminal law.[5] However, it must be stated that international law is predominantly a treaty-based law. Aside from customary norms of international law which has evoked a contentious argument of its binding on all civilized nations even without any treaty obligation; all other treaty-based laws only impute moral obligation on states that are mere signatories the treaty. 

 

The problem which this paper seeks to resolve is the potency of international instruments of varying status and their operation in relation to our domestic legislation and the existing legal order. This raises a lot of issues on account of the relationship between international law and national law. Some of these issues include, whether the rules of international law embedded in treaties automatically apply as part of Nigerian domestic law; and whether the application takes precedence over national legislations and the Constitution. 

 

Consequently, this paper shall review the relationship between international law and municipal law, with a view of exploring the application of international legal standard in Nigerian domestic courts. It is equally with the view of determining the place of treaties in the hierarchy of legal norms in Nigeria, in the event of conflict with other laws and the Constitution. The paper also examines some challenges in the application of treaties in Nigeria. It concludes by highlighting major findings and making recommendations for effective regime of treaty application in Nigeria.

 

 

Relationship between International Law and Domestic Law

 

International law is no longer confined to only the domain of regulating interaction between states. Its scope has continued to expand beyond what it was; it is no longer limited to the conduct of warfare, statehood, state practices and diplomatic and consular relations. The gaze of international law has now focused further to the frontiers of health, education and economy. International law is now more than ever, concerned with individuals as subjects of international law.[6] In pursuit of this elaborate goal and purpose in favour of individuals; international law can only succeed if it builds a formidable relationship with municipal law, to the extent that individuals can activate the provisions of international law before national courts and protect their internationally guaranteed rights by the operations of domestic legal system.

 

In order to help international law to achieve its goals, every nation is expected to obey international law. While some countries make international law automatically operational as part of their domestic laws other countries like Canada and United Kingdom, provides for a situation that is akin to subjugation of international law to their own domestic law. This is achievable by the process of transformation and adoption which takes place after the legislative body of a state has re-enacted the provisions of international law into their domestic law. By this, international law only becomes potent by going through and passing the domestic acceptability test.[7] Oji rightly noted that, “the attitude of state in pursuit of implementation of international law in their domestic law is derived from the reflection of propositions adopted by different theorists regarding the basis of obligation in international law”.[8] While the voluntarism theory which situates the basis of obligation under international law to the consent of nations, which leads to dualism, the objective theory which ascribe the basis of obligation of international law outside the premise of human or state will favours monism. “A third, but somewhat unpopular theory created by German militarism brings about Nihilism”.[9]

 

Monism

 

Monists are said to see all law as the same. They see international law and domestic law two side of same coin pursuant to same purpose. However, the monists are of the firm stand that, where conflict ensued between international law and municipal law, international law should prevail.[10] The monist believe that international law and domestic law must b viewed as a clear manifestation of a single conception of law; the reason being that both laws are geared towards addressing the same subjects.[11]France and some other countries strongly believe in this theory.

 

Dualism

 

This theory articulates the view that international law and domestic law differ, based on the fact that, they are meant to regulate different issues. While international law regulates states interaction, domestic law operates within the confines of a state, and it regulates the relationship of citizens with one another and with the state or the government. Thus, both laws are said to have their separate scope of operation to the extent that none of the legal orders have the capability to create or alter the rules of the other.[12] Dualism is said to have the greatest influence in the19th century. The dualists believe that there may be between the two separate and self-contained laws, but in the event of such contact and ensuing conflict, each law has primacy in its own area, international law at the international and domestic law at the domestic level.[13]

Dualism up holds the fact that international instruments cannot apply directly in domestic courts such international instrument must first of all undergo a process of specific adoption and get incorporated into domestic law before its rules and principles can find expression in domestic courts. This process brings about the transformation of an international instrument or treaty into national law before its provision can apply in domestic courts.[14]Ladan observed that: “it is only this process of transformation which validates the extension to individuals of the rules laid down in treaties”.[15] For instance, by the provision of section 12, Constitution of the Federal Republic of Nigeria 1999,[16] a treaty has to be enacted into law by the National Assembly to ground its applicability in domestic domain. In Nigeria, if the treaty relates to a matter that concerns the operation of state governance, it has to be ratified by a majority of the States House of Assembly in the federation. This process of transformation of treaty into domestic law does not apply to customary rules of international law in Nigeria just as it is in Britain. This is because, customary rules of international law are deemed to be part of domestic law.[17]

 

Nihilism

 

This means to annihilate, to kill or to prevail over. It is a very unpopular theory, which is why a lot of scholars often tie their arguments to only Monism and Dualism. This theory was said to have appeared under the favourable condition created by German militarism, which was employed to serve its predatory interest.[18] It preaches absolute supremacy of domestic law over international law.

 

It must be stated that amongst the theories, some writers believe that, international jurisprudence seem to tilt in favour of Monism, asserting the primacy of international law. Lauterpacht, for instance, observed that, “a critical and realistic monism is fully alive to the realities of international life”.[19] This view according to Oji, “…tends to be in tune with contemporary realities, because monism will entail the survival of international law while the logic behind dualism would not only be subversion, but also a negation of international law”.[20] It is therefore on the basis of the foregoing, that in international law, a state cannot plead the provision of its domestic law as a defence for violation of international obligation before an international court or tribunal. In Alabama Claims Arbitration,[21] the United States succeeded in its claim of damages against Britain for breach of its obligation as a neutral party during the American civil war. It was held that “a British legislation absolving Britain from responsibility cannot be projected as a defence for breach of Britain’s international obligation”. Britain was consequently held liable.[22]

 

Even though some scholars like Lauterpacht and Oji believe that international disposition is in favour of monism, and dualism is said to be often seen as a weapon of subversion and negation of international law in our contemporary times; it must be emphatically stated that, this is not true of dualism. The practice of dualism seems to be a better disposition than monism. This is because dualism allows each law to thrive at its own plane. The fusion of both law by monism, is not good because there is need for clear demarcation of the two laws. This is what is in vogue now. The primacy of international law is only true in relation to customary international law and municipal law. Once there is a treaty, the concept of monism will give way. The practice of dualism especially in some African and other third world countries may be borne out of the desire of the people to sustain some of their cultural practices, norms and values, that might be eroded by the tempest pressure of free-flowing international human rights instruments. The practice of dualism in this regard is to monitor and prevent the influx of international law that may be against their cultural practices, norms and values.

 

 

Application of International Law in Nigerian Domestic Courts

 

In the words of Zou Keyuan, “the effectiveness of international law depends on its application and enforcement by nation-states, including those within the domestic domain”.[23] The application and effect of international law in Nigeria is differently clothed, depending on the nature of international law that is sought to be implemented or the stand of the international instrument which effect on Nigerian domestic law is sought to be understood. The application and effect of customary rules of international law in Nigerian domestic courts is very different from the application and effect of treaty based laws in Nigeria. While the effect of customary rules of international law is precise and sacrosanct, the effect and extent of application of a treaty law is dependent exclusively on the commitment of the implementing state to the treaty in question., whether the treaty is one that is not ratified or one that is ratified but not domesticated or one that is ratified and domesticated by Nigeria.

 

Application of Customary International Law

 

In the context of customary international law, Nigeria entirely adopted the disposition of England in its application in her domestic sphere. Most countries actually adopts this particular thinking; which is to the effect that customary international law are deemed to be automatically incorporated into domestic law and consequently, enforceable in domestic courts and tribunals. Wallace described this approach as “…essentially…a monistic approach to customary international law”.[24] The British view on this was said to have been best presented by Lord Alverstone in the West Rand Central Gold Mining Co. case:[25]

 

It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions for which doctrines of international law may be relevant. But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence which must show either that the particular proposition put forward has been recognized and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized state would repudiate it…that the law of England, ought not to be construed so as to include as part of the law of England opinion of text-writers upon a question as to which there is no evidence that Great Britain has ever assented, and afortiori if they are contrary to the principle of her laws as declared by her courts.[26]

 

Lord Alverstone in this decision of the English Court gave a clear manifestation of the thinking of England on the applicability of customary international law in British courts. A disposition which we earlier observed as being the position under Nigerian law. Lord Alverstone emphasized the fact that global recognition and acceptance of customary international law is the basis for its applicability as part of English law in English courts. This position of English law in respect of customary rules of international law have consistently been re-echoed in subsequent decisions of the English courts. For instance, Lord Macmillan in The Cristina Case,[27] held that “national courts must acknowledge the fact that customary international law is part of domestic law upon been satisfied that such custom had the hallmark of acceptability and consent.”[28] In Chung Chi Cheung v. The King,[29] Lord Atkins stated thus:

It must always be remembered that, so far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our domestic law. There is no external power that imposes its rule upon our code of substantive law and procedure. The courts acknowledge the existence of a body of rules which nations accept amongst themselves on any judicial issue they seek to ascertain what the relevant rule is, and having found it, they will it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.[30]

 

In re-affirming this position, Lord Denning in Ihakrar v. Home Secretary,[31] said:

 

“In my opinion, the rules of international law only become part of our law in so far as they are accepted and adopted by us”.[32]

 

Three years later, Lord Denning was again on board in Trendax Trading Corporation v. Central Bank of Nigeria,[33] however, in this case Lord Denning accepted that the principle of incorporation was correct, but went further to state that the doctrine of stare decises does not apply to international law. If a court is satisfied that the rule of international law has changed it can go ahead and effect the change by its decision without waiting for the House of Lords to do so.[34]

 

In similar fashion, the Supreme Court of United States of America has held that customary international law is an integral part of the United State’s law and must be ascertained and administered by courts of justice of appropriate jurisdiction.[35]In Nigeria, conflict between state’s domestic law and her international obligation does not affect the effectiveness of that law within the territory of that state. Thus, a domestic legislation that runs contrary to international law cannot for that reason be invalidated. “The internationally unlawful and domestically lawful act may only be denied recognition by other state, and consequently denied external relevance.”[36] This may explain the reason why Nigeria often avoids her international obligation to implement some international agreement within her state boundaries.[37]

 

Section 1 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) declared the supremacy of the Constitution and asserted that any law that is inconsistent with its provisions shall be null and void to the extent of such inconsistency. In the face of this provision, the question will be that, what will be the treatment of customary international law that is inconsistent with the provision of our constitution? Oji, suggested that customary international law should be subjected to a test of validity and repugnancy like our local customary law for it to be applied in our domestic law, and that the Nigerian policy consideration should equally be emphasized in the validity test of customary international law.[38] This position projected by Oji is to say the least, very far away from dualism. Nigeria will then be said to project the dominance of domestic law very close to the domain of nihilism. Oji rightly contended further that it only behoves on every peace loving country to take steps to implement international customary law, as derogation within state boundaries may occur, without any redress mechanism.[39] It means therefore that in Nigeria, within her boundaries application of customary rules of international law is more of a moral obligation.

 

 Application of Treaty Based Laws

 

The application of international treaties and their effect on Nigerian domestic law, as we have often stated is dependent on certain facts consistent with the level of prominence accorded to such a treaty by its ratification status. The issue of implementation of a treaty is strictly at the premise of domestic law. However, the laws of the Federation of Nigeria, provided for classification of treaties. It emphasizing that the law making treaties, which have the effect of altering or modifying existing legislation or which affect the legislative powers of the National Assembly must be enacted into law.[40] However, treaties that borders on mere agreement on financial, political, social matters including transfer of technology needs to be ratified,[41] while those which borders on agreement of mutual exchange of cultural and educational facilities need not be ratified.[42] The pre-occupation of this work is the law making treaties.

 

 Instruments not ratified by Nigeria

 

These are instrument or treaties that Nigeria is not a party to. This means that Nigeria has not signed or acceded to the instrument or done any other act depictful of ratification. What will be the effect of a treaty not ratified by Nigeria on her domestic law? This researcher knows no any situation where such question was posed for determination of any court in Nigeria. However, it is doubtful if any such instrument has any legal efficacy or could invest Nigeria with any legal right or obligation.[43] It does not totally mean that a treaty which has not been ratified by Ni geriais without any importance. Bakar, J in the New Zealand case of Bird’s Galore Ltd v. A.G. &Anor[44] stated that, an international instrument that is not acceded to by New Zealand, can be looked at by the court on the basis that in the absence of express words, parliament will not work against it. In like manner, the Botswana Court of Appeal in A.G Botswana v. Unity Dow[45] held that, where a state is not a party to an international instrument, such an instrument can serve as an aid for the interpretation of domestic law, or the construction of the Constitution if such international instrument purports to or by necessary implication creates an international regime within international law, which is recognized by vast majority of states. By these decisions of New Zealand and Botswana, instruments not ratified by Nigeria may just simply have some import; this however is not binding but highly discretionary; such treaties must be respected to the extent that, it does not go contrary to any law in Nigeria. For example, it is instructive to note that the 1948 Convention for the Prevention and Punishment of the Crime of Genocide (Genocide Convention) is not ratified by Nigeria. The effect is that Nigeria does not have any treaty obligation there. However, Nigeria can respect such treaty if it is harmless.

 

 

 Instruments Ratified by Nigeria but not Domesticated

 

A treaty ratified by a state becomes binding on that state at the international level. This is predicated on the Latin Maxim pactum sunt servanda. “A state party to an international instrument is under obligation to ensure that its domestic law is in conformity with its international obligations.”[46] This principle drives further away from ordinary law or legislation to the supreme law of a state. Consequently, “a state cannot rely on the provisions of its constitution to avoid its treaty obligation.”[47] The failure of a state to incorporate international law into its domestic law cannot affect the states international obligation created by the treaty. These principles only operate at the international domain and do not affect the operation of domestic law before a domestic court.[48]

 

An agreement mindfully entered by Sovereign States in form of a treaty,[49] is usually executed on behalf of the state by the executive arm of government which stands as the embodiment and representation of state sovereignty. Consequently, if treaties which were executed by the executive arm of government are to become enforceable in domestic courts without any other legislative act, then by implication, the executive would have taken over the law making powers of the legislature by making laws for the country.[50] This position was broadly appreciated by Lord Atkin in Attorney-General of Canada v. Attorney-General of Ontarior[51] where the law Lord said:

 

…within the British Empire, there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty dully ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day decides to incur the obligations of a treaty, which involves alteration of law, they have to run the risk of obtaining the assent of parliament of the necessary statutes. To make themselves as secure as possible, they will often in such cases before final ratification seek to obtain from parliament an expression of approval. But it has never been suggested, and it is not the law, that such an expression of approval operates as law, or that in law it precludes the assenting parliament, or any subsequent parliament, from refusing to give its sanction to any legislative proposal that may subsequently be brought before it. …while they bind the state, as against the other contracting parties, parliament may refuse to perform them and so leave the state in default.[52]

 

Similar to the foregoing disposition of the English court, the Court of Appeal of Trinidad and Tobago in the case of Darrin Roger Thomas &Anor v. Cipriani Baptiste (Comm. of Prisons) &Anor,[53] affirmed that, international convention do not alter domestic law, except if such conventions are incorporated into domestic law by a transforming legislation. It therefore means that, the stipulation of an international instrument cannot effect any alteration to domestic law or deprive the subjects of domestic law of existing legal rights, unless such a treaty is enacted into domestic law under the authority of the legislation.

 

The position of Nigerian law is the same as in English law and as expounded by the decision of the Court of Appeal of Trinidad and Tobago. The Nigerian position is much straighter because it is supported by express constitutional stipulation. The Constitution of the Federal Republic of Nigeria provides that:

 

“No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”.[54]

 

The implication of this provision is that international instruments of whatever nature or description cannot apply in Nigeria upon mere ratification. For any such treaty to have the potency of law in Nigerian domestic sphere, it must be re-enacted in a body of a national legislation. The decision of the Supreme Court of Nigeria in African Reinsurance Corporation v. Fantaye,[55] is instructive on this position. The court held that treaties do not constitute part of the law of the land merely by virtue of their conclusion by the country. This is the position under Nigerian law. The more recent decision of the Court of Appeal in Mojekwu v. Ejikeme,[56] in error. In this case, the appellants are granddaughters of Reuben Mojekwu who died intestate, while the respondents are the sons of Mr. Reuben Mojekwu’s brother, who claimed they are by custom, entitled to inherit Mr. Reuben Mojekwu who had no direct surviving male descendant. The court sort for the application of Convention for Elimination of Discrimination Against Women (CEDAW).

 

The court held to the effect that mere ratification of CEDAW should provide legal teeth for its application in Nigeria. The effect of ratification of a treaty in Nigeria is only limited to vesting obligation on Nigeria at the international level, but not to the extent of having any effect on her domestic law. However, international human rights instruments ratified but not domesticated can be applied indirectly in Nigerian in an effective manner by infusing their normative content into constitutional and statutory standard.[57] This was perfectly done in the case of Mojekwu v. Mojekwu,[58]the facts of this case is similar to Ejikeme’s case. The appellant Mr. Augustine Mojekwu, instituted an action against the respondent Mrs. Caroline Mojekwu claiming that under Ili-Ekpe custom, he isentitled to inherit the property of the respondent’s deceased husband, on the basis of the fact that, the deceased is his paternal uncle, who is survived by only the respondent and two female children. Niki Tobi made reference to the provision of Convention on the Elimination of All Form of Discrimination Against Women (CEDAW) in declaring a customary law which discriminates against women as repugnant to natural justice equity and good conscience. In applying the repugnancy test, the court used the internationally accepted standard for treatment of women as evidenced in CEDAW. This was different from what Niki Tobi did in Mojekwuv. Ejikeme,[59] in this case the court did not seek to apply the provision of CEDAW in Nigerian domestic court.

 

In some other countries, there is no need for transformation of an already ratified treaty before its provisions apply in domestic courts. Mere ratification ignites the flames of applicability in domestic courts. This usually relates to countries like France whose constitution or legal system cloths treaties with self-executing force, upon ratification.[60] In like manner, the United States Constitution stipulates that the United States Supreme Court shall be the Supreme Court of the land and the judges shall be bind by such treaty notwithstanding anything in the Constitution or laws of any other state.[61] This means that in United States, self-executing treaties have primacy even above the Constitution of United States. Non-self-executing treaties are the ones that required transformation by municipal legislative actions before their applicability in domestic domain. In Nigeria by the provision of section 12, Constitution of the Federal Republic of Nigeria 1999 (as amended) all treaties for all intent and purposes are non-self-executing. Self-executing treaties is a nomenclature that is unknown to Nigerian legal process. For instance, in Nigeria, the Rome Statute of International Criminal Court is ratified by Nigeria, but Nigeria did not go further to domesticate the instrument. The effect is that the instrument cannot find application in Nigerian domestic court.

 

Instruments Ratified and Domesticated by Nigeria

 

Before the much celebrated decision of the Supreme Court of Nigeria in the case of Abacha v. Fawehinmi,[62] Nigerian courts had been wallowing in a sense of no direction on the status and application of international treaties which have been translated into Nigerian domestic law for applicability in Nigerian domestic courts by the process of transformation. The courts seem to be confused on the applicable operational principle of international treaties at the domain of international law with the status of such treaties in relation to our domestic legislation before domestic courts.

 

This confusion was observed to be orchestrated by the passionate desire of Nigerian courts in the dark era of military regime to cub the excesses of so many draconian decrees with their ouster clauses, which oust the jurisdiction of the courts in entertaining any case relating to any act done pursuant to the decrees. In order to place the African Charter on Human and Peoples’ Right which has been domesticated by Nigeria outside the reach of Nigerian military government’s draconian decrees, the courts were faced with only the option of stumbling over and projecting the theory that international law is superior to domestic legislations.[63] In Oshivire v. British Caledonian Airways Ltd,[64] the Court of Appeal, Lagos Division held that international law is superior to domestic law in case of an ensuing conflict.[65] This decision became an anchor, which gave a flourishing ground for courts to resist ouster clauses in military decrees. This case was followed by the Court of Appeal in Chima Ubani v. Director of SSS,[66] and the case of Comptroller of Prisons & 2 Ors v. Adekanya & 27 Ors,[67] the court held to the effect that, courts should not shirk its responsibility to consider issues bordering on infraction of human rights of Nigerians as guaranteed by the African Charter under the guise that there is an ouster clause in a decree promulgated by the military government of Nigeria. The court further held that, on question of fundamental rights guaranteed by African Charter, the provisions of the Charter are superior to the decrees of Nigerian Federal Military Government.

 

These decisions which set out to water down the wild fire of ouster clauses in military decrees seem unmindful of the admonition of Wali JSC in Ibidapo v. Lufthansa Airlines,[68] where the Supreme Court said:

Nigeria like any other commonwealth country, inherited the English common law rules governing the municipal application of international law. The practice of our courts on the subject matter is still in the process of being developed and the courts will continue to apply the rules of international law provided they are found not to be over-ridden by clear rules of our domestic law. Nigeria, as part of the international community, for the sake of political and economic stability, cannot afford to live in isolation. It shall continue to adhere to, respect and enforce both the multilateral and bilateral agreements where their provisions are not in conflict with our fundamental law (emphasis mine)

 

This admonition by Wali JSC which was earlier in time than the decisions of the Court of Appeal Oshivire,[69]Ubani,[70]and Adekanya,[71] did not support the superiority of international law over our domestic law. It only made international law of whatever nature subject to the fact that, it is not in conflict with our “fundamental law”.[72]Wali’s admonition did not however clearly specify what constitute our “fundamental law”. Whether our fundamental law includes all our legislations or it only refers to our constitution was not expressly made clear by Wali, JSC. Wali JSC might just simply mean that bilateral and multilateral treaties applicable in Nigeria are those that do not conflict with our constitution. The status of treaties in relation to other domestic legislations was not made clear by Wali’s admonition in Ibidapo v. Lufthansa Airlines.[73]

 

On the effect of treaties ratified and domesticated by Nigeria, the haziness surrounding its legal application in relation to other domestic legislations and the constitution was explored and settled in the highly celebrated case of Abacha v. Fawehinmi,[74] where these issues were considered in relation to the applicability of African Charter on Human and Peoples’ Right, which was ratified and domesticated in Nigeria by the instrumentality of African Charter on Human and People’s Rights (Ratification and Enforcement) Act.[75] It is very important to review the said case of Abacha v. Fawehinmi[76] which is often gleefully cited as representing the final statement on the effect of ratification and domestication of a treaty.

 

In the said case, the respondent in this case is Chief Gani Fawehinmi, a Lagos based lawyer and a social crusader. He was arrested at his residence by officers of State Security Service (SSS) on Tuesday the 30th day of January, 1996 at about 6.00 hours. His arrest was without warrant; and at the time of the arrest he was not informed he committed any offence. He was detained at SSS office, where he was subsequently moved to Bauchi prison as a detainee. The arrest of the respondent was done pursuant to a detention order dated 3rd day of February, 1996 duly endorsed by the Inspector-General of Police.

 

Contesting the fact that his detention was unlawful, illegal and unconstitutional; the respondent filed an application at the Federal High Court, Lagos pursuant to Order 1 Rule 2(1), (2) and (6) and Orders 4 and 6 of the Fundamental Rights (Enforcement Procedure) Rules 1979, and the inherent powers and sanctions of the court as prescribed by the Constitution of the Federal Republic of Nigeria, 1979. After been granted his exparte application, the respondent filed a motion on notice for the relief sought, which inter alia includes the following:

 

(a)      A declaration that his arrest and detention is a violation of his fundamental rights guaranteed by the provisions of sections 31, 32 and 38 of the 1979 Constitution[77] and Articles 4, 5, 6 and 12 of the African Charter on Human and People’s Right (Ratification and Enforcement) Act,[78] and therefore illegal and unconstitutional.

(b)        An order of mandamus compelling the respondent to arraign the appellant before a court or tribunal as required by section 33 of the 1979 Constitution of Nigeria as preserved by Decree 107 of 1979 and Article 7 of the African Charter on Human and People’s Right (Ratification and Enforcement) Act.

 

The respondents in response to the motion on notice filed by the applicant (Chief Gani Fawehinmi) before the Federal High Court, filed a preliminary objection challenging the jurisdiction of the Federal High Court to entertain the case on the reason, inter alia, that by the combined effect of Decree No. 2 of 1984, and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 12 of 1984 and the Constitutional (Suspension and Modification) Decree,[79] the court is not competent to entertain the reliefs sought by Chief Gani Fawehinmi.

 

The Federal High Court, Lagos, struck out the suit. The court per Nwadwugwu J. held that, it lacked jurisdiction to entertain the matter. The court stated that, any law including the African Charter that is inconsistent with the provisions of Decree 107 of 1993 is void. The court further held that, Decree No. 2 of 1984 has ousted the jurisdiction of the court.

 

Dissatisfied with the decision of the trial Federal High Court, the applicant (Chief Gani Fawehinmi) appealed to the Court of Appeal. The Court of Appeal in partly allowing the appeal unanimously held inter alia, that:

 

(a)       The learned trial judge acted in error when he held that, the African Charter domesticated in Cap. 10 LFN, 1990 was inferior to the Decrees of the Federal Military Government;

(b)      The Decrees of the Federal Military Government cannot oust the jurisdiction of the court when properly called upon to do so in relation to human rights under the African Charter.

Both parties were dissatisfied and appealed to the Supreme Court of Nigeria.

Judgment of the Supreme Court

 

Issues formulated by the appellants before the Supreme Court includes, among others:

 

Whether the Court of Appeal applied the principle of international law correctly when it held that in signing the treaty on African Charter, Nigeria attempted to fulfill an international obligation which is voluntarily entered into and agreed to be bound and the government cannot be allowed to contract out its international obligations by local legislation.

 

Unanimously dismissing the appeal, and allowing the cross appeal, the Supreme Court held, inter alia, that an international treaty entered into by the government of Nigeria does not become binding, until such a treaty is enacted into law by the National Assembly. Before being enacted by the National Assembly, an international treaty has no force of law as to make its provision enforceable in our domestic courts. Where as in the case of African Charter,[80] a treaty is enacted into our domestic law, it becomes binding and our courts must give effect to it like all other courts falling within the judicial powers of the courts.

 

Furthermore, the Supreme Court agreed with the Court of Appeal that, Cap. 10 LFN, 1990 is a statute with international flavour and, thus, if there is any conflict between it and other statute, its provisions will prevail, based on the presumption that the legislature does not intend to breach an international obligation.[81] The court, however, warned that this should not be misconceived to mean that, the Charter is superior to the Constitution; nor also is the validity of another statute necessarily affected by the mere fact that, it violates African Charter or any other treaty. The court further held that, the mode of enforcement of the rights in the Charter is through Fundamental Rights (Enforcement Procedure) Rules or through any other mode of enforcement of human rights. The Supreme Court has thus, affirmed its earlier ruling in Ogugu v. State,[82] where it had held that, the human rights provision of the African Charter are applicable and enforceable in Nigeria through the ordinary rules of court in the same manner as the fundamental rights set out in Chapter IV of the Constitution.

 

The Supreme Court’s exposition in Abacha v. Fawehinmi, is a very relevant and very significant decision, which has paddled us half way to the shores of safety, away from the tumultuous wind of uncertainty, as to the effect and status of international treaty that has passed through the process of transformation vis-à-vis our domestic statutes and our Constitution. The conclusion derivable from this Supreme Court landmark decision is that:

 

(i)             Any statute with international flavour, like the African Charter on Human and People’s Right (Ratification and Enforcement) Act,[83] shall prevail over local statutes in case of any conflict, to the extent of the inconsistency.

(ii)            Any international instrument ratified and domesticated by Nigeria like the African Charter on Human and People’s Right is inferior to the Constitution of Nigeria.

(iii)               The validity of other statutes cannot be affected by the mere fact that it violates the African Charter, or any international instrument.

 

The foregoing conclusion of the Supreme Court of Nigeria is in tune with the position adopted by the Supreme Court of Cyprus in MalachtusToulla v. ChristodoulusArmefit&Anor,[84] where the court held that, the Convention on the Legal Status of Children born outside wedlock was vested with superior force to any domestic legislation except the Constitution of Cyprus. It must be however, be stated that, in Abacha v. Fawehinmi, there was a dissenting or minority judgments of three justices of Supreme Courtlead by Achike JSC, to the effect that an incorporated treaty cannot take prominence over any local statute; at best they occupy the same plane of prominence, amongst other observations.[85]

 

This supposedly clear safe landing proffered by the Supreme Court of Nigeria relation to the place of domesticated treaty and the Constitution, in Abacha v. Fawehinmiis now under siege by the recent decision of ECOWAS Court of Justice in SERAP (Socio-Economic Rights and Accountability Project) v. Federal Republic of Nigeria,[86] delivered on 14th day of December, 2012 where the court in an action seeking the enforcement of International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights, and the African Charter on Human and People’s Rights, for the people of Niger-Delta region of Nigeria, on their rights to healthy environment among others, held that, a domestic legislation of a state cannot prevail an international treaty or covenant, even if it is the Constitution of the State, once the concerned right for which protection is sought before the court is enshrined in an international instrument binding on a member state.[87]

 

The fact of the case is that, the plaintiff is a non-governmental organization registered in Nigeria. The first defendant is the Federal Republic of Nigeria, while the 2nd defendant is the Chief Legal Officer of the 1st defendant. The plaintiff contended that Niger Delta has enormously rich endowment in the form of land, water, forest and fauna, which have been subject to extreme degradation due to oil prospecting. Contending that, the Niger Delta region has suffered for decades from oil spills which consequently destroy productive soil and contaminates water. The plaintiff contended further that the Federal Republic of Nigeria has violated her obligation under the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and African Charter on Human and People’s Rights. The court held that the Federal Republic of Nigeria has violated Article 1 and 24 of African Charter on Human and People’s Rights and orders that the Federal Republic of Nigeria should take effective measure within the shortest possible time to ensure restoration of the environment of the Niger Delta; to take all measures that are necessary to prevent the occurrence of damage to the environment and to take all measures to hold the perpetrators of the environmental damage are accountable.

 

This decision of a regional court (ECOWAS Court of Justice) seems to give way to more confusion that may not be the position of Nigeria. This therefore, brings the question of efficacy and enforceability of such ruling, which seemingly runs contrary to Nigeria’s dualist disposition. The rights that the court set out to enforce were founded on instruments ratified by Nigeria, except African Charter which is equally domesticated. However, these rights were sought to be enforced at an international (sub-regional) court. Nigeria, not being a monist state, will not easily lean to accepting the supremacy of the said instruments over her Constitution. The position projected by ECOWAS Court of Justice seems to be dragging us to a new domain of confusion on the place of treaties in the hierarchy of laws in Nigeria.

 

The Place of Treaties in the Hierarchy of Legal Norms in Nigeria

 

Having examined the effect of different treaties of varying status in Nigeria and the consideration of decisions of courts in Nigeria in respect of treaties; it is disheartening to note that, the court’s decisions have no definiteness on the station of a treaty in the hierarchy of legal norms in Nigeria.  While the court’s decision in Oshevire v. British Caledonian Airways Ltd[88]  held that, a treaty simpliciter is above domestic legislation; a decision which completely ignores the provision of section 12 of the 1999 Constitution of Nigeria, which demands for the domestication of a treaty before its application in Nigeria. The decision in Abacha v Fawehinmi[89]placed an incorporated treaty, not an unincorporated one above a domestic legislation and below the Constitution.  However, this position of the Supreme Court was vigorously criticized. One of the criticisms was based on the principle of international law that stipulates the position of municipal law in international sphere. That is, a state cannot plead its municipal law in breach of international obligation.[90] It was further contended that “...until a sovereign power of a state is exercised to denounce an international treaty, it retains its international flavor and hovers above all municipal laws including the Constitution”.[91]

 

It is most respectfully submitted that the above position projected by Abugu is misguiding, this is consequent upon the fact that Nigeria has a dualist disposition, a disposition that believes in the sovereignty of the state and supremacy of national legislation over international law, hence, the need to domesticate treaties before their application and enforcement by Nigerian court. It must further be stated that, Article 27 of the Vienna Convention on the Law of Treaties was misconstrued by Abugu and his likes. The said Article 27 provides as follows: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. Same Article 27 further provides that, “the rule is without prejudice to Article 46. The provision of Article 46(1) of Vienna Convention on Law of Treaties have created an exception to Article 27 which is often gleefully cited by proponents of superiority of treaties. The import of the provision of the said Article 46(1) is that, a treaty can be violated if it concerns a rule of internal law of fundamental importance.

 

Upon domestication, a treaty becomes an integral part of the body of laws in Nigeria, irrespective of it international flavour, being subject to the supreme law of the existing legal order in Nigeria.[92]It must be stated that even though the decision in Abacha v. Fawehinmi[93] rightly projected the supremacy of the Constitution of Nigeria; the decision has however generated controversy and fanned the embers of confusion relating to the position of treaties vis a vis Nigerian national laws in the hierarchy of norms. The decision’s second arm was based on a seemingly unfounded proposition that legislation with international flavour takes precedent over other Nigeria domestic laws.  Most respectfully, this position of the Supreme Court is not supported by any established principle relating to the position of statutes in relation to one another. 

 

It is therefore respectfully submitted that the Constitution of the Federal Republic of Nigeria occupies the topmost domain in the hierarchy of legal norms in Nigeria. However, there is no clarity on the prominence of domestic statutes with international flavour and domestic statutes without international flavour. It is more uncertain because Nigeria is a dualist state which projects the prominence of domestic law in domestic domain over any international instrument, however high the international flavour it possess.  It is therefore safer to maintain that domesticated instruments enjoy same prominence in the hierarchy of laws in Nigeria.

 

 

Conclusion

 

In this paper, we have examined the application of treaties of varying receptive status in Nigeria. In the course of doing these, we highlighted the relationship between international law and domestic law in Nigeria, with emphasis on the application of treaties and their place in the Nigerian hierarchy of legal norms.

 

It was found that Nigeria in her international interaction maintained a dualistic disposition as oppose to monism or nihilism. It was observed that in Nigeria international law has primacy in regulating international affairs in international domain while domestic law has primacy in domestic sphere. It was observed that international law of whatever description cannot find application in Nigerian domestic court until it has undergone a transformation process by a municipal legislative enactment which translates an international treaty into an operational law in Nigerian domestic domain.

 

In this paper, it was also found that Nigeria has not ratified the Genocide Convention of 1948 and the consequential effect is that the treaty has no any hold on Nigeria. However, we have observed that, Nigeria has ratified the Rome Statute of International Criminal Court; which in its Article 16 adopted the provisions of Articles 2 and 3 of the Genocide Convention hook line and sinker; but has not domesticate it.

 

It was also found that, there is no definiteness or a clear cut clarity on the bindingness of international instrument on Nigeria, in view of the conflicting decisions in Fawehinmi v. Abacha[94]and the recent case of SERAP v. F.R.N.[95]while the decision in Fawehinmi emphasized the supremacy of the Constitution of the Federal Republic of Nigeria, placing it as first, in the hierarchy of legal norms; the decision in SERAP emphasized the fact that a  treaty acceded by Nigeria takes precedent over any other law in Nigeria including the Constitution. However, it was equally found that, an exception was created by Article 46(1) of Vienna Convention on Law of Treaties against the general rule in article 27. That a party to a treaty can violate same, if it affects her internal law of fundamental importance.

 

It was also found that, in English law as well as in Nigeria conflict between state’s domestic laws and her international obligation does not affect the effectiveness of that law within the territory of that state. Thus, a domestic legislation that runs contrary to international law, cannot for that reason be invalidated; the internationally unlawful and domestically lawful act may only be derived external relevance. It was also found that, haziness and gloom surrounds the place of treaty vis-à-vis domestic legislation in Nigeria; as decisions of courts to that effect seem    to be shrouded in confusion.

 

This paper recommends that Nigerian state should wake up to the realities of international crimes especially genocide by activating and completing the process of domestication of the Rome Statute of International Criminal Court and Genocide Convention of 1948 without further delay. The domestication of these treaties will go along way to provide sufficient domestic platform for prosecution of international crimes in general. This is very important especially at these trying times that Nigeria is engulfed in multi-dimensional crises, with diverse colorations of identity divides.

 

It is also recommended that, there should exist in Nigeria a clear cut legislative enactment not only defining the place of the Constitution in hierarchy of legal norms in Nigeria but also definitely stating the place of a domesticated and undomesticated treaties vis-à-vis a domestic legislation. This will go a long way to prevent the confusion brought about by conflicting court decisions. In line with the foregoing, it is recommended that, the decision in SERAP v. F.R.N which place a treaty above any domestic law including the Constitution of the Federal Republic of Nigeria should be discountenanced, as it is a decision in error in the context of Nigerian disposition, in view of the provision of section 12, CFRN, 1999 and article 46(1) Vienna Convention on Law of Treaties.

 

It is also recommended that Nigeria should be very careful at all times, as not to carelessly jump at any emerging treaty; without a diligent consideration of the effect of that treaty on her populace; taking into cognizance the socio-cultural peculiarities of the Nigerian people; she can ratify treaties and enter reservation for the provisions of the treaty she does not like. By so doing, she will not be found wanting in the discharge of her treaty obligations.

 

No doubt a nation can hardly survive as an Island in our globalized world. Socio-legal interactions are therefore inevitable in pursuit of global peace, security and protection of human values against the monsters of grave violation of human rights and criminality. However, these socio-legal interactions of our municipal legal system and international legal system must operate within clearly stipulated rules of engagement and mutual respect for each other. By so doing, application of international treaties will be made easier and devoid of any suspicion of tactical ambush.

 

 

 

 

 

 

 

 

Bibliography

 

Abugu, J.E.A. (2009) A Treatise on the Application of ILO Conventions in Nigeria, University of Lagos Press, Lagos.

Acheampong, K.A.(1994) “Our Common Morality under Siege: The Rwandan Genocide and the Concept of Universality of Human Rights”, Rev. Afr. Common & Peoples Rts.  Vol. 4.

Dakas, C.J.D.(2002) “Activism, Ignorance or Playing to the Gallery? Untying the Knots of the Jurisprudence of Nigerian Courts on the Domestic Application of International Human Rights Norms” in Dakas, C.J.D. (ed.) New Vista in Law Vol. 2 , Faculty of Law University of Jos.

Garner, B.A., (ed.) Black’s Law Dictionary, 9thedn., (U.S.A: Thomson Reuters, 2004)               

Keyuan, Z.(2010) “International Law in the Chinese Domestic Context”. Valparaiso University Law Review vol. 2

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Lauterpacht, H.(1970) International Law, Collected papers, Vol. 1.

Nwoke, F.C (2002) “The Concept of Domestic Jurisdiction in International Law Revisited” in Dakas, C.J.D. (ed.) New Vistas in Law, Vol. 2, Jos.

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Roberts, A.H. et al, (1993) Human Rights in Europe: A Study of European Convention on Human Rights, Manchester University Press, Manchester.

Shaw, M.N.(2005) International Law, 5thedn., Cambridge University Press, Cambridge, p. 252.

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Wallace, R.M.M..(2005) International Law, 5thedn., Sweet & Maxwell, London, p. 36.

Yerima, T.F. (2004) “The Relevance of Constitution in the Application of Human Rights Treaties in Domestic Forum: General SaniAbacha&Ors v. Chief GaniFawehinmi in Perspective” Fountain Quarterly Law Journa Vol. 1 , No. 1.

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[1]Oppeheim, L.H.(1905) International Law, cited in Yerima, T.F.(2010) “Still Searching for Solution: From Protection of Individual Human Rights to Individual Criminal Responsibility for Serious Violations of Humanitarian Law” ISIL Yearbook of International Humanitarian and Refuge Law, Vol. X, p. 41.

[2] Shaw, M.N.(2005) International Law, 5thedn., Cambridge University Press, Cambridge, p. 252.

[3]Yerima, op. cit., n. 1, p. 41.

[4]Acheampong, K.A.(1994) “Our Common Morality under Siege: The Rwandan Genocide and the Concept of Universality of Human Rights”, Rev. Afr. Common & Peoples Rts.  Vol. 4, p. 20.

[5] See: Nwoke, F.C.,(2002) “The Concept of Domestic Jurisdiction in International Law Revisited” in Dakas, C.J.D. (ed.) New Vistas in Law, Vol. 2, Jos, pp. 117-118.

[6] Wallace, R.M.M..(2005) International Law, 5thedn., Sweet & Maxwell, London, p. 36.

[7] Oji, E.A.(2010) “Application of Customary International Law in Nigerian Courts” NIALS Law and Development Journal, p. 156.

[8]Ibid.

[9]Ibid.

[10] Wallace, op. cit., n. 6, p. 37.

[11] Oji, op. cit., n. 7, p. 157.

[12]Dakas, C.J.D.(2002) “Activism, Ignorance or Playing to the Gallery? Untying the Knots of the Jurisprudence of Nigerian Courts on the Domestic Application of International Human Rights Norms” in Dakas, C.J.D. (ed.) New Vista in Law Vol. 2 , UniJos,  p. 400.

[13]Ladan, M.T.(2008) Materials and Cases in Public International Law,Ahmadu Bello University Press,Zaria,  p. 4.

[14]Ibid.

[15]Ibid.

[16]Cap. 23, LFN, 2004.

[17]Ladan, op. cit., n. 13.

[18] Oji, op. cit., n. 7, p. 156. See also Ladan, op. cit., n. 14, p. 5.

[19]Lauterpacht, H.(1970) International Law, Collected papers, Vol. 1,  p. 214 cited in Oji, op. cit., n. 8, p. 157.

[20] Oji, op. cit., n. 7, p. 158.

[21](1872) Moore Arbitrations p. 653.

[22] See also: Free Zones Case PCIJ Rep. Ser. A/B 46, p. 47; the Graeco Bulgarian Communities case (1930) PCIJ Rep. Ser. B.NO. 17, p. 32; The Case of Polish Nationals in Danzig (1932) PCIJ Rep. Ser. A/B No. 44, p. 24.

[23]Keyuan,Z.(2010) “International Law in the Chinese Domestic Context”. Valparaiso University Law Review,  Vol. 44, p. 935.

[24] Wallace, op. cit., n. 6, p. 40.

[25](1905) 2 K.B. at 391.

[26]Ibid., at 406-408.

[27](1938) A.C. 485.

[28]Ibid., at 490.

[29](1939) A.C. 160.

[30]Ibid., at 167-168.

[31](1974) Q.B. 684.

[32]Ibid., at 701.

[33](1977) Q.B. 529.

[34]Ibid., at 554

[35] The Paquete Habana case 176 U.S. 677.

[36] Oji, op. cit., n. 7, p. 159.

[37]Ibid.

[38]Ibid.

[39]Ibid.,p. 169.

[40] Section 3(1)(a) and 3(2)(a) Treaty (Making Procedure ETC) Act Cap T20, LFN, 2004.

[41] Section 3(1)(b) and 3(2)(b), ibid.

[42] Section 3(1)(c) and 3(2)(c), ibid.

[43]Osita, N.O.(2000)“Nigerian Courts and Domestic Application of International Human Rights Instruments” in Ibidapo-Obe, A. and Yerima, T.F., (eds.) International Law, Human Rights and Development,Ado-Ekiti: Petoa Educational Publishers,  p. 90.

[44](1989) 1 RC (Constl) 928 at 939.

[45](1998) 1 HRLRA 1.

[46] Roberts, A.H. et al, (1993) Human Rights in Europe: A Study of European Convention on Human Rights,Manchester University Press, Manchester, p. 25.

[47]Osita, op. cit., n. 43, p. 92.

[48]Ibid.

[49]Shaw, op. cit., n. 2, p.110.

[50]Ibid.

[51](1937) A.C. 328 at 346.

[52]Ibid.

[53]Cited in Osita, op. cit., n. 43, p. 93.

[54]Section 12, Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended).

[55](1986) 1 NWLR (Pt. 14) 113.

[56](2005) 5 NWLR, 402 at 439.

[57]Osita, op. cit., n. 43, p. 95.

[58](1997) 7 NWLR (Pt. 512) 283.

[59]Op. cit., n. 55.

[60] Art. 55 of the French Constitution of 1958 provides: “Treaties or Agreements duly ratified or approved shall upon publication have an authority superior to that of a domestic law”.

[61] Art. VI, Section 2, United States of America Constitution. See also: Art. 25 of the Basic Law of Federal Republic of Germany; Art.65 of the Dutch Constitution and Art.10 of the Italian Constitution 1947 which gives a treaty or customary international law constitutional status superior to national legislation.

[62] (2000) 6 NWLR (Pt. 660) 228-259.

[63]Osita, op. cit., n. 43, p. 99.

[64](1990) 7 NWLR (Pt. 163) 507.

[65]Ibid., at pp. 519-520.

[66](1999) 11 NWLR (Pt. 625).

[67](1999) 10 NWLR (Pt. 623).

[68](1997) 4 NWLR (Pt. 498) 124.

[69]Op. cit., n. 64.

[70]Op. cit., n. 66.

[71]Op. cit., n. 67.

[72] Op. cit.,  n. 68.

[72] (2000) 6 NWLR (Pt. 660) 228 – 259.

[72] Cap. 10 Laws of the Federation of Nigeria (LFN) 1990.

[72]General SaniAbacha Garner, B.A., (ed.) Black’s Law Dictionary, 9thedn., (U.S.A: Thomson Reuters, 2004) p. 744.

[73]Op. cit., n. 68.

[74] (2000) 6 NWLR (Pt. 660) 228 – 259.

[75] Cap. 10 Laws of the Federation of Nigeria (LFN) 1990.

[76]General SaniAbacha&Ors v. Chief GaniFawehinmi (2002) 2 SCNQR 618.

[77] Sections 31, 32 and 38 of Constitution of the Federal Republic of Nigeria (CFRN) 1979 are parimateria with sections 35, 36 and 41 CFRN, 1999 respectively.

[78] Cap. 10 (LFN) 1990.

[79] Decree No. 107, 1993.

[80] The African Charter on Human and People’s Rights (The Banjul Charter) was adopted in 1981. See O.A.U Doc. CAB/LEG/67/3 Rev. 5. The Charter came into force on October 21, 1986.

[81]Yerima, T.F. (2004) “The Relevance of Constitution in the Application of Human Rights Treaties in Domestic Forum: General SaniAbacha&Ors v. Chief GaniFawehinmi in Perspective” Fountain Quarterly Law Journal,Vol. 1, No. 1, p. 97.

[82](1994) 5 NWLR (Pt. 336) 1 at 25.

[83] Cap. 10 LFN, 1990.

[84](1987) 1 CLR 207.

[85]Abacha v. Fawehinmi (2000) 4 S.C. (Pt. 2) p. 98, Para. 15-20.

[86]ECW/CCJ/JUD/18/12.

[87]Ibid.,  para. 36.

[88]Op. cit., n. 64.

[89]Op. cit., n. 74.

[90]Article 27, Vienna Declaration on the Law of Treaties.

[91]Abugu, J.E.A. (2009) A Treatise on the Application of ILO Conventions in Nigeria, University of Lagos Press, Lagos, p. 16

[92] See Section 1, Constitution of the Federal Republic of Nigeria, 1999.[As amended]

[93]Op. cit., n. 74.

[94]Op.cit., n.74.

[95]Op.cit ., n.86.