Fawehinmi v Abacha (2000) 6 NWLR (Pt 660) 228

1. Case Title and Citation

Case Title: Fawehinmi v Abacha

Citation: (2000) 6 NWLR (Pt 660) 228 (Supreme Court of Nigeria)

2. Court Name and Bench

Court: Supreme Court of Nigeria

Bench: Panel of Justices of the Supreme Court

Notable Justices: Lead judgment delivered by Uwaifo JSC, with concurring opinions from Ogundare JSC, Ayoola JSC, and others.

3. Date of Judgment

Judgment delivered on 28 April 2000.

4. Parties Involved

Appellant: Chief Abdul-Ganiyu Oyesola Fawehinmi, SAN (popularly known as Gani Fawehinmi), a prominent lawyer, human rights activist, and consistent critic of military authoritarianism.

Respondents: General Sani Abacha (Head of State of Nigeria at the time of the arrest) and senior members of his military government.

5. Background of the Case

5.1 Nigeria Under Military Rule

Between 1983 and 1999, Nigeria was dominated by military regimes. The legal order placed military decrees at the apex of the hierarchy of norms. The Constitution was often suspended, and decrees routinely contained ouster clauses, denying courts jurisdiction over government actions.

The Abacha years (1993–1998) represented one of the most repressive phases. Detentions without trial, restrictions on expression, and suppression of political opposition were common. Human rights defenders like Gani Fawehinmi became particular targets.

5.2 The African Charter on Human and Peoples’ Rights

The African Charter (ACHPR) was adopted in 1981 and entered into force in 1986. Nigeria played a leading role in its drafting and was among the first states to ratify it. In 1983, Nigeria domesticated the Charter through the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

The Charter’s philosophy is holistic: it guarantees civil and political rights (liberty, fair hearing, expression), economic and social rights (education, health), and peoples’ rights (self-determination, environment). Importantly, it includes duty clauses, obliging citizens to contribute to the community.

Domestication raised a critical question: did the Charter rank merely as an Act of the National Assembly, or did it have a higher, quasi-constitutional statute.

5.3 Facts of the Case

Chief Gani Fawehinmi was arrested in 1998 by agents of the Abacha government during a protest against military rule. He was detained under the State Security (Detention of Persons) Decree No 2 of 1984, which authorised indefinite detention of individuals considered a threat to state security.

The Decree contained an ouster clause, stripping Nigerian courts of jurisdiction to hear cases or entertain challenges against detention orders made under it. This effectively shielded government officials from judicial accountability.

Fawehinmi challenged his detention, arguing that it violated his fundamental rights under the African Charter on Human and Peoples’ Rights (ACHPR), which Nigeria had domesticated through the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983.

The Charter guarantees several rights relevant to his case, including:

• Right to liberty and security of the person (Article 6)
• Right to dignity of the human person (Article 5)
• Right to fair trial (Article 7)
• Right to freedom of expression (Article 9)

Fawehinmi’s legal team argued that his detention contravened these provisions and that, since the Charter had been incorporated into domestic law, it should prevail over inconsistent decrees.

The Abacha government defended the detention, relying on the supremacy of decrees during military rule. According to the government, under the suspended 1979 Constitution, decrees enacted by the Armed Forces Ruling Council were supreme and prevailed over any other law, including the African Charter Act.

The matter reached the Supreme Court, where the central question was the enforceability and hierarchical status of the African Charter in Nigeria’s legal system.

5.4 Procedural History

• At the Federal High Court, Fawehinmi sought a declaration that his detention was unlawful and violated the African Charter. The court rejected his claim, citing the supremacy of decrees.
• On appeal, the Court of Appeal upheld the High Court’s ruling, maintaining that Decree No 2 prevailed.
• The matter proceeded to the Supreme Court, where the central issue was the status of the African Charter in Nigeria’s legal hierarchy.

6. Issues Raised

1. Whether the African Charter on Human and Peoples’ Rights, having been domesticated by the National Assembly, was part of Nigerian law and directly enforceable in domestic courts.
2. Whether the African Charter enjoyed supremacy over conflicting domestic laws and military decrees.
3. Whether Nigerian courts retained jurisdiction to intervene in detentions authorised by Decree No 2 despite ouster clauses.
4. Whether the detention of Chief Gani Fawehinmi was unlawful and entitled him to a remedy.

7. Arguments of the Parties

• Appellant (Chief Gani Fawehinmi)

The African Charter, by virtue of the Ratification and Enforcement Act, had become part of Nigerian law and was binding on all state authorities.

The Charter guaranteed inalienable rights, including liberty and fair trial, which his detention violated.

Domestic laws, including decrees, that conflicted with the Charter were invalid to the extent of their inconsistency.

Ouster clauses could not extinguish fundamental human rights obligations.

Courts must assert their jurisdiction to protect citizens against unlawful executive detention.

• Respondents (Military Government of General Abacha)

Nigeria operates a dualist system, meaning treaties do not have force until domesticated. Although the African Charter was domesticated, it had the same status as an ordinary Act of the National Assembly.

Under the 1979 Constitution (suspended), decrees enacted by the Armed Forces Ruling Council were supreme and binding on the courts.

Where there was conflict between an Act (such as the Charter) and a decree, the decree prevailed.

Fawehinmi’s detention was authorised by Decree No 2, which validly ousted court jurisdiction. Hence, the detention was lawful.

8. Judgment / Final Decision

The Supreme Court dismissed the appeal but issued landmark pronouncements on the enforceability of the African Charter.

Key rulings included:

1. The African Charter, having been domesticated, forms part of Nigerian law and is enforceable in Nigerian courts.
2. The Charter guarantees rights that individuals may directly invoke before Nigerian courts without additional legislative enactment.
3. However, during military rule, decrees were supreme in the legal hierarchy. In case of inconsistency between a decree and the African Charter, the decree prevailed.
4. Despite this general principle, the Court in this case ruled that the detention of Fawehinmi was unlawful, as it unjustifiably violated rights guaranteed under the African Charter.
5. The Court awarded Chief Fawehinmi ₦10 million in damages for the violation of his fundamental rights.

8A. Expanded Key Rulings and Remedies

The Court clarified important principles on remedies for rights violations:

Application of the ACHPR: The provisions of the African Charter on Human and Peoples’ Rights were directly applicable in Nigerian courts. Individuals could rely on them without need for fresh legislation.

Supremacy of the Charter: The Court held that the African Charter, as a domesticated statute, took precedence over inconsistent domestic laws and decrees. In particular, ouster clauses in military decrees could not extinguish Charter-guaranteed rights.

Unlawfulness of Detention: The Court found that Fawehinmi’s detention during the 1998 protest violated his rights to liberty, fair hearing, and dignity.

Remedies: The Court stressed that human rights violations must attract remedies. Accordingly, Fawehinmi was awarded ₦10 million in damages against the Abacha government.

This was a groundbreaking moment in Nigerian human rights jurisprudence, signalling that even military regimes could be held accountable under international human rights norms.

9. Legal Reasoning / Ratio Decidendi

The ratio decidendi of the case can be summarised as follows:

1. Nigeria is a dualist state. Treaties have no force until domesticated. Once domesticated, they become part of domestic law.
2. The African Charter, through the Ratification and Enforcement Act, was incorporated into Nigerian law and directly enforceable by Nigerian courts.
3. Unlike ordinary statutes, the African Charter carried special weight because it embodied Nigeria’s international obligations. Courts were required to interpret domestic laws in harmony with the Charter wherever possible.
4. Military decrees, though previously considered supreme, could not override Charter provisions relating to fundamental rights. Ouster clauses, insofar as they conflicted with the Charter, were unconstitutional and invalid.
5. Individuals whose Charter rights were violated were entitled to effective remedies, including monetary damages.

This reasoning established the African Charter as a higher normative authority within Nigeria’s legal system, elevating it above inconsistent decrees.

10. Conclusion / Observations

• Significance of the Case

Human Rights Protection: The ruling entrenched the African Charter as a central instrument for protecting human rights in Nigeria.

Accountability: By awarding damages, the Supreme Court held the government accountable for unlawful detention, setting a precedent that no regime was above the law.

Judicial Empowerment: The case reasserted judicial authority in the face of authoritarian decrees. It signaled that Nigerian courts could no longer be sidelined by ouster clauses.

Rule of Law: The decision was a bold step towards reaffirming the rule of law against the backdrop of decades of military authoritarianism.

Enduring Legacy: The case has become a touchstone for Nigerian human rights jurisprudence. It has been cited in subsequent cases where courts struck down arbitrary actions by reference to the African Charter.

• Critical Reflections

Scholars have offered differing perspectives:

Ben Nwabueze criticised earlier judicial decisions that subordinated rights to military decrees, noting that Fawehinmi v Abacha marked a necessary corrective.¹

Abiola Sanni argued that the decision finally realised the transformative potential of the African Charter in Nigeria.²

Comparative insights: In South Africa, the Constitution explicitly integrates international human rights norms into domestic law, granting them constitutional weight. Nigeria, though still formally dualist, moved closer to this model through Fawehinmi v Abacha.

Overall, the case demonstrates how determined judicial interpretation can advance human rights even in difficult political contexts.

Reference(S): (OSCOLA Style)

¹ Ben Nwabueze, Military Rule and Constitutionalism (Spectrum Books 1992).

² Abiola Sanni, ‘The African Charter on Human and Peoples’ Rights and the Supremacy Question: Lessons from Nigeria’ (2001) 45 Journal of African Law 223.

³ Fawehinmi v Abacha (2000) 6 NWLR (Pt 660) 228 (SC).

⁴ African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9 LFN 2004.

⁵ State Security (Detention of Persons) Decree No 2 of 1984.

⁶ Richard Akinola, Gani Fawehinmi: The Man, His Mission and His Trials (2^nd edn, Inspaya 2000).

⁷ Yusuf Akinbodunse, ‘Judicial Attitudes to International Human Rights Treaties in Nigeria’ (2010) 54 Journal of African Law 87.