Abacha v Fawehinmi (2000)

Case Title and Citation

General Sani Abacha and Others V Chief Gani Fawehinmi [2000] NGSC 3, (2000) 6 NWLR (Pt 660) 228 (Supreme Court of Nigeria)

Facts

In January 1996, Chief Gani Fawehinmi, a prominent Nigerian human rights lawyer, was arrested without a warrant at his Lagos residence by operatives of the State Security Service (SSS) and police. He was detained for four days without being informed of any charges, initially at the SSS office in Shangisha and later at Bauchi prisons. This occurred during the military regime of General Sani Abacha, a period marked by decrees that suspended parts of the 1979 Constitution of Nigeria and ousted judicial review of certain state actions.

Fawehinmi, through his counsel, filed an application at the Federal High Court in Lagos under the Fundamental Rights (Enforcement Procedure) Rules, 1979, seeking to enforce his fundamental rights as guaranteed under Section 31(right to personal liberty), 32(right to dignity) and 38 (freedom of movement) of the 1979 Constitution, as well as Articles 4, 5 , 6, and 12 of the African Charter on Human and Peoples’  Rights( Ratification and Enforcement) Act, Cap 10, Laws of the Federation of Nigeria 1990. He sought declarations that his arrest and detention were unconstitutional, an order of mandamus to compel his arraignment, an injunction against futher violations, and Ten Million Naria in  damages.

The respondents, including General Abacha, the Attorney -General, SSS , and Inspector -General of Police, raised a preliminary objection, arguing that the court lacked jurisdiction due to the State Security (Detention and Persons) Decree No. 2 of 1984(as amended) and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No.12 of 1994, which ousted judicial oversight of detentions authorized by the military government. The Federal High Court and Court of Appeal addressed the matter, leading to an appeal and cross-appeal to the Supreme Court.

Issues

The Supreme Court considered the following key issues:

1. Whether the African Charter on Human and People’s Rights, as domesticated through the African Charter (Ratification and Enforcement) Act, Cap 10, was enforceable in Nigeria and whether it’s provisions prevailed over conflicting military decrees.
2. Whether the ouster clauses in the State Security (Detention of Persons) Decree No.2 of 1984 and related decrees deprived the courts the jurisdiction to entertain Fawehinmis claims.
3. Whether the arrest and detention of Fawehinmi violated his fundamental rights under the 1979 Constitution and the African Charter.

Decision (Holding)

The Supreme Court unanimously held that:

1. The African Charter , as domesticated by the National Assembly in 1983,was part of Nigerian law and enforceable by the courts, but it was subject to the 1979 Constitution and could not override military decrees that were the grundnorm during the military regime.
2. The ouster clauses in the State Security (Detention of Persons) Decree No. 2 of 1984 and Decree No. 12 of 1994 were valid and effectively barred the courts from reviewing Fawehinmis detention, as these decrees suspended Chapter IV of the 1979 Constitution(fundamental rights) and the African Charter to the extent of any inconsistency.
3. Fawehinmis arrest and detention, while prima facie a violation of his rights, could not be challenged due to the ouster clauses, and thus the court lacked the jurisdiction to grant the reliefs sort.

Reasoning (Rationale)

The Supreme Court’s reasoning was grounded in Nigeria’s dualist approach to international law and the peculiar legal framework of military governance.  On the first issue, the Court, per Ogundare JSC, affirmed that under section 12(1) of the 1979 Constitution (retained in the 1999 Constitution), international treaties like the African Charter required domestication to have the force of law. The African Charter(Ratification and Enforcement) Act, Cap 10, enacted in 1983, incorporated the Charter into Nigerian law, making it’s provisions enforceable to the same extent as domestic statues. However, the Court clarified that the Charter’s status was not superior to the Constitution or military decrees, which were the supreme law during the Abacha regime.

On the second issue, the Court addressed the ouster clauses. The State Security (Detention of Persons) Decree No. 2 of 1984 explicitly suspended Chapter IV of the 1979 Constitution for detentions authorized by the Inspector -General of Police or military authorities. The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 12 of 1994 further reinforced the supremacy of military decrees over all other laws, including the African Charter. The Court, per Iguh JSC, held that while the Charter remained in force, any provisions inconsistent with these decrees were void to the extent of inconsistency. The absence of express repeal on the suspension of the Charter in the decrees was immaterial, as the decrees’ ouster clauses were clear and unambiguous.

On the third issue, the Court acknowledged that Fawehinmis arrest without a warrant and detention without charges violated the principles of natural justice and the rights enshrined in both the Constitution and the African Charter. However, the ouster clauses stripped the courts of jurisdiction to intervene. The Court adopted a positivist approach, prioritizing the legal framework established by the military regime over equitable considerations, a stance critiqued for undermining human rights protections.

A notable point in the cross-appeal was the issue of General Abacha’s  inclusion as a party. The Court of Appeal had observed, per Pats- Acholonu JCA, that section 67 of the 1979 Constitution granted immunity to The Head of State. The Supreme Court upheld this, striking out Abacha’s name from the suit, reinforcing the constitutional protection of executive immunity during military rule.

Conclusion/Outcome

The Supreme Court dismissed Fawehinmis appeal, upholding the respondents preliminary objection that the Court’s lacked jurisdiction due to the ousters clauses. The cross-appeal succeeded in part, with General Abacha’s  name struck out due to his immunity. Fawehinmis claims for declarations, mandamus, injunction, and damages were not granted, leaving him without judicial remedy for his detention. The decision effectively validated the military’s use of decrees to suspend fundamental rights and oust judicial oversight.

Significance

The Abacha v Fawehinmi case is a landmark in Nigerian constitutional and human rights law, with enduring implications for the interplay between international treaties, domestic law ,and military governance . It’s significance lies in several areas:

1. Domestication of International Treaties: The case clarified the dualist approach to International law in Nigeria, affirming that treaties like the African Charter must be enacted by the National Assembly to be enforceable. This principle remains relevant under Section 12 of the 1999 Constitution, guiding the application of international human rights instruments in Nigeria.
2. Limits of Judicial Power Under Military Rule: The decision exposed the vulnerability of judicial independence during military regimes, where ouster clauses rendered courts powerless to protect fundamental rights. It highlighted the tension between legal positivism and human rights advocacy, as the Court prioritized the military’s legal framework over equitable considerations.
3. African Charter’s Status: While affirming the Charter’s enforceability, the case underscored it’s subordination  to military decrees, raising questions about the effectiveness of international human rights protections in authoritarian contexts. This has spurred scholarly debate on the need for constitutional safeguards to prevent such subordinations.
4. Human Rights Advocacy: The case immortalized Chief Gani Fawehinmis role as a fearless advocate for human rights, demonstrating the risks faced by activists challenging oppressive regimes. It also galvanized calls for democratic reforms, contributing to Nigeria’s transition to civilian rule in 1999.
5. Critique of Legal Positivism: The Court’s positivist stance-upholding ouster clauses despite their human rights implications – has been widely critiqued for enabling state impunity. Scholars argue that the decision could have adopted a more purposive interpretation to protect fundamental rights, as seen in later cases like Alhaji Mujahid Dokubo-Asari v Federal Republic of Nigeria[2007] 12 NWLR (Pt 1048) 320, where courts showed greater willingness to limit ouster clauses.

In a broader context, the case serves as a cautionary tale about the fragility of constitutional protections under authoritarian rule and the need for robust legal frameworks to safeguard human rights. It’s lessons continue to inform Nigeria’s political and legal discourse,  particularly in debates over judicial independence and the enforcement of international human rights norms.

References

• General Sani Abacha and Others V Chief Gani Fawehinmi [2000] NGSC 3,(2000) 6 NWLR(Pt 660)
• Constitution of the Federal Republic of Nigeria 1979, S12(1), S67.
• African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10, Laws of the Federation of Nigeria 1990.
• State Security (Detention of Persons) Decree No.2 of 1984(Nigeria).
• Federal Military Government (Supremacy and Enforcement of Powers ) Decree No.12 of 1994 (Nigeria).
• Edeh Samuel Chukwuemeka,’Abacha v Fawehinmi: Fact Summary, issues and Judgement of Court ‘ (Bscholarly,5 May 2022) https://bscholarly.com/abacha-v-fawehinmi  accessed  16 April , 2025.
• Friday Iloh,’ Abacha v Fawehinmi Corrected ‘( Academia.edu, 11 April, 2019) https://www.academia.edu  accessed 16 April, 2025.
• Alhaji Mujahid Dokubo-Asari v Federal Republic of Nigeria [2007] 12 NWLR (Pt 1048) 320.