Authored By: Anoghena Ogiogwa
University of Lagos
CASE TITLE & CITATION
- Full Name of the Case(with year) :General Sani Abacha & Ors v. Chief Gani Fawehinmi (2000)
- Official Citation : (2000) 6 NWLR (Pt. 660) 228
COURT NAME & BENCH
- Court : Supreme Court of Nigeria
- Bench Type : Full Panel of the Supreme Court
- Judges: Salihu Modibbo Alfa Belgore
Michael Ekundayo Ogundare
Uthman Mohammed
Anthony Ikechukwu Iguh\
Okay Achike
Samson Odemwingie Uwaifo
Akintola Olufemi Ejiwunmi
DATE OF JUDGMENT
28th day of April, 2000
PARTIES INVOLVED
APPELLANTS
- General Sani Abacha
- Attorney-General of the Federation
- State Security Service
- Inspector- General of Police
General Sani Abacha was the Head of State of Nigeria (1993 – 1998) and the leader of the military government at the time. He, along with other state security officials, represented the Nigerian military regime that detained and restricted the movements of Gani Fawehinmi
RESPONDENTS
Chief Gani Fawehinmi
Chief Gani Fawehinmi was a prominent Nigerian lawyer, human rights activist and Senior Advocate of Nigeria (SAN). He was known for challenging government abuses and defending citizen’s rights. In this case, he sued to enforce his fundamental human rights, claiming his arrest and detention by the military government violated the African Charter on Human and Peoples’ Rights
FACTS OF THE CASE
The respondent, a legal practitioner was arrested without warrant at his residence on Tuesday January 30, 1996 at about 6 a.m., by six men who identified themselves as operatives of the State Security Service (referred to as SSS) and policemen, and taken away to the office of the SSS at Shangisha Lagos, where he was detained. At the time of the arrest, the respondent was not informed of, nor charged with, any offence. He was later detained at Bauchi prisons.
In consequence, the he applied ex-parte through his Counsel, to the Federal High Court, Lagos, pursuant to the Fundamental Rights (Enforcement Procedure) Rules 1979 for the reliefs against the 4 respondents who are now appellants before us and shall hereinafter be referred to as appellants.
A declaration that the arrest of the applicant, Chief Gani Fawehinmi at his residence at 9A Ademola Close GRA, Ikeja Lagos on Tuesday, January 30, 1996, by the State Security Service(S.S.S.) or officers, servants, agents, privies of the respondents and /or of the Federal Military Government constitutes a gross violation of the applicant’s fundamental rights guaranteed under Sections 31, 32 and 38 of the 1979 Constitution and Articles 4, 5, 6 and 12 of the African Charter on Human & Peoples’ Rights (Ratification and Enforcement) Act Cap 10. Laws of Federation of Nigeria 1990 and is therefore illegal and unconstitutional.
Alternatively, An order of mandamus compelling the respondents to forthwith arraign the applicant before a properly constituted Court or Tribunal as required by Section 33 of the Constitution of the Federal Republic of Nigeria 1979 as preserved by decree 107 of 1993 and Articles 7 of the African Charter on Human and Peoples Rights’(Ratification and Enforcement) Act. (Cap. 10 Laws of the Federation of Nigeria) 1990.
An injunction restraining the respondents, whether by themselves or by their officers, agents, servants, privies or otherwise howsoever from further arresting, detaining or in any other manner infringing on the fundamental rights of the applicant N10,000,000.00 (Ten Million Naira) damages for the unlawful and unconstitutional arrest and /or detention of the applicant- Chief Gani Fawehinmi.
Leave having been granted; he applied by motion on notice for the said reliefs. On being served with the motion papers learned counsel for the appellants filed a preliminary objection to the effect that the respondent could not maintain action against the appellants on the ground that the Court lacked competence to entertain it. The reasons given for the objection were:
By a subsidiary legislation made by the Inspector-General of Police in exercise of the powers conferred on him by State Security (Detention of Persons) Decree No. 2 of 1984(as amended) and further by Section 4 of the aforementioned Decree No. 2 of 1984(as amended), the respondent/applicants are immune to any legal liabilities in respect of any action done pursuant to the Decree.
The Federal Military Government (Supremacy and Enforcement) of Powers Decree No. 12 of 1994 and Constitution (Suspension and Modification) Decree No. 107 oust the jurisdiction of this Honorable Court to entertain any civil proceedings that arise from anything done pursuant to the provisions of any Decree.
This Honorable Court lacks the constitutional jurisdiction to entertain any action relating to the enforcement of any of the provisions of Chapter IV of the 1979 Constitution (as amended) and the African Charter on Human and People’s Right (Ratification and Enforcement) Act.
Arguments on the preliminary objection were taken from learned counsel appearing for the parties in the course of which detention order No. 00455 dated 3/2/96 by which the respondent was detained, was shown to the Court and Counsel for the respondent.
ISSUES RAISED
- Whether the African Charter on Human and Peoples’ Rights being domesticated has a superior status to military Decrees.
- Whether the Charter can be relied upon to challenge actions of a military government that contravene fundamental human rights.
ARGUMENTS OF THE PARTIES
- Contentions by the Petitioner/Appellant
Argued that Decree No. 107 of 1993 excluded judicial review of acts of the military government. Also contended that under military rule, Decrees were supreme laws and could not be overridden by any other enactment including the African Charter.
- Contentions by the Respondent
Argued that the African Charter, having been domesticated by an Act of the National Assembly, had the force of law in Nigeria. Also, maintained that his arrest and detention were violations of his rights to personal liberty and fair hearing under the Charter.
STATUTES OR CASE LAWS REFERRED TO IN THE CASE
Statutes, Decrees & Constitutional Provisions Cited
1979 Constitution of the Federal Republic of Nigeria
- Section 12(1)
- Section 31, 32 and 38- Fundamental Human Rights(life, liberty, movement)
- Section 33- Right to fair hearing
- Section 42 – Enforcement of fundamental rights
- Section 67 – immunity of Head of State
- Section 267 – immunity clause referred to by Pats-Acholonu, JCA
- Chapter IV- Fundamental Rights
African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10. (Laws of the Federation of Nigeria) 1990
Articles 4,5,6 and 12 cited
- State Security (Detention of Persons) (Amendment) Decree No. 11 of 1994
- State Security (Detention of Persons) Decree No. 2 of 1984 ( as amended)
- Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 12 of 1994
Section 1(2)(b)(i)- ouster of court jurisdiction over acts done under any Decree
Constitutional (Suspension and Modification) Decree No. 107 of 1993
- Section 5 – Supremacy of military decrees
- Sections 16& 17- preservation of existing laws such as Cap.10
- Fundamental Rights (Enforcement Procedure) Rules, 1979
- State Security (Detention of Persons) (Amendment) Decrees
- Nos 11 of 1994, 24 of 1990, 3 of 1990, 12 of 1986 (referenced for historical amendments)
Organization of African Unity Charter (African Charter on Human and Peoples’ Rights, 1981)
- Case Laws Cited
- Higgs& Anor v. Minister of National Security &Ors – Privy Council decision on incorporated treaties.
- Chae Chan Ping v. United States –U.S. authority on treaties and domestic law hierarchy
- Cook v. United States – On implied repeal of treaties by domestic statutes
- Lekwot v. Judicial Tribunal – On ouster clauses and military tribunals
- Okeke v. Attorney- General of Anambra State – On effect of ouster clauses
- Fajinmi v. The Speaker, Western House of Assembly – On procedure for enforcing rights
- Ogugu v. The State – On enforceability of African Charter rights in Nigeria
- Akhiwu v. The Principal Lotteries Officer, Mid Western State – On irregular procedures and waiver
- Labiyi v. Anretiola – On hierarchy of laws under the Constitution
- Lakanmi & Anor v. Attorney- General West & Ors – Classic case on military supremacy and judicial review
JUDGMENT/FINAL DECISION
In a reserved ruling given on 26th day of March 1996, the learned trial judge found-
- “that the Inspector-General of Police has been given the power to detain a person by the provisions of the State Security (Detention of Persons) Decree No. 2 of 1984 as amended by the State Security (Detention of Persons) (Amended) Decree No. 11 of 1994
- That the Court cannot question the legality of the Detention Order since it was made by the appropriate authority under the Decree.
- That any of the provisions of the African Charter on Human and Peoples’ Rights which is inconsistent with Decree No. 107 of 1993 (the grundnorm) is void to the extent of its inconsistency.
- That the African Charter on Human ad Peoples’ Rights has no leg to stand on its own under the Nigerian law. It cannot be enforced as a distinct law. As such it is subject to our domestic and ouster decree”
The Supreme Court of Nigeria held that the African Charter on Human and Peoples’ Rights, having been domesticated through the African Charter (Ratification and Enforcement) Act (Cap. 10, LFN 1990), forms part of Nigeria’s municipal law ans is enforceable by Nigerian courts like any other statute.
However, during military rule, Decrees are supreme and take precedence over all other laws, including the African Charter. Therefore, while the Charter remains part of Nigerian law, it cannot override Decrees that expressly oust the jurisdiction of the courts or suspend constitutional rights.
The Court dismissed Abacha’s appeal, affirming that the African Charter remains valid law in Nigeria and those violations of his rights. It also allowed Fawehinmi cross-appeal, ordering the case to be remitted to the Federal High Court for full trial on all his claims.
However, the Court recognized that during the military regime, Decrees could override other laws, so while Fawehinmi won the legal principle , the enforcement of rights still depended on the prevailing military legal order
LEGAL REASONING/ RATIO DECIDENDI
The legal reasoning/ratio decidendi is that:
“International treaties, once domesticated by the National Assembly, form part of Nigerian law and are enforceable by Nigerian courts, but they do not enjoy superiority over the Constitution or Decrees made by a military government”
CONCLUSION/OBSERVATIONS
The case of General Sani Abacha &Ors v. Chief Gani Fawehinmi(2000) 6 NWLR (Pt. 660) 228 serves as a landmark case in Nigerian human rights jurisprudence. It confirmed that international treaties like the African Charter have no effect in Nigeria until domesticated; they become binding and enforceable in Nigerian Courts.
The case symbolizes the judiciary’s quiet resistance to tyranny and its commitment to ensure human rights remain justifiable in Nigeria, even in the most repressive political climate such as a military regime
