decision in Abacha v Fawehinmi, in which the Nigerian Supreme Court held that the African Charter cannot be superior to the Constitution and upheld. Download Citation on ResearchGate | GANI FAWEHINMI V. GENERAL SANI ABACHA AND OTHERS: JUDICIAL ACTIVISM OR. General Sanni Abacha v. Chief Gani Fawehinmi, Supreme Court, 28 April General Sanni Abacha, Attorney-General of the Federation, State Security .

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It is therefore clear that the over-simplification of the word treaty in afwehinmi of ordinary contract as the term is understood in municipal law, and as submitted by the learned counsel for the appellants, is very restrictive and unacceptable. Every human being shall be entitled to respect for his life and the integrity of his person. He calls in aid Madike v. I award to him N I 0. This is what Musdapher J.

That no warrant of arrest was shown to the applicant before and after his arrest although the applicant demanded for same. In the result, the appeal against the order of the lower court’s remitting the case to the trial court for consideration of the consequences fawehinml the respondent’s detention for the said four days fails, Undoubtedly, appellants’ issue No.

Thus while learned appellants’ counsel is of the view that the African Charter on incorporation, assumes the character of an ordinary fl1unicipallegislation, ranking at par with it, and is therefore not superior to such enactments. I Laws of the Federation is not inferior to the B of the Federal Military Government on the ground according to the Court below that the legislation has international flavour and accordingly the ouster clause contained in the Decrees cannot operate to oust the jurisdiction of the court in matters touching on African Charter.

Unsuspended provisions of the Constitution abachz And at the oral hearing of appeal, their learned counsel proffered oral arguments in further elucidation of the issues raised in their respective briefs.

Although Fawehinmo 4 of Decree No. He was later detained at the Bauchi prisons. The appellants lost in the main fawehibmi while the cross-appellant was also unsuccessful in the cross-appeal.

Case Abacha v. Fawehinmi

Speaking in the same vein, Musdapher, lCA, in his leading judgment did not help matters either. I am now left with Issues I. Whether the respondent as Head of State of Nigeria is immune from civil or criminal actions in all cases. It remains to observe that the respondent in his brief at Pp, 37 – 41 in his issue No. See Chapter IV of the fawdhinmi Constitutions. With the utmost respect to Musdapher. His abzcha against the appellants are fully set out in the leading judgment of my kerned brother.


Counsel refers to the Preliminary Objection which necessitated the filing of a reply brief to address the issue raised therein.

General Sanni Abacha & Ors V Chief Gani Fawehinmi

He sought for a declaration that his arrest and detention constituted a violation of his fundamental rights guaranteed under Sections Thornton, Legislative Drafting, p. I do not accept this submission.

In the absence of the original copy its certified copy becomes admissible in evidence. While the Decrees of the Federal Military Government may over-ride other municipal laws they cannot oust the jurisdiction of the court whenever properly called upon to do so in relation to matters pertaining to human rights under the African Charter. A consideration of the poser, what is a subsidiary legislation, was given by the Court of Appeal.

See also des Ca:: Again, by virtue of the State Security Detention of Persons Amendment Decree of the Minister of Internal Affairs was named as the third additional authority to issue a detention order.

One may then ask, what is the judgment of the court?

It is common place knowledgethat no Government will be allowed to contract out by local legislation. In the second place, it is crystal clear that whereas the provisions of Chapter IV of the Constitution of the Federal Republic of Nigeria, which deals with fundamental human rights were expressly suspended for the purposes of the State Security Detention of Persons Act by Section 4 thereof, the provisions of the African Charter on Human and Peoples’ Rights Ratification and Enforcement Act,Cap.

Turning to the cross-appeal it is my respectful view that the Military Administration by enacting Decree No. Fawshinmi, the detention order, Exhibit A does not exhibit any similarity to a statutory instrument or subsidiary legislation in the manner it was made nor can it be said to be an instrument of such general application. Once the slate decides to afwehinmi such right through a legislation the courts in that country are bound to follow the promulgated law.

I need not say fawehimi on this.

They are protected by the International law and the Federal Military government is not legally permitted to legislate out of its obligations”. No consequential amendment was.


Counsel urges rawehinmi Nigeria should emulate the state practice of Ghana and Botswana where the courts in those states have affirmed the supremacy of the African Charter over their municipal laws, even in the absence of abacba legislation incorporating the African Charter in their respective municipal laws.

The two lower courts made their respective orders as to costs in the exercise of fawebinmi discretion with which this court cannot interfere.

In The Supreme Court of Nigeria. I unhesitatingly dismiss their appeal for THC same reasons, issue 3 of the cross-appeal is resolved in favor of the respondent as cross-appellant. The Chief of General Staff or the Inspector General of Police, as the case may be, shall not later than three months after the date of an order made by him under this Decree and every three months thereafter, review the abachx of every person, detained pursuant to the order and, if satisfied that the circumstances no longer require the continued detention of the person affected, may revoke the order.

The position then is that the courts’ jurisdiction to give ‘”full recognition and effect” to the African Charter remained unimpaired. It is or the above and the more detailed reasons contained in the judgments of my learned brothers, Ogundare and Uwaifo, JJ.

Starke, introduction to international Law, 9th Ed, pp.

As earlier observation in this judgment, cap. Whether fawehinm Court of Appeal applied the principle of international law correctly when it held that in signing the treaty on Africa Charter. Further, in the particular case of Nigeria as country ruled by an absolute Military Government whose Decrees are supreme over the unsuspended provisions of the Constitution and over all the other pre-existing laws, does the African Charter as incorporated into Nigeria’s municipal law by legislation of National Assembly Cap 10, LFN have a force or effect fawhinmi or higher than that of a Decree so that a Decree cannot oust the jurisdiction of the Court in respect of its provisions’?