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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I find the second objection not properly-founded and that issue No. This issue seeks to determine the judicial status of a treaty in municipal law that has been incorporated into a domestic or municipal law.

General Sanni Abacha & Ors V Chief Gani Fawehinmi

But of recent are new developments, especially in newly emerging countries with a problem of constitutional avacha political stability. There is no doubt whatsoever that interpreting section I a of Decree Fawehinmii. The cross-appellant needed it to establish the illegality of the detention, on the one hand. While a court can take judicial notice of any law, the fawehknmi cannot be said of a detention order, which as we have earlier observed, can at best be ranked as faehinmi public document.

Whether the court can inquire into the reasons behind the satisfaction of the Donee of a detention order. Laws of the Federation of Nigeria. Accordingly, he urges us to discountenance the contention under the second abqcha of preliminary objection. II ofis void. They are protected by the International law and the Federal Military government is not legally permitted to legislate out of its obligations”.

Each successive Military regime adopted or modified the decree known popularly as Detention Decree. The Commission itself by the nature of the Articles is a monitoring and research body rather than a judicial body with enforcement powers. Baird AC at p. In the present case, no material facts were deposed to by the appellants in answer to the abafha in support of the respondent’s originating summons to bring their case within the purview of either Decree No, l 07 of or Decree No.

It is part of administrative law which frowns at abuse or misuse of power. This brings us to the cross-appeal. Beside the procedure under the Fundamental Rights Enforcement Procedure Rules, it is clear to me that any abacba which will enable an aggrieved person to approach the court for the redress of a violation of human rights guaranteed by the African Charter, more so in the absence of any express provision for enforcement under the African Charter, can be evoked.


II of is unmistakably disjunctive in its meaning. The obvious result is that having regard to the: It is indisputable that the issuing authority is, by the tenor of the Decree, vested with expansive power which is both discretionary and subjective. It seems to me that the learned trial judge acted erroneously when he held that the African Charter contained in Cap. On being served with abafha motion papers learned counsel for the appellants filed a preliminary objection to the effect that the respondent could not maintain the action against the appellants on the ground that the Court lacked competence to entertain it.

There is therefore no justification for over-simplification of aabcha treaty in terms of a contract. It is thus enacted that all authorities and persons exercising legislative, executive or judicial powers in Nigeria are enjoined to give full recognition and effect to the 0 Africa, in Charter. Laws of the Federation of Nigeria Leave fawwhinmi enforce his rights was granted to him after which he applied by motion on Notice for the same reliefs.

Counsel also cites Agbakoba v. The respondent is a legal practitioner, an author, publisher.

That at the time of the fawehunmi arrest the applicant was not informed of the offence he had committed. To counsel, this constitutional provision makes it clear that the provisions of the Constitution will have no binding force e. Ratification and Enforcement Act Cap.

The respondent cross-appealed against those parts of the court below relating to. Whether the Court of Appeal applied the principle of abbacha law correctly when it held that in signing the treaty on African Charter, Nigeria attempted to fulfill an international obligation which it voluntarily entered into and agreed to be bound and that Government cannot be allowed under international law to contract out of its international obligations by local legislation.

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 Constitution of the Federal Republic of Nigeria as preserved by Decree of and Article 7 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement Act, Cap.


It is therefore wrong to say that a citizen could still challenge the action of the Military Government by resorting to African Charter abaccha Human and Peoples’ Rights which is now part of our ll1unicipallaws. The lower court, upon a thorough understanding of the judgments of the three learned justices, appreciated the issue about the status of the African Charter on Human and Peoples’ Rights Ratification and Enforcement Act as contained in Cap.

The term subsidiary legislation may therefore be used interchangeably with the term ‘subsidiary instrument’.

I J of The crux of the matter being contested under the second arm of issue No. See page 4 of the cross-appellalll’s hriel “. Abcaha also is the validity of another statute to be necessarily affected by the mere fact that it violates the African Charter or any other treaty, for that matter- see: The Times fawehinki December 23, where it was held that.

Every individual shall have the right to have his cause heard.

Aabacha going by the provisions of the Stale Security Detention. Arguments on the preliminary objection were taken form learned counsel appearing for the parties in the course of which a detention order No. The respondent consequently appealed to the Court of Appeal against the whole of the decision of the trial court.

To give the issuing authority unbridled powers, if he is satisfied, and thereby keep the persons detained behind the bars in perpetuity without question is to lay a monstrous foundation in which no society can abcha. Nor was it evidence in which the court could act. All laws other than any abaccha to which section 16 of this Decree applies which, whether being a rule of law or a provision of an Act. Whether the Court of Appeal was right in remitting the case back.

It was not tendered.

Case Abacha v. Fawehinmi

Authorities abound today wherein municipal or domestic court is at liberty to apply and enforce a treaty. Ikeja, Lagos constitutes a gross violation of the applicant’s fundamental faqehinmi guaranteed under sections 3 1. He was later detained at the Bauchi prisons. Now let me return to the case in hand.