Ratified treaties;¹ Foreign case law²

Arbitrary detention/ Action before the Supreme Court/ Determination of the value of the African Charter of Human and Peoples’ Rights in domestic law/ Use of international law as a guide for interpreting domestic law

A human rights activist had been detained in custody for a week without presentation of an arrest warrant and without cause. During that period he was held in total isolation before being confined. He instituted proceedings before the Lagos Federal High Court to claim respect for his fundamental rights, arguing, inter alia, that his arrest contravened Articles 4, 5, 6 and 12³ of the African Charter on Human and Peoples’ Rights (which Nigeria had ratified).

The main problem facing the Supreme Court of Nigeria was the value of the African Charter of Human and Peoples’ Rights in the domestic legal system. On this point the Court found that the application was admissible.

The Supreme Court of Nigeria first defined the term “treaty” in accordance with the 1969 Vienna Convention on the Law of Treaties. After referring to English case law on the Treaty establishing the European Economic Community with reference to the United Kingdom, one of the Supreme Court judges pointed out the following:

 “It is clear from the plethora of case-law referred to above that treaties can today create rights and obligations not only between Member States themselves but also between citizens and Member States and between ordinary citizens.”

The Court then found that:

 “The spirit of a Convention or a treaty demands that the interpretation and application of its provision should meet international and civilized legal concepts. That means those concepts which are widely acceptable and at the same time of clear certainty in application. Thus, the courts will not construe a statute so as to bring it into conflict with international law.”

The Court continued its case by basing its interpretation on English case law and recognized that, since Nigeria incorporated treaties into the domestic legal system through statute law, a treaty “becomes binding and our courts must give effect to it like other laws falling within the judicial powers of the courts.”

As for the rank of the African Charter of Human and Peoples’ Rights in the hierarchy of standards in Nigeria, the Supreme Court found that since the Charter had been incorporated by statute into the domestic legal system, it was a “statute with an international flavour. Therefore, if there is a conflict between it and another statute, its provisions will prevail over those of that other statute because it is presumed that the legislature does not intend to breach an international obligation. Thus it possesses a greater vigour and strength than any other domestic statute.”

The Court went on to find that, since the African Charter on Human and Peoples’ Rights was an instrument for protecting human rights, its provisions could be referred to before Nigerian courts. To affirm its case the Court relied directly on the articles of the Charter which provide that persons whose rights have been violated are entitled to legal remedy to have their rights recognized.⁴

It is interesting to note in conclusion that the Supreme Court of Nigeria held that the fact that no specific remedy was provided in legislation did not prevent citizens from availing themselves of rights established in the Charter. This possibility could even be applied according to the procedure provided for enforcing the fundamental rights enshrined in the Constitution

Having interpreted national law in conjunction with international and foreign law, the Supreme Court of Nigeria thus found that treaties which had been ratified and embodied as a statute of domestic law had higher authority than the other national laws. On these grounds, having allowed the human right activist’s appeal, the Court ruled that the provisions of the African Charter on Human and Peoples’ Rights were directly applicable.

¹ Vienna Convention on the Law of Treaties, 1969; African Charter on Human and Peoples’ Rights, 1981.

² France and United Kingdom.

³ Article 4 of the African Charter on Human and Peoples’ Rights: “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”

Article 5 of the African Charter on Human and Peoples’ Rights: “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

Article 6 of the African Charter on Human and Peoples’ Rights: “Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”

Article 12 of the African Charter on Human and Peoples’ Rights:

“1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.

2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.

3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions.

4. A non-national legally admitted in a territory of the State Party to the present Charter may only be expelled from it by virtue of a decision taken in accordance with the law.

5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.”

⁴ Article 7(1)(a) of the African Charter on Human and Peoples’ Rights:

“Every individual shall have the right to have his cause heard. This comprises:

(a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;”