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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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Procedure for tendering detention order; and. The learned Justice of Appeal had observed:.

Further, in the particular case of Nigeria as a country ruled. Rationalising from the principles of international law adumbrated by the Court of Appeal in its judgment, it held, inter alia, first that Cap. It fawehinni not tendered. Nevertheless, for avoidance of doubt, a wider and embracing protection was given to acts done by the members of the executive during the fawehihmi of military regime.

The following issues were distilled for the determination of the appeal: On assumption of office by the 1st cross- respondent in November, and by virtue of the Constitution Suspension and Modification Decree No. Ouster of court’s jurisdiction is not a mallet of course. Miller AC The only evidently fawehin,i the trial court was the affidavit of Ganiyat Fawehinmi in which she deposed, inter alia, as follows:.

No one may be arbitrarily deprived of his right. I Laws of the Federation is not inferior to the Decrees of the Federal Military Government on faweginmi 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.

Case Abacha v. Fawehinmi

The learned counsel for the respondents produced it. It is against these provisions of the Constitution that the African Charter was A promulgated. Nor 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: See also des Ca:: On the issue of supremacy of the Constitution in relation to treaties, counsel submits that although the supremacy of the Constitution was entrenched by virtue of Section I of that Constitution, the doctrine of supremacy of the Constitution is limited to the territorial entity known as Nigeria by reason of its Section I IConsequently, counsel argues that the provisions of the Constitution cannot have effect in Ghana, Kenya and other countries within the Organisation of African Unity OAU and therefore the concept of constitutional supremacy is in relation to uny orher law within Nigeria and not treaties concluded voluntarily with other nations.


It is common place, that no Government will be allowed to contract out by local legislation, its international obligations. As from the commencement of this Act.


I would take appellants’ issues I and 2 together as they seem to encompass respondent’ s issue No. To counsel, African Charter can only be limited to the extent to which its Charter itself provides any limitation and not subject to the provision of enactments in Nigeria, such as Decree No.

Dissatisfied with the ruling, the respondent appealed to the Court of Appeal, Lagos Division which. Second, I cannot help remarking that learned counsel for the appellants has misconceived the meaning and essence of what is known as an act of State. Section 5 of Decree No.

I shall do so bearing in mind all the other but faehinmi shall endeavor to answer them as necessary. The notice of preliminary objection filed by the appellants to the respondent’s fawhinmi for the enforcement of his rights did not say that the respondent was detained pursuant to any detention order. I OLFN have a force or effect greater or higher than that of a Decree so that a Decree cannot oust the jurisdiction of the court in respect of its provisions.

Nor can its international flavour prevent the National Abachq, or the Federal Military Government before it removing it from our body of municipal laws by simply repealing Cap. I am not unmindful that in the course of proceedings in the trial court a detention order was shown to the court. There is no gainsaying the fact that the copy of the detention order was a material document to both parties as well as the court.

For purposes of clarity, its Section 1 1 goes further to state:.

In his reply brief, the cross-appellant dealt very briefly but effectively with it. Whether the Court of Appeal applied the principle of international law correctly when it held that in signing the treaty on African Charter. I also dismiss the cross-appeal for the above reasons and the reasons in the judgment of Achike JSc.

That at the time of the said arrest the applicant was not informed of the offence he had compiled. The onus was on the appellants depose to facts to establish. Dissenting on the Cross-Appeal: From the foregoing I think that any detention order made by the relevant authority under Decree No.


General Sanni Abacha & Ors V Chief Gani Fawehinmi

Counsel refers to the Preliminary Objection which necessitated the filing of a reply brief to address the issue raised therein. It is my view, that notwithstanding the abbacha that Cap. He finally urges us to allow the appeal. Judgement of the Court. Adegboruwa, of counsel, submits that an international treaty adopted by this country is superior to all her domestic laws, including the Constitution. A Declaration that baacha attention and continued detention of the applicant without charge since Tuesday January The trial court after hearing arguments of the objection, upheld it and struck out the suit of the respondent.

Clearly, it is not open to the court to take judicial notice of such a document in the absence of any law authorising such approach. 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 month thereafter, review the case 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.

It is clear that Decree No. Hermandez U.

I take it from the affidavits and other documents filed in court. On the question of costs I confess that I have some difficulty. I page this court held that where there is no provision as to the procedure to be followed in enforcing the jurisdiction conferred, the plaintiff was entitled to bring the case in the usual form of an action and to have it heard.

I am now left with Issues I. 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 Fawehlnmi Act by Section 4 thereof, the provisions of the African Charter on Human and Peoples’ Rights Ratification and Enforcement Act,Cap.