The Place of the African Charter in Nigerian Constitutional Law

The Place of the African Charter in Nigerian Constitutional Law

Introduction

Human rights stand as the bedrock of modern democratic governance, acting as an indispensable compass guiding the relationship between the state and its citizens. In the intricate tapestry of international human rights law, the African Charter on Human and Peoples’ Rights (ACHPR) emerges as a uniquely African response to the universal aspiration for human dignity and freedom. Adopted under the auspices of the Organization of African Unity (OAU), now the African Union (AU), the Charter not only enshrines civil and political rights but also boldly incorporates socio-economic, cultural, and distinctive “peoples’ rights,” alongside a recognition of individual duties – features that set it apart from other regional human rights instruments.

Nigeria, as a prominent nation on the African continent and a signatory to numerous international treaties, has a complex and evolving relationship with international law, particularly human rights instruments. Its constitutional framework, primarily the 1999 Constitution (as amended), provides fundamental human rights guarantees.

However, the exact “place” of the African Charter within this Nigerian constitutional landscape is a subject of profound legal and academic discourse, necessitating a meticulous examination of its domestication, judicial interpretation, and practical application. This blog post aims to explore the multifaceted interaction between the ACHPR and Nigerian constitutional law, highlighting the Charter’s significant contributions, the challenges encountered in its implementation, and its future prospects in strengthening human rights protection in Nigeria.

I. Understanding the African Charter on Human and Peoples’ Rights (ACHPR)

The ACHPR, often referred to as the Banjul Charter, was adopted in 1981 and came into force in 1986. Its genesis is rooted in the unique historical and socio-political context of post-colonial Africa, marked by struggles for self-determination, nation-building, and the desire to forge a human rights instrument that resonated with African realities and philosophies.

A. Historical Context and Motivations

The OAU, established in 1963, initially focused on decolonization and continental unity. However, by the late 1970s, a growing recognition of widespread human rights abuses on the continent, often perpetrated by post-independence regimes, spurred a collective resolve to develop a regional human rights mechanism. The drafters sought to create an instrument that would not merely mimic Western human rights models but would incorporate distinctive African perspectives. This included an emphasis on:

• Solidarity and Collective Rights: Acknowledging the communal nature of African societies and the importance of collective well-being.
• Balance of Rights and Duties: Recognizing that individuals, in addition to having rights, also have duties towards their families, communities, and the state.
• Addressing Historical Injustices: Incorporating rights pertinent to the African experience, such as the right to self-determination and the free disposition of natural resources.

B. Key Features and Innovations

The ACHPR stands out for several progressive and distinctive characteristics:

1. Comprehensive Scope of Rights: Unlike some other instruments that separate different generations of rights, the Charter integrates all three generations of human rights:
   • Civil and Political Rights: These include fundamental freedoms such as the right to life, liberty, fair hearing, freedom of expression, assembly, and association (Articles 2-14). While broadly similar to rights found in other international instruments, their interpretation within the African context can sometimes present unique nuances.
   • Economic, Social, and Cultural Rights: The Charter explicitly guarantees rights like the right to work, health, education, and culture (Articles 15-17). This unified approach to all generations of rights signals the Charter’s holistic view of human dignity, recognizing the interdependence and indivisibility of these rights. The African Commission, in cases like SERAC v. Nigeria, has even interpreted implicit rights like the right to housing and food within the existing provisions.
   • Peoples’ Rights (Third Generation Rights): This is perhaps the most distinctive feature of the ACHPR. Rights such as the right to existence, self-determination, free disposition of natural wealth and resources, development, and a generally satisfactory environment (Articles 19-24) are granted to “peoples,” recognizing the collective dimension of human rights. This was a direct response to issues like colonialism, apartheid, and the exploitation of natural resources by external actors.
2. Emphasis on Individual Duties: Articles 27-29 of the Charter explicitly enumerate duties of individuals towards their family, society, the state, and the international community. These duties include serving the national community, preserving national independence, working to the best of one’s abilities, paying taxes, and promoting positive African cultural values. This balance between rights and duties is a significant philosophical underpinning of the Charter, distinguishing it from purely rights-centric instruments.

C. Enforcement Mechanisms

The ACHPR established a regional human rights system comprising two principal bodies:

1. The African Commission on Human and Peoples’ Rights (ACHPR): Established in 1987, the Commission is the primary promotional and protective body of the Charter. Its functions include:
   • Promotion: Undertaking studies, disseminating information, organizing seminars, and encouraging national human rights institutions.
   • Protection: Receiving and considering communications (complaints) from states parties and individuals/NGOs alleging human rights violations. The Commission can issue recommendations and findings to states. Its decisions, though not legally binding in the same way as a court judgment, carry significant moral and persuasive authority.
2. The African Court on Human and Peoples’ Rights (AfCHPR): Established much later in 2004 and commencing operations in 2006, the Court serves as the judicial arm of the African human rights system. It has jurisdiction over all cases and disputes concerning the interpretation and application of the Charter and other relevant human rights instruments ratified by the States concerned. Individuals and NGOs can directly access the Court only if the state concerned has deposited a special declaration accepting the Court’s jurisdiction for individual complaints. Without such a declaration, individuals and NGOs must first go through the Commission.

II. Nigeria’s Engagement with the African Charter

Nigeria’s relationship with the African Charter is defined by its ratification and subsequent domestication, which fundamentally altered the Charter’s legal standing within the Nigerian domestic legal system.

A. Ratification and Domestication

Nigeria ratified the ACHPR on July 23, 1983. However, in Nigeria’s dualist legal system, an international treaty does not automatically become part of domestic law upon ratification. It must undergo a process of domestication, typically through an Act of the National Assembly. This crucial step was taken with the enactment of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004 (formerly Cap 10, LFN 1990).

The enactment of this Act by the National Assembly meant that the provisions of the African Charter ceased to be merely international obligations and acquired the force of law within Nigeria. Section 1 of the Act unequivocally states: “As from the commencement of this Act, the provisions of the African Charter on Human and Peoples’

Rights which are set out in the Schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and person¹s exercising legislative, executive or judicial powers in Nigeria.” ²This legislative act transformed the Charter from an external commitment into an integral part of Nigerian law, making its provisions justiciable in Nigerian courts.

B. Legal Status in Nigerian Law: The Supremacy Question

The domestication of the African Charter immediately raised a critical question regarding its hierarchy within the Nigerian legal system, particularly in relation to the 1999 Constitution.

1. Relationship with Fundamental Rights Chapter (Chapter IV) of the 1999 Constitution:

   • Complementarity: In many instances, the Charter’s provisions complement and reinforce the fundamental rights guaranteed in Chapter IV of the 1999 Constitution (e.g., right to life, dignity, personal liberty, fair hearing, freedom of expression). The Charter often provides a broader or more detailed articulation of these rights, or includes rights not explicitly found in the Constitution (e.g., environmental rights, right to development). This complementarity allows litigants to rely on both the Constitution and the Charter, potentially expanding the scope of protection.
   • Filling Gaps: The Charter has been particularly useful in filling perceived gaps in the Nigerian Constitution. For example, while the Nigerian Constitution’s Chapter II (Fundamental Objectives and Directive Principles of State Policy) outlines socio-economic rights, it declares them non-justiciable. The Charter, however, treats economic, social, and cultural rights as fully justiciable, providing a crucial avenue for their enforcement in Nigeria. Similarly, the explicit recognition of “peoples’ rights” in the Charter adds a dimension of collective rights that is less pronounced in the Nigerian Constitution.

2. The “Special Status” and the Supremacy Debate:

   The Nigerian Supreme Court, in the landmark case of Fawehinmi v. Abacha (2000) 6 NWLR (Pt. 660) 228, clarified the legal status of the African Charter in Nigeria. This case, often considered the locus classicus, involved a challenge to military decrees that ousted the jurisdiction of courts and suspended fundamental rights.

   The Supreme Court held that the African Charter, having been domesticated, has a “special status” and is not an ordinary law that can be easily overridden by a military decree or even by some provisions of the Constitution, particularly those seeking to oust court jurisdiction. The Court reasoned that the Charter’s provisions operate pari passu (on equal footing) with the fundamental rights enshrined in the Constitution.

   While this judgment affirmed the Charter’s robust position, it did not explicitly declare it superior to the Constitution. The prevailing judicial view is that where there is a conflict between a provision of the Charter and a provision of the Nigerian Constitution, the specific circumstances and the nature of the right in question would guide the court’s interpretation.

   However, the Fawehinmi v. Abacha decision strongly suggests that the Charter’s human rights provisions are intended to be given full effect and not undermined by domestic legislation, especially ouster clauses. This “special status” implies that the Charter serves as a potent tool against arbitrary state action and can be used to interpret and potentially broaden the scope of constitutional rights.

III. Judicial Interpretation and Application in Nigerian Courts

The domestication of the African Charter opened the door for Nigerian courts to directly apply its provisions in human rights litigation. This has led to a developing jurisprudence, though not without its challenges.

A. Landmark Cases Demonstrating Application

1. Fawehinmi v. Abacha (2000): Beyond establishing its “special status,” this case marked a pivotal moment where the Supreme Court effectively used the Charter to invalidate decrees that sought to oust judicial review of human rights violations during the military era. It demonstrated the Charter’s potency as a shield against executive excesses.
2. SERAP v. Federal Republic of Nigeria (ECOWAS Community Court of Justice, 2010, on environmental degradation in the Niger Delta): Although this case was heard by the ECOWAS Community Court of Justice, its implications for Nigeria are profound. SERAP, a Nigerian NGO, successfully argued that the Nigerian government’s failure to regulate oil companies and protect the environment in the Niger Delta violated the right to a general satisfactory environment (Article 24) and the obligation to recognize and give effect to Charter rights (Article 1).

The Court held that Nigeria had indeed violated Articles 1 and 24 of the Charter by failing to take effective measures to prevent environmental degradation. This case underscored the justiciability of socio-economic and environmental rights under the Charter and put pressure on the Nigerian government to uphold its obligations.

3.  SERAP v. Federal Republic of Nigeria (ECOWAS Community Court of Justice, 2022, on Twitter ban): In this more recent case, the ECOWAS Court held that the Nigerian government’s indefinite suspension of Twitter in 2021 violated the right to freedom of expression, including access to information and media, as guaranteed by Article 9 of the African Charter and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The Court emphasized that derogations from such rights must be justified by law, which the Nigerian government failed to demonstrate. This case further highlights the Charter’s utility in protecting digital rights and holding the government accountable for restrictions on fundamental freedoms.

4. Other Relevant Cases: While Fawehinmi remains pre-eminent, various High Court and Court of Appeal decisions have referenced and applied the Charter in cases involving unlawful detention, freedom of assembly, and other rights, often in conjunction with Chapter IV of the Constitution. Courts frequently use the Charter as an interpretive aid to broaden the understanding and scope of human rights in Nigeria.

B. Challenges in Judicial Application

Despite the positive developments, challenges persist in the consistent and robust application of the African Charter by Nigerian courts:

1. Judicial Reluctance and Awareness: Some judges may still exhibit a degree of conservatism or a lack of familiarity with the nuances of international human rights law, including the jurisprudence of the African Commission and Court. This can lead to inconsistent application or a failure to fully leverage the Charter’s protective potential.
2. Interpretation Issues: The broad and aspirational language of some Charter provisions can pose interpretive challenges for domestic courts. While the African Commission and Court develop interpretive jurisprudence, Nigerian courts do not always consistently refer to or adopt these interpretations. There’s also the ongoing debate on how to interpret “claw-back clauses” in the Charter (e.g., rights exercised “within the law”), ensuring they do not unduly restrict the enjoyment of rights.
3. Enforcement of Regional Decisions: While the ECOWAS Court’s decisions are binding on member states, their direct enforcement within the Nigerian legal system can sometimes face practical and political hurdles.
4. Verbatim Domestication: The fact that the Charter was domesticated “holus bolus” (verbatim) without significant adaptation to Nigeria’s specific legal framework has been cited as a source of confusion. For instance, references to “States Parties” or “Organisation of African Unity” (OAU, now AU) in the domestic Act can create interpretive ambiguities for Nigerian legal practitioners and the public. This has led to calls for a more tailored “National Human and Peoples’ Rights Act” that clarifies these issues.

IV. The Impact and Influence of the African Charter on Nigerian Human Rights Jurisprudence

Beyond direct application in court cases, the African Charter has had a pervasive, albeit sometimes subtle, influence on the broader landscape of human rights in Nigeria.

A. Expansion of Rights Protection

The Charter has unequivocally expanded the range of human rights recognized and potentially protected in Nigeria. Its emphasis on socio-economic rights, even if not always fully enforced, has provided a legal basis for advocacy and litigation in areas like housing, health, and education, where the Nigerian Constitution’s provisions are often non-justiciable. Similarly, the explicit recognition of “peoples’ rights” has given a voice to collective grievances, particularly concerning environmental degradation and resource control, as seen in the Niger Delta.

B. Source of International Law Principles

The domestication of the Charter serves as a crucial conduit through which international human rights norms and principles enter and influence Nigerian legal thought. It has encouraged Nigerian legal professionals to engage more deeply with international human rights law, fostering a more globalized approach to human rights advocacy and adjudication.

C. Advocacy Tool for Civil Society

Civil society organizations (CSOs) and human rights activists in Nigeria have extensively leveraged the African Charter. It provides an additional legal framework to challenge human rights abuses, lobby for policy reforms, and raise public awareness. The ability to lodge communications with the African Commission or directly approach the ECOWAS Court (where applicable) provides alternative avenues for seeking redress when domestic remedies are exhausted or ineffective.

D. Influence on Legislation and Policy

While direct causal links can be difficult to establish, the principles espoused by the African Charter have arguably contributed to legislative and policy discussions in Nigeria. For instance, the growing emphasis on environmental protection and community participation in resource management, though still largely aspirational, finds resonance in the Charter’s provisions on peoples’ rights and a healthy environment. The ongoing efforts to reform the justice system and strengthen human rights institutions may also be seen as indirectly influenced by Nigeria’s commitments under the Charter.

V. Challenges and Opportunities

The journey of integrating and fully realizing the aspirations of the African Charter in Nigerian constitutional law is ongoing, replete with both formidable challenges and significant opportunities.

A. Challenges

1. Awareness and Capacity Building: A critical challenge remains the lack of widespread awareness and adequate training on the African Charter among legal practitioners, law enforcement agencies, and even some segments of the judiciary. This knowledge gap can impede its effective use and enforcement.
2. Implementation Gaps: Despite its legal force, there is often a significant disconnect between the Charter’s provisions and their practical implementation on the ground. This is exacerbated by issues such as corruption, weak institutions, and insufficient resources allocated to human rights protection.
3. Political Will and State Compliance: The full effectiveness of the Charter depends heavily on the political will of the government to abide by its provisions and implement the decisions of regional human rights bodies. Instances of non-compliance or slow implementation of adverse rulings by the African Commission or ECOWAS Court undermine the Charter’s authority.
4. Supremacy Debate and Ouster Clauses: While Fawehinmi v. Abacha provided clarity, the underlying tension between the Charter and potential future legislative attempts to limit human rights (e.g., through ouster clauses) persists. The judiciary’s vigilance remains paramount in upholding the Charter’s “special status.”
5. Engagement with Regional Jurisprudence: Nigerian courts could benefit from more consistent engagement with and reference to the rich jurisprudence developed by the African Commission and the African Court. This would ensure a more harmonized interpretation of Charter provisions across the continent.

B. Opportunities

1. Strengthening Human Rights Culture: Continued strategic litigation and advocacy using the Charter can further embed a robust human rights culture within Nigeria, promoting accountability and respect for fundamental freedoms.
2. Harmonization of Laws: The Charter presents an ongoing opportunity to review and reform Nigerian domestic laws to ensure greater consistency and compliance with international human rights standards. This could include a re-evaluation of the justiciability of socio-economic rights in the Constitution.
3. Enhanced Regional Integration: By fully embracing and implementing the Charter, Nigeria can reinforce its leadership role in promoting human rights within ECOWAS and the African Union, contributing to stronger regional human rights mechanisms.
4. Leveraging International Cooperation: The Charter provides a framework for Nigeria to engage with international partners on human rights issues, potentially attracting technical assistance and support for capacity building and institutional strengthening.
5. Public Education and Engagement: Promoting public awareness of the African Charter and the rights it guarantees can empower ordinary Nigerians to claim their rights and hold their government accountable, thereby fostering a more rights-conscious citizenry.

Conclusion

The African Charter on Human and Peoples’ Rights occupies a unique and indispensable place in Nigerian constitutional law. Through its domestication, it has transcended its origins as an international treaty to become a fundamental component of Nigeria’s domestic legal order, enjoying a “special status” that protects it from arbitrary legislative or executive interference. The Charter has undeniably expanded the scope of human rights protection in Nigeria, particularly by making socio-economic and “peoples’ rights” justiciable, and by providing a powerful tool for civil society advocacy.

However, the journey towards the full realization of the Charter’s aspirations in Nigeria is far from complete. Challenges related to awareness, consistent judicial application, political will, and the practical implementation of judgments remain. Overcoming these obstacles will require concerted efforts from all stakeholders: the judiciary through continued progressive interpretations, the legislature through responsive law-making, the executive through adherence to its obligations, and civil society through sustained advocacy and monitoring.

Ultimately, the enduring relevance of the African Charter in Nigeria lies in its capacity to serve as a dynamic instrument for social change, a guardian of dignity, and a reminder that human rights are not merely abstract ideals but fundamental entitlements that must be respected, protected, promoted, and fulfilled for all peoples within the Federal Republic of Nigeria and indeed, across the African continent.