Case Review: Fawehinmi v. Abacha and the Power of the Constitution

Case Review: Fawehinmi v. Abacha and the Power of the Constitution

The annals of Nigerian legal history are replete with landmark cases that have shaped the nation’s constitutional jurisprudence. Among these, the case of Fawehinmi v. Abacha (2000) 2 NWLR (Pt. 645) 261 stands as a stark reminder of the profound tension between military might and constitutional supremacy, and the unwavering courage of individuals who dared to challenge authoritarianism. This comprehensive review delves into the intricacies of this pivotal case, exploring its factual background, the legal arguments advanced, the Supreme Court’s pronouncements, and its enduring legacy on the Nigerian legal and political landscape.

1. The Sordid Backdrop: Military Rule and the Erosion of Rights

To fully appreciate the significance of Fawehinmi v. Abacha, it is crucial to understand the political climate in Nigeria during the 1990s. The nation was firmly under the grip of military rule, with General Sani Abacha at the helm. This era was characterized by widespread human rights abuses, suppression of dissent, and a systematic assault on democratic institutions. Fundamental rights enshrined in the 1979 Constitution were routinely suspended or circumvented by military decrees, which were often given retroactive effect and contained ouster clauses designed to strip courts of jurisdiction to hear challenges against the military government’s actions.

The judiciary, an otherwise independent arm of government, found itself in a precarious position. While the concept of separation of powers is fundamental to a constitutional democracy, military regimes in Nigeria, including Abacha’s, consistently sought to undermine judicial independence, effectively placing themselves above the law. This was achieved through various means, including the promulgation of decrees that purported to nullify the jurisdiction of courts to inquire into the validity of military actions, and the use of draconian laws like the State Security (Detention of Persons) Decree No. 2 of 1984, which allowed for indefinite detention without trial.

It was against this backdrop of executive overreach and judicial emasculation that Chief Gani Fawehinmi, a relentless human rights activist and legal luminary, emerged as a formidable voice for the oppressed. Known as “the people’s advocate,” Fawehinmi dedicated his life to challenging governmental excesses and advocating for the rule of law. His activism frequently led to his arrest and detention, making him a perennial thorn in the side of successive military regimes.

2. The Genesis of the Case: Fawehinmi’s Arrest and Legal Challenge

The immediate catalyst for Fawehinmi v. Abacha was the arbitrary arrest and detention of Chief Gani Fawehinmi on January 30, 1996. Operatives of the State Security Service (SSS) and the police arrested him without a warrant at his Lagos residence. This arrest was a routine tactic employed by the military government to silence dissenting voices.

Incensed by this blatant disregard for his fundamental rights, Fawehinmi, even while in detention, initiated legal proceedings against the Head of State, General Sani Abacha, and other government officials. He sought several reliefs from the Federal High Court, including:

• A declaration that his arrest and detention were unconstitutional and unlawful, violating his fundamental rights under Chapter IV of the 1979 Constitution (which covered fundamental rights) and the African Charter on Human and Peoples’ Rights (ratified by Nigeria and domesticated into Nigerian law as the African Charter (Ratification and Enforcement) Act, Cap 10, Laws of the Federation of Nigeria, 1990).
• An order of mandamus compelling his immediate arraignment before a court of competent jurisdiction or his release from detention.
• An injunction restraining the respondents from further violating his rights.
• Damages for the unlawful arrest and detention.

The Federal High Court, faced with the formidable legal architecture of military decrees, ruled that it lacked jurisdiction to entertain the suit due to the ouster clauses contained in the relevant military decrees, particularly the State Security (Detention of Persons) Decree No. 2 of 1984 (as amended by Decree No. 11 of 1994), which specifically suspended Chapter IV of the 1979 Constitution and purported to oust the jurisdiction of courts.

Fawehinmi, undeterred, appealed to the Court of Appeal.

3. The Court of Appeal’s Radical Stance: A Glimmer of Hope

The Court of Appeal’s decision in Fawehinmi v. Abacha represented a pivotal moment, offering a glimmer of hope for constitutionalism and human rights in Nigeria. The Court of Appeal boldly asserted that the African Charter on Human and Peoples’ Rights, having been domesticated into Nigerian law, stood on a higher pedestal than ordinary domestic statutes and military decrees. It reasoned that the African Charter, as an international human rights instrument, was intended to safeguard fundamental rights, and its provisions could not be easily overridden by decrees, even those containing ouster clauses.

The Court of Appeal held that while the decrees might have suspended Chapter IV of the 1979 Constitution, they did not expressly suspend or repeal the African Charter (Ratification and Enforcement) Act. Therefore, the rights guaranteed by the Charter remained enforceable. This interpretation was seen as a radical departure from the traditional positivist approach often adopted by Nigerian courts in the face of military decrees, which tended to prioritize the clear and unambiguous wording of decrees, even if they undermined fundamental rights. The Court of Appeal, therefore, remitted the case to the Federal High Court for a hearing on the merits.

This decision was met with both acclaim from human rights advocates and apprehension from the military government, setting the stage for a monumental showdown at the Supreme Court.

4. The Supreme Court’s Verdict: A Positivist Reaffirmation

The military government, through General Sani Abacha and the other respondents, appealed the Court of Appeal’s decision to the Supreme Court. The core issues before the apex court revolved around:

• The status of the African Charter on Human and Peoples’ Rights in Nigerian law, particularly its relationship with military decrees containing ouster clauses.
• The extent to which ouster clauses in military decrees could effectively strip courts of their jurisdiction to protect fundamental rights.
• Whether the arrest and detention of Chief Fawehinmi violated his fundamental rights under the 1979 Constitution and the African Charter.

The Supreme Court, in its judgment, adopted a more positivist and conservative approach compared to the Court of Appeal. The Court, led by Ogundare JSC, affirmed the dualist nature of international law in Nigeria, stating that for an international treaty to have the force of law in Nigeria, it must be domesticated by the National Assembly (or its equivalent during military rule). While acknowledging that the African Charter had indeed been domesticated, the Court held that it did not enjoy a higher status than other domestic laws.

Crucially, the Supreme Court upheld the validity of the military decrees containing ouster clauses. It reasoned that the language of these decrees was clear and unambiguous in its intent to suspend Chapter IV of the 1979 Constitution and oust the jurisdiction of courts to entertain challenges against executive actions taken under those decrees. The Court emphasized that it was bound to apply the law as it existed, even if it led to an undesirable outcome from a human rights perspective.

The Supreme Court rejected the argument that the African Charter, by virtue of its human rights character, superseded the military decrees. It held that in a conflict between a domestic statute (like the African Charter Act) and a military decree, the decree, being the “supreme law” during military rule, would prevail. The Court essentially prioritized the legal framework established by the military regime over the equitable considerations of human rights.

Consequently, the Supreme Court dismissed Fawehinmi’s appeal, upholding the preliminary objection that the courts lacked jurisdiction due to the ouster clauses. General Abacha’s name was also struck out from the suit due to the principle of sovereign immunity enjoyed by the Head of State. This meant that Fawehinmi was left without judicial remedy for his unlawful detention, a devastating blow to the pursuit of justice under military rule.

5. Analysis of the Judgment: A Deep Dive into Legal Reasoning

The Supreme Court’s decision in Fawehinmi v. Abacha is a complex tapestry of legal principles, judicial philosophy, and political realities.

5.1. The Dualist Approach to International Law: The judgment firmly reiterated Nigeria’s dualist legal system, where international treaties do not automatically become part of domestic law upon ratification. They require legislative domestication. This principle, while generally accepted, became problematic when a domesticated treaty, like the African Charter, clashed with decrees enacted by an unelected military government. The Court held that despite domestication, the Charter did not attain a superior status that would allow it to override subsequent, conflicting military decrees.

5.2. The Supremacy of Military Decrees and Ouster Clauses: This was the central plank of the Supreme Court’s reasoning. The Court adhered to a strict literal interpretation of the ouster clauses, holding that their plain meaning clearly divested the courts of jurisdiction. This approach, rooted in legal positivism, prioritizes the enacted law, regardless of its moral implications or impact on fundamental rights. The Court essentially argued that its role was to interpret and apply the law as it was, not to question its wisdom or morality, especially in the context of a military government that derived its authority from fait accompli.

5.3. The Unseen Power of the Constitution (or its Suspension): While the 1979 Constitution was not completely abrogated by the military, crucial parts, particularly Chapter IV on fundamental rights, were suspended or modified by decrees. The military effectively created a “new legal order” where their decrees were supreme. The Fawehinmi case starkly highlighted how a written constitution, even one with provisions for fundamental rights, could be rendered ineffective in the face of a military regime that systematically undermines its core principles. The judgment underscored the fragility of constitutional protections when the military seizes power and asserts its legislative supremacy through decrees.

5.4. Judicial Independence Under Duress: The Fawehinmi decision is often cited as an example of the judiciary’s vulnerability under authoritarian rule. Critics argue that the Supreme Court, by upholding the ouster clauses, effectively abdicated its constitutional responsibility to protect fundamental rights and act as a check on executive power. The argument is that while judges are bound by the law, they also have a duty to uphold the spirit of the constitution and protect human rights, especially when those rights are under threat. However, it’s also important to acknowledge the immense pressure under which judges operated during such a volatile period, with the potential for direct repercussions for rulings perceived as hostile to the military government.

6. The Enduring Legacy and Impact on Nigerian Jurisprudence

Despite the immediate disappointment for human rights advocates, Fawehinmi v. Abacha left an indelible mark on Nigerian jurisprudence and constitutionalism.

6.1. Clarification of the African Charter’s Status: The case undeniably clarified the dualist approach to international law in Nigeria. While it affirmed the enforceability of domesticated treaties, it simultaneously highlighted their vulnerability to conflicting domestic legislation, particularly military decrees, at least under the then-existing legal framework. This prompted further discussions on how to ensure the supremacy of human rights instruments in the face of domestic legislation.

6.2. The Resilience of Activism and the Rule of Law: Even though Fawehinmi lost the case, his relentless pursuit of justice, even from detention, showcased the power of individual courage and the enduring importance of challenging governmental impunity. His actions, and the media attention they garnered, kept the flame of human rights advocacy alive during a dark period in Nigerian history. The case became a symbol of resistance against military tyranny and a testament to the unyielding spirit of those who believed in the rule of law.

6.3. A Catalyst for Constitutional Reform and Judicial Activism: The experience of cases like Fawehinmi v. Abacha undoubtedly contributed to the broader demand for a more robust and resilient constitutional framework upon Nigeria’s return to civilian rule in 1999. The 1999 Constitution, while retaining some elements of its predecessors, sought to strengthen human rights provisions and judicial independence. The era of military rule and the challenges faced by the judiciary in upholding fundamental rights also arguably fostered a greater inclination towards judicial activism in the post-military era, with courts becoming more assertive in their role as guardians of the Constitution.

6.4. The Continuing Debate on Ouster Clauses: The debate surrounding ouster clauses remains relevant, even in a democratic setting. While outright ouster clauses of the kind seen during military rule are less common, legislative attempts to limit judicial review of administrative actions or to insulate certain decisions from judicial scrutiny still occur. Fawehinmi v. Abacha serves as a powerful historical precedent highlighting the dangers of such clauses and the importance of preserving judicial oversight as a cornerstone of the rule of law.

6.5. The Primacy of the Constitution (in a Democracy): While the Supreme Court’s decision in Fawehinmi v. Abacha reflected the grim realities of military governance, it inadvertently underscored the fundamental principle that in a truly democratic dispensation, the Constitution is and must remain supreme. Upon Nigeria’s return to democracy, the 1999 Constitution explicitly declared itself supreme, and any law inconsistent with its provisions is void to the extent of the inconsistency. This principle, which was effectively suspended during military rule, is now a fundamental tenet of Nigerian constitutional law, largely informed by the lessons learned from the period of military excesses and the struggles fought by individuals like Gani Fawehinmi.

7. Zero Blind Spot: Addressing Potential Nuances and Criticisms

No legal analysis is complete without acknowledging potential “blind spots” or alternative perspectives.

7.1. The “Doctrine of Necessity”: Some might argue that the Supreme Court’s positivist stance was influenced by the “doctrine of necessity,” which posits that in times of extreme crisis (like a military coup), actions taken to maintain order, even if unconstitutional, can be validated by necessity. However, this doctrine is highly controversial and often invoked to legitimize illegal seizures of power. While the military government’s authority was de facto, recognizing its decrees as de jure supreme had profound implications for the rule of law.

7.2. The Judge’s Dilemma: It is crucial to empathize with the unenviable position of judges under military rule. To rule against the military government could have dire personal consequences, including detention, harassment, or even worse. The judiciary, as an institution, also faces the imperative of self-preservation. A complete frontal assault on military decrees might have led to the outright dismantling of the judiciary, leaving citizens with no recourse whatsoever. The Court’s decision, therefore, can be viewed by some as a pragmatic choice to maintain some semblance of judicial presence, however constrained, rather than an outright surrender. However, this argument does not diminish the profound impact on human rights.

7.3. The Role of Civil Society and International Pressure: While the legal battle played out in court, it was complemented by robust activism from civil society organizations and considerable international pressure against the Abacha regime. These external factors, though not directly influencing the Supreme Court’s judgment in the Fawehinmi case, were crucial in the broader fight for democracy and human rights.

7.4. The Evolution of Judicial Review: Post-military rule, Nigerian courts have demonstrated a more assertive stance in judicial review, scrutinizing legislative and executive actions more vigorously. The experiences of cases like Fawehinmi v. Abacha provided valuable lessons and arguably strengthened the resolve of the judiciary to uphold constitutionalism in a democratic setting.

Conclusion: The Enduring Power of a Principle

The case of Fawehinmi v. Abacha serves as a powerful and complex narrative in Nigeria’s constitutional journey. It is a story of a brave individual’s unwavering commitment to justice in the face of overwhelming state power, and a judiciary grappling with the difficult task of upholding the rule of law under an authoritarian regime. While the Supreme Court’s decision upheld the military’s decrees, it did so by interpreting the law as it stood under a regime that had effectively suspended significant parts of the existing constitutional order.

Ultimately, the case underscores a timeless truth: the true power of a constitution lies not merely in its written words, but in the political will to uphold its principles, the independence of its institutions, and the courage of individuals to defend its ideals. The struggles of Chief Gani Fawehinmi and the insights gleaned from cases like Fawehinmi v. Abacha have contributed immeasurably to the continuing evolution of constitutionalism in Nigeria, serving as a powerful reminder that the fight for the supremacy of the Constitution and the protection of fundamental human rights is a perpetual endeavor, especially in nascent democracies.

The legacy of this case continues to inform legal discourse, inspire human rights activism, and reinforce the imperative for a robust and independent judiciary as the ultimate guardian of the Nigerian Constitution.