Posted: 17 February, 2025 Filed under: Oluwatosin Senami Adegun, Yeabsira Teferi | Tags: 1999 Constitution, Abacha v Fawehinmi, African Charter Act, Houses of Assembly, human rights, legislative powers, National Assembly, Nigeria, Nigerian constitutions, peoples’ rights, public institutions, socio-economic rights
Author: Oluwatosin Senami Adegun
Centre for Human Rights, University of Pretoria
Introduction
By section 12(1) of the Constitution of the Federal Republic of Nigeria of 1999 (1999 Constitution), for a treaty to which Nigeria is a party to have the force of law in Nigeria, the National Assembly must enact such treaty into law. This was the same provision under the Constitution of the Federal Republic of Nigeria of 1979 (1979 Constitution) which was the Constitution in force in 1983 when the National Assembly domesticated the African Charter on Human and Peoples’ Rights by enacting the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act of 1983 (African Charter Act). Section 12 of the 1979 Constitution is the same under the 1999 Constitution. For the purpose of this article, more references will be made to the 1979 Constitution being the Constitution in force when the African Charter Act was enacted.
Though it has been 41 years since the African Charter Act was enacted, considering division of legislative powers between the National Assembly and states’ Houses of Assembly under past and extant Nigerian constitutions, this article interrogates the question of the exclusive legislative competence of the National Assembly to make a law on human rights, that is the African Charter Act for the whole federation. Where it is found that the National Assembly does not have the exclusive legislative competence to enact the African Charter Act, the article further answers the question whether majority of the states’ Houses of Assembly which existed in 1983 ratified the African Charter Act, and the implications for the African Charter Act where there was no such ratification.
Significance of the issues raised in this article
The African Charter Act is invaluable to the enforcement of human rights in Nigeria especially on issues of justiciability of socio-economic rights and enforcement of peoples’ rights. Thus, the question of its applicability to the whole federation needs to be ascertained especially where a right to be enforced is better protected under the African Charter Act than Chapter IV of the 1999 Constitution. Also, to demand that public institutions at all levels of government particularly the executive and the parliament ensure the performance of their functions are compatible with the African Charter Act, and for all Nigerian courts to better appreciate and apply principles enunciated by the African human rights mechanisms on interpretation of the African Charter, it is essential for the issues raised to be addressed.
Does the National Assembly have exclusive legislative power to enact the African Charter Act?
Nigeria is a federal State and legislative powers are divided between the National Assembly and states’ Houses of Assembly. Thus, by section 4(2) and (3) of the 1979 and 1999 Constitutions, the National Assembly has the exclusive legislative competence to enact laws on any item on the exclusive legislative list, while section 4(4) of both Constitutions provides that the National Assembly and the states’ Houses of Assembly have the legislative competence to enact laws on items on the concurrent legislative list to the extent set out in the columns opposite thereto. Thus, any matter that is neither in the exclusive nor the concurrent lists are regarded as residual and such residual matters are within the legislative competence of the states’ Houses of Assembly.
‘Human rights’ (or any similar words) is not stated in any of the legislative lists. Mention of the National Assembly in section 42(4) of the 1979 Constitution (section 46(4) of the 1999 Constitution) in relation to human rights enforcement is with regard to the power of the National Assembly to make law to give more powers to the high courts in addition to the powers stated in section 42(2) of the 1979 Constitution (section 46(2) of the 1999 Constitution) for effective adjudication of human rights cases. Item 29 of Part I, Second Schedule to the 1979 Constitution which is the exclusive legislative list (item 31 in the 1999 Constitution) makes provision for ‘implementation of treaties relating to matters on this list’ as being within the exclusive competence of the National Assembly. However, ‘human rights’ is not one of the matters on the list. These Constitutions are therefore silent on the exclusive power of the National Assembly to make law on ‘human rights’ including individual and peoples’ rights. Arguably, the absence of ‘human rights’ in the exclusive and the concurrent lists means that ‘human rights’ is a residual matter and as such, enactment of a law on human rights like the African Charter Act is residual.
Did majority of the states’ Houses of Assembly ratify the African Charter Act?
With the above context in mind, it is instructive to note that section 12(2) of the 1979 Constitution (same under the 1999 Constitution) provides that the National Assembly can enact laws for the federation on any matter not included in the exclusive legislative list for the purpose of implementing a treaty, and section 12(3) provides that a bill for the purpose of enacting such law shall neither be enacted nor presented for presidential assent unless the bill is ratified by majority of all the Houses of Assembly of the federation. By Section 3(1) of the 1979 Constitution, there were 19 Houses of Assembly when the African Charter Act was enacted. The preamble to the African Charter Act and the decision of the Nigerian Supreme Court in Abacha v Fawehinmi provide no details as to whether ratification of majority of the states’ Houses of Assembly was sought and obtained before the African Charter Act was enacted and no evidence of such ratification could be found at the time of writing this article. Thus, as is the case with the Child’s Rights Act of 2003 and the Violence Against Persons (Prohibition) Act of 2015 which are domestication of treaty provisions like the African Charter on the Rights and Welfare of the Child, where in an attempt to domesticate a treaty, the National Assembly enacts a law on a residual matter without the ratification of majority of the states’ Houses of Assembly, such law will be regarded as a federal law, which would have to be domesticated by the states’ Houses of Assembly. The judicial application of the African Charter Act over the years has been on the assumption that the Act applies to the whole federation without any need for domestication by states’ Houses of Assembly.
Implication where no ratification by states’ Houses of Assembly is ascertained
Within the context of the above analysis, it is submitted that unless any record is found to show that the majority of the states’ Houses of Assembly which existed in 1983 ratified the African Charter Act, the African Charter Act is in principle a federal law which has no binding effect on the legislative and executive institutions in the states. It is pertinent to point out that though the Supreme Court in Abacha v Fawehinmi held that the African Charter Act is justiciable in Nigerian Courts, a reading of the judgment shows that the courts referred to are the high courts (the Federal High Court, the states’ High Courts and the High Court of the Federal Capital Territory) being courts with original jurisdiction to adjudicate human rights cases as provided in section 42(1) of the 1979 Constitution(section 46(1) of the 1999 Constitution).
Way forward
One way to address the seeming lack of clarity concerning the applicability of the African Charter Act throughout the federation is for the National Assembly to amend the 1999 Constitution to include the Act among the existing laws listed in section 315(5) of the 1999 Constitution, through which it will be deemed to relate to matters in the exclusive legislative list. By such inclusion, the Act cannot be amended like ordinary legislation as its amendment must follow the procedure set out in section 9(2) of the 1999 Constitution. Such inclusion makes it a federal law that applies to the whole federation, needing no domestication of states’ Houses of Assembly for it to apply to states and their institutions.
Suffice it to conclude that the verbatim domestication of the African Charter through the enactment of the African Charter Act is not enough, as the analysis in this article has shown. There is need to ensure the foundation of the Act is solid for every part of Nigeria to benefit from its provisions especially with regard to ensuring states and local government institutions take account of its provisions in the performance of their duties.
About the Author:
Oluwatosin Senami Adegun is a Nigerian legal practitioner. She is a PhD candidate at the Centre for Human Rights, University of Pretoria. She earned her Bachelor of Laws from the University of Lagos, Nigeria and her Master of Laws at the Centre for Human Rights, University of Pretoria in South Africa. She majors in litigation and academic research on human rights issues, and has litigated human rights cases at the national, sub-regional and regional human rights systems in Africa.
