THE CHALLENGES OF DOMESTICATING THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS Holus Bolus: THE CASE OF NIGERIA

Abstract

Against the background and Africa's abhorrent record on human rights violations, there were calls from within and outside the continent, for an African Human Rights Charter. The said Charter was adopted in the Nairobi Conference of Heads of State and Government in 1986. It was incorporated into Nigerian Law as the African Charter on Human and Peoples' Right (Ratification and Enforcement) Act. This Charter, despite its importance has suffered poor implementation. This paper examines the challenges faced in the domestication and implementation of the African Charter on Human and Peoples Rights. The paper finds that there is a discriminatory disposition of the 1999 Constitution of the Federal Republic of Nigeria with respect to the rights enshrined in the Charter which defeats the whole essence of the regime of rights procured by the African Charter

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THE CHALLENGES OF DOMESTICATING THE AFRICAN
CHARTER ON HUMAN AND PEOPLES’ RIGHTS Holus Bolus:
THE CASE OF NIGERIA
Dr. Onyeka Williams Igwe
Faculty of Law, Rivers State University of Science and Technology
Nkpolu-Oroworukwo, Port Harcourt, Nigeria
Tel: +234 8039113237 E-mail: wllmsgw2@gmail.com
Received: 2014-11-05
Accepted: 2014-11-08
Published:
Abstract
Against the background and Africa’s abhorrent record on human rights violations, there were calls from within and
outside the continent, for an African Human Rights Charter. The said Charter was adopted in the Nairobi
Conference of Heads of State and Government in 1986. It was incorporated into Nigerian Law as the African
Charter on Human and Peoples’ Right (Ratification and Enforcement) Act. This Charter, despite its importance has
suffered poor implementation. This paper examines the challenges faced in the domestication and implementation of
the African Charter on Human and Peoples Rights. The paper finds that there is a discriminatory disposition of the
1999 Constitution of the Federal Republic of Nigeria with respect to the rights enshrined in the Charter which
defeats the whole essence of the regime of rights procured by the African Charter
Keywords: Nigeria, African Charter, Human Rights
1. Introduction
Human rights have become internationalized. The European region had in 1950, procured the European Convention
on Human Rights whilst the Americas had the Inter-American Convention on Human Rights in 1969. With this
background and Africa’s abhorrent record on human rights violations including slavery and slave trade, colonialism,
apartheid, military and dictatorial regimes (some associated with looting the national treasuries of their States), there
was an urgent need, even pressure, both from within and outside the continent, for an African Human Rights
Charter. Agitations were even stirred at the UN level in the same direction.1
Concerned with this need, there was the Pan – African collaboration on human rights as initiated by the International
Commission of Jurists which organized a conference of jurists in Lagos. “The Laws of Lagos” was a consequence of
this conference. It contained inter alia a demand for an African Human Rights Charter complemented with a human
rights court. It was President Sedar Senghor of Senegal who secured the resolution of the OAU to direct the
Secretary-General of the OAU to set the machinery in motion for an African Charter. The said Charter was adopted
1 Igwe O.W. (Ph.D), Ag. HOD, Dept of Jurisprudence and Int’l Law, Faculty of Law, Rivers State University of Science and Te chnology, Port
Harcourt, Rivers State. E-mail: wllmsgw2@gmail.com.

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in the Nairobi Conference of Heads of State and Government in 1986. It was incorporated into Nigerian Law as the
African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act2.
Having suspended Chapter 4 of the 1979 Constitution, the military regimes of Ibrahim Babanginda and Sani Abacha
felt unlimited to further violate the human rights of Nigerians. But with the aid of the African Charter which Nigeria
had domesticated, thus, becoming part of the domestic law, the violated became legally emboldened to challenge the
violations of their human rights which the Nigerian Military Governments had frustrated through the regime of
ouster clauses to neutralize and incapacitate.
2. The Rights Protected under the African Charter on Human and Peoples’ Rights
2.1. Civil and Political Rights
2.1.1. Unrestricted Rights
The Charter guarantees the following rights unrestricted, the rights to equality before the law, human dignity and
inviolability. Further, it prohibits all forms of degrading treatment and exploitation, particularly slavery, torture and
degrading punishment. Fair hearing is guaranteed and Article 7 lists the elements thus: the rights to be heard, to
appeal, presumption of innocence, right to defence by counsel of one’s choice, and trial within a reasonable time by
an impartial court or tribunal. Article 7(2) prohibits retroactive criminal legislation and insists that only the offender
may be punished personally.
2.1.2. Restricted Rights
The qualified rights include the right to life, liberty, freedom of conscience, freedom of expression, freedom of
association, assembly and movement. The provisions are short of making express derogations, rather it preferred:
“except for reasons and conditions previously laid down by law”, “subject to necessary restrictions provided for by
law”, and “in accordance with law”. Unlike the Nigerian Constitution of 1999 that stated “reasonably justified in a
democratic society” or the European Convention that employed the phrase “strictly required by the exigencies of the
situation”, the Charter did not make any such references. There was no specific provision of the right to form trade
unions as is with the European and Inter-American conventions, excepting incorporating same in Article 10(2)
which makes reference to Article 29.
2 Cap 10, Laws of the Federation.

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Article 13 secures the right of everyone to participate in government directly or through freely chosen
representatives in accordance with the provisions of the law. This provision contemplates prohibition of military
coups in Africa, which has become embarrassing. Again no special provision was made for emergencies.
The Charter secures the independence of the judiciary and provides in Article 12(3) that any person may leave a
country, including his own and, may seek asylum in other countries if persecuted. It guarantees “equal access to the
public service” and to “public property and services”. Prohibition is placed on discrimination against permanent
residents of a federation on the basis of the origin of their ancestors. The emphasis on equality is with respect to the
individuals and the units of a state and Article 12(5) prohibits mass expulsion of non-nationals. “Mass expulsion
shall be that which is aimed at national, racial, ethnic or religious groups”. But this does not erode a state’s
competence to determine the conditions of entry for non-nationals. But once admitted, an alien becomes entitled to
certain rights, including the right to be expelled after due process. The right to receive information and, also, to
express and disseminate one’s opinion is guaranteed in Article 9.
Article 14 protects the right to property but provides that it may “be encroached upon in the interest of public need
or in the interest of the community and in accordance with the provision, of appropriate law. No mention is made of
the level of compensation whether “prompt, effective and adequate”3 or according to UN Standard of “appropriate”
or “reasonable”.
In Article 15, the Charter guarantees the right to work under equitable and satisfactory conditions and equal pay for
equal work. Individuals are entitled by virtue of Article 16 to enjoy “the best state of physical and mental health”. In
Article 16(2), a state is obliged not only to protect the health of the people, but further, “to ensure that they receive
medical attention when they are sick”. Article 17 guarantees the right to education, strangely though, this right is not
limited to any level. It may mean that it includes primary, secondary, tertiary, vocational and adult education.
2.1.3. Group Rights
The Charter in Article 20 asserts the controversial right to self-determination of the people enabling them to freely
determine their political, economic and social development. This right is dented with doubts as to its content and
3 See: Note of 3 August, 1938 reproduced in US Department State Bulletin, Compensation for American Owned Lands Expropriated in Mexico
(Inter-American Series No. 16, 1938).

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who is entitled to exercise it. More so, it is feared that the realization of this right will encourage secession and the
break-up of sovereignty.
It is generally accepted that the right entails the right of any people to determine their future. This according to a
learned writer “may assume the form of unitarism, federalism and confederalism or any other relations acceptable to
the people”.4 The component of a State that exercises it must have a reasonably identifiable interest and the more
substantial the number in the group, the more effectual its realization. The exercise of this right cannot be carried out
in isolation as it must take cognizance of other principles of law such as sovereignty, territorial integrity and non-
interference in internal affairs. But political and military realities cannot be ruled out.
Some claims of this right have succeeded whilst others have failed with dire consequences. It is desirable that
legitimate claims to self-determination succeed so that good governance and democracy will be enthroned which
will be the evidence of manifestation of the right.5 It has become customary that colonized people are entitled to
independence even with external support and use of force, “nothing shall justify the domination of a people by
another”, so declares the Charter.6 This declaration is mainly directed to states with heterogeneous societies since
experience has shown that independence does not automatically guarantee the rights of all peoples in the state to
actively participate in government or alternatively be left to carry on as they can best do. This realization informed a
learned writer’s position that: “This confirms our view that long after the demise of colonialism, self-determination
shall still be relevant to people in metropolitan territories. It must not be thought of only in the colonial context”.7
Article 21 of the Charter provides that people are entitled to dispose of their natural wealth and resources and to
lawful recovery or compensation in the event of spoliation or dispossession. In Article 21(5), states are called upon
to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies. The
right to national and international peace and security is guaranteed. All peoples have the right to equal enjoyment of
the common heritage of mankind.
4 U.O Umezurike, African Charter on Human and People’s Rights, Martinus Nighoff Publishers, the Hague, 1997, p.28.
5 See, U.O. Umezurike, Self-Determination in International Law, Archan Books, Connecticut, 1992 Passim.
6 Ibid, Chapter 8.
7 U.O. Umezurike, “The African Charter and National Law: The Issue of Supremacy”, in current themes in the Domestication of Human
Rights Norms, Forth Dimension Publishing Co. Ltd. Enugu, 2003, p.29.

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Women, children, the aged and the disabled (or challenged) are the four groups of persons that are marked out for
special protection. States are obliged to ensure the exercise of the right to development and create a favourable
environment for its realization.8 These rights are referred to as the first, second and third generations of rights,
respectively. It was emphasized that they are so called not due to the fact that one group of rights develops and then
dies for the subsequent one to emerge but that it reflects the time of their recognition in international law.
2.1.4. The Duties
The Charter took a further step by including duties in an international human rights instrument.9 The practice has
been to enumerate rights and imply duties. In Chapter 11, Articles 27 to 29, the Charter recognized the duties of an
individual to the family – preserve its harmonious development and cohesion, respect parents and maintain them in
case of need. There is duty to the Nation – serve the nation, preserve its independence, integrity, security and
solidarity and pay taxes. Also, the individual owes duties to the international community and other legally
recognized bodies. Further, there is a duty to preserve positive African cultural values and to achieve African unity.
But the process of enforcing these duties was not contemplated as it was not provided for.
In Part II: Measures of Safeguard, Chapter 1, Articles 30 to 45, the African Charter imposes the duty of enforcing
the Charter on the African Commission which consists of eleven members. The functions of the Commission are to
promote and protect human rights, lay down the principles for legislation on matters of human and peoples’ rights,
interpret the Charter at the request of the OAU, its organs or organizations recognized by it and carry out other
functions assigned to it by the Assembly of Heads of State and Government.
Based on the foregoing, it has participated in observing elections as part of OAU observer team. With the
promotional responsibilities, it has organized and participated in the organization of seminars, symposia, and
conferences. With the duty to “protect”, it has considered complaints from state parties against other states that were
considered to have breached the provisions of the Charter. But so far, the greater numbers of complaints have come
from individuals, groups and non-governmental organizations.
8 See K. Vasak, “A Thirty-Year Struggle – T he Efforts to give Force of Law to the Universal Declaration of Hu man Rights”, UNESCO Courier,
(Nov. 1977). For criticism, see, R. Rich, “The Right to Development. A Right of Peoples?” In J. Crawford, The Right of Peoples 39 – 43.
9 Prof. U.O. Umozurike saw it as breaking “new grounds” by the Charter.

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Upon receipt of a complaint, the Commission considers it for preliminary admissibility under Article 56 of the
Charter and its Rules of Procedure and refers it to the state complained against. The Commission may call for oral
evidence and then tries to reconcile the parties and restore good relations and then reports its activities to the
Assembly of Heads of States. It may also refer urgent and serious situations of human rights violations to the
Assembly of Heads of State.10
2.1.5. Rights not Expressly Provided/Defined
Despite making references to “peoples”, the African Charter did not define it. The clarification of this expression,
especially in the context of the African Charter is crucial, more so, given the seeming ambiguity created in Article
21 of the Charter. Paragraph 1 of Article 21 refers to the rights of ‘all peoples’ to freely dispose of their wealth and
natural resources, but paragraph 4 refers to: “The right of States parties to the prevent Charter” to exercise the right
to freely dispose of their wealth and natural resources. James Crawford observed that “what was originally treated as
a right of peoples is here treated as a right of States, thus casting doubt upon the legitimacy of the assertion that
peoples have a right to permanent sovereignty over their natural resources”.11 But in the view of Richard N.
Kinwanuka, the term “peoples” in the Charter was not defined by its drafters “so as not to end up in difficulties”.12
Really, the absence of a definition may allow the term “people” to be interpreted in an expansive and imaginative
manner, it is hard to escape the inference that the lack of definition of ‘peoples’ in the African Charter, despite its
full entrenchment, may have been influenced by political considerations. James Crawford had argued that given its
entrenchment in human rights treaties such as the ICESCR, “the precedent for treating questions, of permanent
sovereignty over natural resources as rights of peoples’, rather than as rights of States, is an established one”13.
Further, he argues that the principle of permanent sovereignty over natural resources has the capacity of operating as
a guarantee of peoples against their own governments, thus limiting the capacity of governments in the interest of
the community.14 His view which we feel is compelling is that Article 21 of the African Charter makes a state’s
natural resources policy justiciable in the African Commission.15
10 Sees Article 58.
11 James Crawford, “T he Rights of Peoples: Some Conclusions”, in The Rights of Peoples (James Crawford eds), Clarendon Press Oxford,
1995, p.170
12 Richard N. Kinwanuka, “The Meaning of “Peoples” in the African Charter on Human and Peoples’ Rights”, 80 A.J.I.L. (1988), p. 82.
13 James Crawford, “The Right of Peoples: ‘Peoples’ or Governments” in The Rights of Peoples (James Crawford ed), Clarendon Press Oxford,
1995, 55 at 63.
14 See id. At 64.
15 See id.

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Although the Commission did not define the term “people” in the Ogoni Case,16 it found that the right of the Ogoni
people to dispose of their wealth and natural resources, among others, had been violated, thereby implicitly
recognizing that the Ogoni local population are “people” within the context of the African Charter. Therefore, it
would seem that, contrary to the pessimism expressed, for example, by Philip Alston17 about the ability of the
African Charter to serve as a tool for the progressive development of peoples’ rights enshrined in the Charter, the
African Commission has demonstrated that it could act to give meaning and validity to the Charter’s recognition of
peoples’ rights.
Indeed, the African Commission has provided further conceptual clarifications of “people” in the context of the
African Charter. In the said case involving Nigeria,18 the Commission found the country to have breached its
obligation to respect, protect, promote and fulfill rights guaranteed by the Charter, and held Nigeria to be in
violation of several rights in the Charter, including the right to freely dispose of their wealth and natural resources.
The facts of the case are that the petitioners alleged that the operations of the Nigeria military government through
its state oil company, the Nigerian National Petroleum Company (NNPC) as majority shareholder in a consortium
with Shell Petroleum Development Corporation (SPDC) had caused environmental degradation and health problems
resulting from the contamination of the environment among the Ogoni people.19 Also alleged by the petitioners is
that the consortium disposed of toxic waste in violation of applicable environmental standards and caused numerous
avoidable spills near villages, consequently poisoning much of the region’s soil and water.20
Further, the petitioners alleged that the Government aided these violations by placing the state’s legal and military
powers at the disposal of the oil companies; and that the Government, through its security forces, killed innocent
civilians and attacked, burned, and destroyed villages, homes, crops, and farm animals.21 Finally, the petitioners
alleged that the Government failed to monitor the activities of the oil companies, provided no information to local
16 The Social and Economic Rights Action Centre (SERAC) and the Center for Economic and Social Rights (CESR) v. Nigeria, Communication
155/96, in Fifteenth Activity Report of the African Commission on Human and Peoples’ Rights 2001 – 2002, ACHPR/RPT. 15 Annex V.
17 Philip Alston, Peoples’ Rights: The Rise and Fall, in Peoples’ Rights, Clarendon Press Oxford, 2001, 259, 287.
18 For a commentary on the decision, see Dinah Shelton, “Decision Regarding Communication 155/96 (Social and Economic Rights
Action/Centre for Economic and Social Rights v. Nigeria)”, 96 A.J.I.L., 2002, p. 937.
19 See id. Para. 1.
20 See id. Para 2.
21 See id. Para 3.

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communities, conducted no environmental impact studies, and prevented scientists from undertaking independent
assessments.22
The Commission in its decision stated that the obligations of governments under the African Charter include
obligations to respect, protect, promote and fulfill the guaranteed rights. More so, it stated that these obligations
“universally apply to all rights and entail a combination of negative and positive duties”.23 In a very strong
statement, the Commission said that, “there is no right in the African Charter that cannot be made effective”.24
While holding that Nigeria has the right to produce oil, the Commission nonetheless held that the country had not
protected several rights contained in the Charter, including the right of the people freely to dispose of their natural
wealth and resources. The Commission also held that the lack of involvement of the Ogoni people in the decisions
that affect them constitutes a violation of Article 21, and asked the Nigerian Government to ensure adequate
compensation for victims of violations.25
The African Charter does not contain the right to adequate food, and freedom from hunger and malnutrition but the
mandate of the African Commission under the Charter, including Articles 60 and 61, may be interpreted generously
to accommodate some elements of these rights. The Commission has in fact read the right to food into the Charter
provisions on the right to life guaranteed in Article 4 and the right to health in Article 16.26
In the learned view of the Commission, the right to food is “inseparably linked to the dignity of human beings and is
therefore essential for the enjoyment and fulfillment of such other rights such as health, education, work and
political participation”.27 The Commission therefore held that the treatment of the Ogoni people by the Nigerian
government in that case violated the minimum duties that it had towards ensuring the right to food through
destroying food sources; allowing private oil companies to destroy food sources, and creating significant obstacles
in the ability of the peoples to feed themselves.28
The right to housing is not expressly provided for in the African Charter. Notwithstanding this lacuna, the African
Commission has upheld a right to housing, including subsidies and tax incentives to expand housing construction to
22 See id. Para. 4 and 5.
23 Id. Para. 44.
24 Id. Para. 68.
25 Id. Para. 58.
26 See, The Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v. Nigeria,
Communication 155/96.
27 See id. Para. 64.
28 See id. Para. 66.

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meet the needs of all categories of the population, particularly low income families; the use of scientific and
technical knowledge and of international cooperation for developing and improving housing construction, including
safety measures against earthquakes, floods and other natural hazards; special problems of housing, water supply
and sanitary conditions in rural areas; the protection of tenants, such as rent control and legal guarantees.29
Further, the Commission has interpreted housing needs in relation to women as involving an obligation upon state to
provide the right to equal access to housing and to acceptable living conditions in a healthy environment. In the
Ogoni case, the Commission underscored two fundamental elements in the realization of the right to housing: The
prohibition on state parties not to destroy houses and not to obstruct efforts by individuals and communities to
rebuild lost homes. Accordingly, “the right to housing goes beyond having a roof over ones head. It extends to
embody the individual’s right to be let alone and live in peace – whether under a roof or not”.30 Therefore, States
and their agents must not engage in any act that obstructs the enjoyment of the core contents of the right to
housing.31
3. Legal Status of the Treaties as Applicable to Nigeria
3.1. The Legal Status of Unsigned Treaties
Ordinarily the status of unsigned treaties on the domestic laws of a state may not present a difficulty in ascertaining
since the guiding principle should be pacta sunt servanda. Seen in this context, the principle must mean not just that
‘promises shall be kept’, as is so often assumed, but more specifically and literally, that ‘agreement shall be
followed’. Indeed, it is the multi-party, or relational, dimension of pactum that is central to the assumption of
obligations in treaty law. In this sense therefore, it may seem that a state that is not a signatory to a treaty may not
incur as a general rule any obligation either at the domestic level or international level respecting the provisions of
that instrument. This position must be taken with some caution since a new trend has emerged in international
human rights law where more and more international rules have emerged, addressing themselves directly to
individuals, either by imposing obligations or by granting rights. These rules intend to, and do, reach individuals
directly, that is, not through the medium of the municipal law of states. The rules become operative as soon as they
emerge, regardless of what is provided for in any particular national legal systems, and even contrary to possible
national rules.
29 See Guidelines for National Periodic Reports, Para. II. A. 34.
30 See communication 155/96, Para. 61.
31 Id. Para. 60.

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In this regard, it must be pointed out that most instruments in International Human Rights Law contain similar
provisions. The earlier instruments may have established certain principles that have become generally accepted and
these principles may find themselves again in subsequent instruments. The implication of this is that whilst a state
may not be directly bound by an instrument, may be, because she has not signed it, nonetheless, that state may be
bound by the existing principles, acceptable in practice, which again is reflected in the subsequent instrument. And
so the mere fact that a treaty may not bind a state is not all, the principles established in the treaty having being
earlier accepted may bind that state. For the commonwealth countries this position has become clarified by virtue of
a series of high level judicial colloquia by judicial officers, firstly in India in 1988. The reason for these series of
meetings was to procure general principles that will guide the domestic application of International Human Rights
norms in the common law jurisdictions. The principles are referred to as “the Bangalore Principles”. They have been
reviewed, elaborated and even further re-affirmed. In sum, the Bangalore principles are clear statements of the
nature of the relationship between domestic courts and international human rights laws. It maintains most
importantly that the domestic provisions of human rights are directly the expression of the existing basic
international human rights rules. It recognizes that domestic courts enforce municipal laws but insists that where
there is a gap in the local laws or in fact, the local provisions are inconsistent with a state’s obligation in
international law, recourse should be had to international norms.
3.2. Legal Status of Unratified but Signed Treaties
It may be improper to classify treaties as non ratified and non domesticated, because in the proper order a treaty is
first signed, then ratified before it is incorporated into the domestic legal regime and so if it is not ratified the issue
of its domestication does not even arise. When a state is a signatory to a treaty it is the initial act of commitment by
that state to be bound by its provisions. But what is not clear is the level of legal obligation the act of signature has
foisted on the signatory state. From a purely domestic perspective the local courts may exhibit great difficulty in
enforcing a treaty that is yet to be incorporated into its legal system, though signed. But on the international plane
liability may arise if it is proved that the signatory state deliberately is hiding under the guise of her domestic
system’s defect to impugn on an international obligation. But even at the domestic plane M. Kirby has argued that:
The age of reconciliation of international and national law has dawned… It is a
development as natural to the age as jumbo jets, international informatics, pandemics,
global warming and the international economy. In this little planet, we are all ultimately
bound together. Diminution in the human rights of others endangers peace and security
elsewhere and offends the sensibilities of people everywhere, who are increasingly well

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informed on such matters… [This] clearly involves the evolution of a new r elationship
between international and national law. This new relationship is coming, as (seen by)the
many cases which require the application of international law,… by the use of
international human rights jurisprudence filling the gaps of the (national) law and… it is
coming as an interpretative principle to assist in the ascertainment of the meaning of
national constitutions where they provide guarantees of fundamental rights and
freedoms.32
The Privy Council in Higgs and Anor v Minister of National Security and Ors33, clearly stated the position when it
held that:
In the Law of England and the Bahamas, the right to enter into treaties was one of the
surviving prerogative powers of the Crown. Treaties formed no part of domestic law
unless enacted by the legislature. Domestic Courts had no jurisdiction to construe or
apply a treaty, nor could unincorporated treaties change the law of the land. They had no
effect upon citizens rights and duties in common or statute law. They might have an
indirect effect upon the construction of statutes or might give rise to a legitimate
expectation by citizens that the government, in its acts affecting them, would observe the
terms of the treaty.
In the Nuclear Test Cases,34 the reasons for the indirect effect of an otherwise non-binding international instruments
on a state was stated by the court. It hinged it on the principles of good faith, resulting from trust and confidence.
The court reasoned that what binds in international relations is the hope that a state should be trusted with an
obligation it has undertaken at the international sphere. And that in interpreting the laws, the domestic courts should
seek to realize that hope upon which international corporation is built.
3.3. Legal Status of Signed, Ratified but not Domesticated Treaties
Nigeria has modestly ratified about 35 international human rights instruments.35 From an international context, the
State Party is unequivocally responsible and should be accountable for breaches resulting therefrom. This is a clear
case when a State cannot escape liability by reliance on the defect of its domestic machinery.36 So the point is that
when a State has not only signed a treaty but further ratifies same, at International Law, that State is bound by the
provisions of that treaty.37 This may not entirely represent the position at the domestic level since it is basically the
32 M. Kirby ‘Domestic Implementation of International Hu man Rights Norms’. 5 Australian Journal of Human Rights (1999) 109, 124-125.
33 The Times of London of December 23, 1999.
34 Australia v. France and New Zealand v. France, (Merits) ICJ Rep. 1974 253.
35 See, Human Rights Law Journal (HRLJ), Vol. 28 No. 1-4 (2007), pp. 139 – 160.
36 This principles has been firmly stated by both the PCIJ (in Polish Nationals in Danzig, at 24, and in Free Zones, at 167) and other courts (for
example, in Georges Pinson, at 393-4, and in Blaskit 1996, at 57), and is now laid down, with regard to treaties, in the 1969 Vienna
Convention on the Law of Treaties, Article 27 of which provides that “A party to a treaty may not invoke the provisions of its internal law as
justification for its failure to perform a treaty”.
37 In the case of Exchange of Greek and Turkish Populations, PCIJ, 21 February 21 1925 Advisory Opinion, Series B. No. 10, on line:
www.ig.cij.org/cijwww/cdecisions/ccpij/serie-B/B-10/0-Exchange-des-population-grecque Turques Avis-consultatif.pdf, the court held that
there exists a general duty for States to bring national law into conformity with obligations under international law. Specifically, in his decision
of 3 April 1996 in Blaskic (1996), the President of the ICTY held that Article 29 of the ICTY Statutes, on the obligation of States to co-operate

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act of incorporation that ‘downloads’ the instrument and makes same a ‘local’ instrument which enables the
domestic courts to implement same as part of their law. This position was clearly stated in the case of J.H. Rayner
(Mincing Lane) Ltd. V. Dept. of Trade and Industry, where LORD OLIVER held that:
It is axiomatic that municipal courts have not and cannot have the competence to
adjudicate upon or to enforce the rights arising out of transactions entered into by
independent sovereign states between themselves on the plane of international law…
Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not
part of English Law unless and until it has been incorporated into the law by legislation.
So far as individuals are concerned, it is res inter alios acta from which they cannot
derive rights and by which they cannot be deprived of rights or subjected to obligations;
and it is outside the purview of the court not only because it is made in the conduct of
foreign relations, which are a prerogative of the Crown, but also because, as a source of
rights and obligations, it is irrelevant.38
Having stated this position, it must be noted that the borders of this reasoning has been somewhat widened when
appreciated in the context of the current regulation of the international community:
1) A number of treaties, in addition to laying down a set of obligations, also explicitly impose contracting
States the duty to enact legislation for implementing the various provisions (or at least some provisions) of
the treaties. Some of them include the 1949 Geneva Conventions on the victims of war,39 as well as a
number of treaties on human rights,40 or other international instruments such as the Statute of the ICTY, the
ICTR41 and the ICC.
2) Some general rules that have acquired the rank and status of peremptory norms or jus cogens42 require that
States adopt the necessary implementing legislation.
In the case of Furundzija,43 The ICTY held that one of consequences of the peremptory nature of international rules
prohibiting and criminalizing torture is that States are bound to enact legislation prohibiting that heinous practice at
the national level. In the reasoning of the tribunal, the following may be discerned:
a) That a high level of respect is attached to the protection of individuals from torture, that respect does not
admit of any derogation, not even during emergency;
with the Tribunals had such a nature and effect and consequently Croatia by not enacting implementing legislation was in breach of
international law.
38 (J.H. Rayner (Mincing Lane) Ltd. V. Department of Trade and Industry) (1990)2 AC 418, House of Lords.
39 See Articles 49(1), 129(1) of the 1949 Geneva Convention.
40 See Article 5 of the 1948 Convention on Genocide, Article 2(1) (d) of the 1965 Convention on Racial Discrimination, Article 2(2) of the
1966 Covenant on Civil and Political Rights, Articles 4 and 5 of the 1984 Convention on Torture.
41 In his decision of April 3 1996 in Blaskic (1996), the President of the ICTY held that Article 29 of the ICTY Statute, on the obligation
of States to co-operate with the Tribunal, had such a nature and effect, and consequently Croatia, by not enacting implementing
legislation, was in breach of international law.
42 This shall be considered further subsequently.
43 (Appeal), ICTY Appeals Chamber, Judgment of 21 July 2000 (Case No. IT-95-17/1-T).

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b) That intervening when the act of torture has been completed defeats the purpose of the law;
c) That to forestall the violation of this, it is mandatory upon states not only to adopt national measures
necessary for the implementation of the prohibition but also it has become an obligation upon the states to
prohibit this practice.
d) That reliance upon domestic law cannot defeat this obligation as violators shall be held directly responsible.
In the memorial the British Government submitted to the Arbitrator in the Finnish Shipowners Case, it was clearly
stated that respecting the manner in which a state’s municipal law is framed, that a state has unhindered liberty of
action in international law, since its municipal law is a domestic matter which no other state can interfere with. But
this position was sustained with a proviso that the municipal law will be such that will accommodate and articulate
the international obligations of that state.44 This simply means that a state has unlimited liberty to promulgate its
domestic laws but such laws shall be subject to the international obligations undertaken by that state. The exercise of
the freedom to frame laws by a state shall be in the context of her international obligations since a state’s
sovereignty is restricted to the extent of her international obligation which she has willingly undertaken.
3.4. Legal Status of Signed, Ratified and Domesticated Treaties
Generally, it is taken that such a treaty has become part of the domestic law of the ratifying State. But this apparent
common position in practice has given rise to legal problems. Some of the posers include: Is there any possibility of
conflict between the domesticated law and the ordinary laws of the land?; If such a problem arises, what is the legal
position; Would an amendment of such domesticated law at the international plane require further domestication?;
Would such incorporated law be interpreted in accordance with international rules by the domestic courts or would
the interpretation be in line with the general legal frame of the domestic law?; How would the incorporated treaty
and the State’s Constitution relate?; Having become ‘domestic’ by the process of incorporation, would such
domestication make it amenable to domestic amendment process?; What would be the status of those provisions of
the incorporated treaty that local circumstances may not permit its enforcement?
44 See A.P. Fachizi, ‘The Local remedies rule in the light of the Finnish Ships Arbitration. 17 BYIL (1936), at 23 – 4.

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4. The Issue of Domesticating the African Charter Holus Bolus
It can arguably be said that developed communities respect and enforce human rights notwithstanding the
classification/categorization that its emergence has attracted. For these communities, human rights are observed
whether civil and political; economic; social and cultural; solidarity/group; or the democratic rights which fall within
the fourth generation of rights. This is ideally understandable. Human rights are interrelated, the breach of one
entails the breach of all.
Developing nations show determined efforts to enforce human rights to the limits of their resources. These nations
progressive advance respect for human rights. They set bench marks for themselves through workable and
transparent policies. All human rights are realizable if proper commitment is made in that direction. This entails real
dedication of policies and resources.
The ideal practice is for states to provide the legal platform necessary to realize legal obligations undertaken at the
international level. In the case of human rights, states are the primary custodians of the human rights of their
citizens. As a general rule international law does not directly apply to domestic legal instruments of states. The level
of enforcement of international rules on the domestic legal plane of states is largely dependent on the viability of the
receptacle available domestically. This is largely due to the fact that domestic courts are bound to respect and apply
domestic law. This is the case even where the state has domesticated the international law in issue.
Nigeria domesticated the African Charter on Human and Peoples’ Rights holus bolus, i.e., completely and wholly
without respect to her internal legal structure that is not yet suited to enforce all the rights enshrined in the said
charter. The regime of the civil and political (CP) rights in Nigeria is enforceable through a special provision in
section 46 of the 1999 Constitution which is a direct reflection of section 42 of 1979 Constitution. It provides that
“any person who alleges that any of the provisions of the chapter has been, is being or likely to be contravened in
any state, in relation to him may apply to a High Court in that state for redress”. In realizing this provision, the then
Chief Justice of Nigeria, Justice Fatayi Williams, on the 5th of December, 1979, in a supplement to the Official
Gazette No. 64, volume 66, made the Fundamental Rights (Enforcement Procedure) Rules. Also, on 11th November,
2009, the Former Chief Justice of Nigeria Idris Legbo Kutigi, replicated the same act in a supplement of Official
Gazette No. 74 Volume 46. As the name suggests the rules apply to what was considered as fundamental rights as

15
against the general notion of Human Rights. The rules restrictively apply to civil and political rights as captured in
Chapter IV, section 33-46, of the 1999 Constitution.
The Economic, Social and Cultural (ESC) rights and some of the solidarity rights are captured in Chapter II, sections
13-24 of the 1999 Constitution. The Constitution clustered them as fundamental objectives and directive principles
of state policy. This nomenclature took away the ‘rights’ content from these human rights and made them non-
justifiable, unlike the Chapter IV rights that can be enforced through a special procedure. The ordinary legal
impression created by this classification with respect to the charter rights is simply that the civil and political rights
automatically assume the legal status of Chapter IV rights in the 1999 Constitution. Every other right outside the
civil and political rights automatically assumes the legal status of Chapter II, rights, meaning that legally they are
non-justiciable.
5. Conclusion
This discriminatory disposition of the 1999 Constitution with respect to the rights enshrined in the charter which has
not only been ratified but additionally domesticated defeats the whole essence of the regime of rights procured by
the African Charter.
The protection and respect for human rights is too precious to be relegated to the dust bin of ‘fundamental objectives
and directive principles of state policy’. Human rights are strictly interwoven, an attempt to protect only the regime
of civil and political rights will even make its realization difficult. The best approach is the holistic one. For instance
securing the CP right to life is meaningless in the face of the violation to the rights to food, shelter, medical care, etc.
Nigeria scored cheap political points by merely ratifying and domesticating the African charter without creating a
legal environment for guaranteeing the protection of the ESC and solidarity rights. The African Charter made bold
statements with respect to the legal status of human rights internationally. A state that has domesticated it has sent
strong signals that she is willing to respect the rights enshrined in the instrument. She receives international
accolade, for such gesture. Such state should reciprocally show strong willingness to discharge its international
obligations by ensuring respect for these rights.