When the Nigerian National Assembly enacted the African Charter on Human and Peoples’ Rights Act Cap 10 1983 (the African Charter Act) later consolidated into the Laws of the Federation in 1990, it performed an act of remarkable constitutional economy. It appended the entire text of the African Charter on Human and Peoples’ Rights as a schedule and declared, in a single operative clause, that the provisions therein “shall have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.”
That was effectively the extent of the legislative exercise. An entire human rights treaty, drafted primarily for sovereign States within the framework of the Organization of African Unity, was incorporated into Nigerian law without any substantial modification or accompanying institutional framework to guide its operation within Nigeria’s constitutional order.
This article describes that problem as “adoption without adaptation.” Adoption, in this context, refers to the legislative act of incorporating a treaty into domestic law without meaningful structural integration. Domestication, however, requires considerably more. It demands legislative clarification of how treaty obligations operate within the domestic legal order, the allocation of obligations among State institutions and private actors, the procedures through which rights may be enforced, the remedies available for violations, and the relationship between treaty obligations and constitutional supremacy.
Nigeria completed the first task but largely avoided the second. The consequences of that omission have appeared repeatedly in the interpretation of the application of the African Charter Act domestically for over three decades, from the constitutional tensions examined in Ogugu v. the State and General Sani Abacha & Ors v. Chief Gani Fawehinmi to the more recent issues raised in the Bille and Ogale Group Litigation before the High Court of Justice of England and Wales whilst interpreting the Application of the African Charter Act in Nigeria.
Nigeria’s constitutional relationship with international treaties is governed by the dualist principle, reflected in section 12(1) of both the 1979 and 1999 Constitutions, which provides that “no treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.” Ratification alone, therefore, does not incorporate international obligations into Nigerian law.
The African Charter was ratified and domesticated in 1983 pursuant to section 12. In procedural terms, the enactment was constitutionally valid. The difficulty lies not in the fact of domestication, but in the limited nature of the legislative intervention. The National Assembly enacted the African Charter Act almost verbatim without clarifying how it would function within Nigeria’s constitutional framework.
Even though the Supreme Court had clearly stated that, the African Charter Act is applicable domestically in Ogugu v. the State and General Sani Abacha & Ors v. Chief Gani Fawehinmi, its application still leaves a lot of gaps because of non-adaptation of the African Charter Act to Nigerian Context. In General Sani Abacha & Ors v. Chief Gani Fawehinmi, delivering the lead judgment, Ogundare J.S.C. held that the African Charter Act “possesses a greater vigour and strength than any other domestic statute” because of its international character and the presumption that the legislature does not intend to violate Nigeria’s international obligations. At the same time, however, the Court maintained that the Constitution remains supreme and that the African Charter Act cannot override constitutional provisions or be insulated from legislative repeal.
The Supreme Court’s decision in Abacha v. Fawehinmi remains the leading authority on the legal status of the African Charter in Nigeria. Several aspects of the judgment reveal the difficulties created by mere adoption without adaptation.
First, the Court confirmed that the African Charter Act is not an ordinary statute. Because of its international character, its provisions prevail over inconsistent municipal legislation.
Second, the Court made clear that the Charter does not supersede the Constitution. As Ogundare J.S.C. stated, “the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act does not take precedence over the Constitution.” Accordingly, where a direct conflict exists between the Charter and the Constitution, the Constitution prevails.
Third, the Court recognized that Charter rights are justiciable in Nigerian courts. Individuals may therefore seek remedies for violations of Charter rights domestically. Yet, as Belgore J.S.C. observed, the legislation provided no detailed enforcement mechanism. While the Charter contemplates the African Commission on Human and Peoples’ Rights, the Commission is not a domestic court and lacks binding enforcement powers.
Finally, the Court confirmed that the African Charter Act remains subject to repeal or amendment by the National Assembly. Its international character does not place it beyond legislative control.
The difficulties become more pronounced when the text of the Charter itself is examined. The Charter was negotiated between sovereign States, and its structure reflects that interstate orientation. Article 1 provides that State parties “shall recognise the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.”
The obligations created by the Charter are therefore framed primarily as State obligations. The African Commission similarly functions as a supervisory body addressing alleged violations by States. The Charter itself does not expressly create mechanisms for direct enforcement against private individuals or corporations.
By reproducing the Charter almost verbatim, Nigeria imported this interstate structure directly into domestic law. Consequently, the African Charter Act speaks largely in the language of obligations owed by States rather than rights enforceable against all legal persons within a domestic system.
The unresolved question of horizontal effect remains one of the most significant consequences of Nigeria’s failure to adapt the Charter during domestication. In the Bille and Ogale Group Litigation, the claimants seek to enforce Charter rights against private corporate defendants, while the defendants argue that the Charter binds only States and State actors.
Called upon by the Uk High Court to give the Nigerian position thereof, Godwin Omoaka SAN’s stated that both Article 1 of the Charter and section 1 of African Charter Act limit obligations to State institutions and persons exercising governmental powers. He argued that the operative provisions of the Charter are expressly directed at State parties. In this respect, the Charter differs from Chapter IV of the Constitution, where some constitutional rights have been interpreted as capable of horizontal application against private actors. Dr. Olisa Agbakoba SAN, by contrast, argued that Nigerian jurisprudence on constitutional rights supports a contextual approach under which certain Charter rights may apply horizontally to private actors. The issue remains unresolved at the appellate level. Yet the fact that this question is now being debated through expert evidence before a foreign court underscores the consequences of Nigeria’s incomplete domestication framework.
Another difficulty arises from Article 24 of the Charter, which guarantees the right to “a general satisfactory environment favourable to their development.” Although potentially transformative, especially for oil-producing communities in the Niger Delta, Article 24 exists uneasily alongside section 20 of the 1999 Constitution, which places environmental protection within Chapter II of the Constitution. By virtue of section 6(6)(c) of the 1999 constitution, those provisions are generally non-justiciable.
This tension was highlighted in Opara & Ors v. SPDCN Ltd & Ors, where the Court of Appeal held that environmental pollution claims could not simply be reframed as fundamental rights actions under the Constitution and the African Charter. Had the legislature addressed this issue during domestication, much uncertainty might have been avoided. It could, for instance, have created a distinct statutory cause of action for environmental harm under Article 24 or clarified the relationship between Charter rights and Chapter II of the Constitution. Meaningful domestication of the African Charter therefore requires more than verbatim incorporation. A reformed Human and Peoples’ Rights Act should address several structural deficiencies in the current framework.
First, the legislation should clearly identify who bears obligations under the Charter. The question of whether Charter rights apply only against the State or may also apply against private entities should be resolved legislatively rather than left entirely to judicial interpretation. Second, the legislation should establish a coherent enforcement framework, including limitation periods and procedural rules specifically tailored to Charter claims. Third, environmental rights under Article 24 should be expressly defined and supported by a clear remedial structure capable of providing effective relief. Finally, the legislation should clarify the status of decisions of the African Commission and African Court within Nigerian law. At present, considerable uncertainty remains regarding their persuasive or binding effect before Nigerian courts.
Conclusion
The African Charter on Human and Peoples’ Rights remains one of the most significant human rights instruments on the African continent. Nigeria’s decision to domesticate it was both constitutionally important and politically significant. However, the method of domestication largely verbatim and without sufficient institutional adaptation has left the Charter in an uncertain constitutional position. Nigeria now requires a genuine Human and Peoples’ Rights Act capable of integrating the Charter fully into the domestic legal order. Such legislation should clarify the Charter’s constitutional status, define the scope of obligations, establish enforcement mechanisms, address environmental rights coherently, and resolve the question of horizontal application. Only then can the promise of the African Charter be meaningfully realized within Nigeria’s constitutional framework.