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University Of The Gambia

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Gambia Law Review | Est. 2017

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The Status in Nigeria of Treaties Predating the making of the 1979 Constitution: JFS v. Brawal Line Ltd

By Amos O. Enabulele, LLM, PhD (Lond.) BL, Associate Professor, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Nigeria, and Faith Osadolor, LLM, PhD (Benin) BL, Associate Professor, Department of Public Law, Faculty of Law, University of Benin, Nigeria.  


It is an essential ingredient of sovereignty that every State has an absolute jurisdiction to determine the laws that apply within its territory and to determine, by its laws, the organ of the State that has the competence to make laws and the procedures to be followed. The competent organ that makes municipal law (the legislature) is usually different from the organ that makes international law (the executive). As a result, and following the dictates of separation of powers, while the executive is competent to enter into treaties, its competence is eroded by the competence of the legislature when a treaty is intended to be applied to municipal subjects; such a treaty intrudes into the competence of the legislature. When this occurs, the municipal applicability of the treaty would turn on the requirements specified by municipal law.  This is the function of section 12(1) of the 1999 Constitution. This section bars the executive from transforming its treaty-making power into legislative powers by requiring legislative approval for the application of a treaty in Nigeria. Expectedly, the section has been variously interpreted and applied by Nigerian courts. This paper examines the views expressed by the Supreme Court in JFS v. Brawal Line Ltd and argues that the Supreme Court failed to give proper expression to the dualist nature of that section 


More than ever before, the multiplicity of rules of international law intended to have municipal law application has increased the volume of rules of international law sought to be applied to municipal subjects by municipal courts. The fact, however, that a treaty is intended by the contracting parties to take effect municipally neither erodes the right of municipal actors to determine the means by which the treaty intention can best be fulfilled municipally, nor does it relieve municipal courts of the duty of determining the exact source of their authority to apply the treaty. This naturally follows the foundation rule that national courts are set up to apply the laws of their realm of authority and that it is only the laws of the realm that are applicable on their own force before the courts.

The authority of municipal courts to apply rules of international law had in the past been explained through the doctrines postulated by two major schools of thought – monism and dualism. A discussion of these doctrines needs not delay us, but suffices to state that they hold opposite views on the authority of international law within the municipal order. The major tenet of monism is that international law and domestic law constitute a single legal system[1]and that once made, international law is directly applicable within the municipal realm and generally takes precedence over municipal law.[2]On the other hand, dualism holds international law to be a distinct legal system from municipal law,[3]so that the applicability and status of international law within the municipal order is defined by municipal law.[4]That is, municipal law determines such matters as: ‘whether international law is subject to constitutional limitations and whether it is equal, superior, or inferior in authority to strictly domestic law when the two conflict’.[5]

Beyond the earlier doctrinal explanations presented by monism and dualism, writers are now agreeing that the focal point in determining the authority of municipal courts to apply international law is the constitution.[6]Thus, it is municipal law that prescribes whether international law is directly applicable or requires legislative implementation. The municipal law of focus would depend on the nature of constitutional order prevalent in any particular State. In Nigeria and in all other states operating a written constitution, the answer to the question of the authority of international law municipally is usually, but not always, expressly answered in the constitution. In a state like the United Kingdom that runs on an unwritten constitution, the answer would lie in any relevant legislative instrument, parliamentary conventions and decisions of courts.[7]

In Nigeria, the question relating to the authority of international law before Nigerian courts is a constitutional question, which has since 1979 been expressly answered in section 12(1) of the Constitution of the Federal Republic of Nigeria (CFRN) of that year and in the extant 1999 Constitution.[8]

It is fitting to quickly mention at this stage that a recent amendment to the CFRN, 1999 – section 254(c) (2)[9]– has diluted the mandatory provisions of article 12(1). This section provides:

Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.

This amendment, in the view of this author, alters, for the first time, the absolute dualist approach to the implementation of treaties in Nigeria by introducing a monistic content into the constitution. This alteration is however of marginal effect when considered in the light of its application only to labour matters and in relation only to matters pertaining to the jurisdiction of the National Industrial Court. Aside labour matters, therefore, section 12(1) remains the pathway for all other treaties.   

As the new provision does not fall within the scope of the decision being discussed, no more shall be said of it in this article. 

It is instructive to note that before the advent of the 1979 Constitution, the implementation of treaties in Nigeria was not as expressly stipulated in the preceding post-independence Nigerian Constitutions. But as the Constitutions were not completely silent on the point, international law was not on a rudderless pathway into Nigeria.

The 2010 decision of the Supreme Court of Nigeria in JFS v. Brawal Line Ltd,[10]calls for an overall comparative view of the approach of the various post-colonial constitutions to the implementation of treaties in Nigeria. This is in view of the suggestion in the reasoning of the Supreme Court that the domestication requirement of the common section 12(1) of the 1979 and 1999 CFRN was inapplicable to pre-1979 treaties.       

This article examines the past and present Nigerian constitutions and argues that the Supreme Court was, with respect, wrong to have assumed the status of treaties under the pre-1979 constitutions without examining the real approach specified in the constitutions. It argues that, while the conclusion reached by the court in the case is unassailable for other reasons, the view of the court on the status of pre-1979 treaties is unwarranted.

The article proceedsin seven parts. Part II discusses the facts of the Brawel case; part III discusses the history of the COGSA; part IV discusses the posture of allpost-independence Nigerian constitutions towards international law; part V examines the tenacity of the view of the Supreme Court; part VI looks into the issue of supremacy between implementing legislation and other legislations of the National Assembly; and part VII is conclusion.

The Case of JFS v. Brawal Line Ltd

This case involved the carriage of goods by sea under a bill of lading issued in Hamburg for the carriage of a cargo of industrial sodium chloride on board the respondents’ vessel, the MV Ndoni River. The Cargoes was taken from Hamburg, Germany for delivery at the Apapa Port, Lagos, Nigeria.The appellant as plaintiff before the Federal High Court, Lagos, commenced this action to claim damages for breach of a contract of affreightment and/or breach of duty as bailies in respect of the cargoes. The respondents requested the court to dismiss the action for being statute barred.

Without dwelling further on the facts of the case, the writer shall focus on the aspect relevant to the present discussion. This is the aspect dealing with the application in Nigeria of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (‘The Hague Rules’), and Protocol of Signature[11]in its form as an international Convention, rather than in its modified form as Nigerian law, through the Carriage of Goods by Sea Act (COGSA) of March 13, 1926,[12]by which the Convention was implemented in Nigeria by Great Britain during the colonial era.   

As stated above, the subject-matter of the dispute was a Lagos-bound cargo from Hamburg, Germany. Nevertheless, the trial court applied the COGSA and dismissed the claim of the plaintiff for being time-barred under the COGSA. On appeal by the plaintiff/appellant, the defendant/respondent filed a notice to the effect that the trial court ought to have applied the Hague Rules as the COGSA is inapplicable to inward cargoes. The Court of Appeal affirmed the dismissal of the case but agreed with the respondent that the applicable law was the Hague Rules.

In any case, the conclusion reached by the trial court was not altered, given that the case was also time-barred under The Hague Rules, which requires, in its article 6 that cases should be commenced within ‘one year after delivery of the goods or the date when the goods should have been delivered’.

On appeal to the Supreme Court, one of the questions submitted for consideration was the authority of domestic courts in Nigeria to apply treaties. Thus, citing section 12(1) of the 1979 CFRN, the appellant urged the Supreme Court to hold that the Court of Appeal should not have applied the Hague Rules to the case. The crust of the appellant’s argument was that since the suit was filed after the coming into force of the CFRN, 1979, section 12(1) would operate to exclude the part of The Hague Rules not incorporated into the COGSA. On the other hand, the respondent argued that The Hague Rules was applicable as a treaty entered into by the colonial power and extended to Nigeria by parliamentary enactments and thus continued to apply as existing law unaffected by section 12(1).

In a unanimous judgment read by Adekeye JSC, the Supreme Court adopted the argument of the respondents that The Hague Rules, being a pre-1960 treaty, was an existing law in Nigeria as at the time the CFRN, 1979 came into force and that section 12(1) can therefore not operate to affect its applicability in Nigeria. The reason for agreeing with the respondents was that:

…by October 1, 1960 …the government of the federation assumed all the obligations and responsibilities of the colonial regime of the government which arose from valid international instruments such as The Hague Rules, 1924. Nigeria became a party through exchange of letters between Hague, the United Kingdom and the government of Nigeria on October 1, 1960. The Hague Rules 1924 was extended to Nigeria as a legislation which formed part of our laws before independence, and was received as our laws after independence. It does not require any further ratification as stipulated in section 12(1) of the 1979 constitution before it can be applicable.[13]

Also, while declaring that domestication is mandatory only to post 1979 treaties ‘which would need to be enacted to become part of our municipal laws’, the Supreme Court declared, ‘surely this is not applicable to pre 1960 treaties and Conventions’.[14]Implied in this reasoning of the court, is that the dualist approach to international law and the attendant requirement of domestication was introduced by the 1979 Constitution.

How tenable is the view of the Supreme Court? The writer shall turn to this question after a brief discussion of The Nigerian CGSA.

History of the Carriage of Goods by Sea Act in Brief

The CGSA 1926 is one of the relics of our colonial heritage. It was originally enacted as an English Statute – the Carriage of Goods by Sea Act, 1924. This statute was enacted, in line with the common law dualist tradition, to implement the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (the Hague Rules) and Protocol of Signature.[15] 

Importantly, the 1924 English Statute, as is the Nigerian one, predates the ratification of the Hague Rules by Great Britain for itself in 1930 and later that year, for its colonies, protectorates, and mandated territories. Thus, the British had accompanied its ratification of the Convention in June 2, 1930, by the reservation (contained in article 13 of the Convention) that it was effective only for the United Kingdom and Northern Ireland. On December 2, 1930 further declarations were deposited to effect adherence on behalf of several colonies, protectorates, and mandated territories, with the exception of Australia, Canada, India, New Zealand, and the Union of South Africa.[16]

The implementation of the general principles of the Convention even before the Convention was ratified by Great Britain was facilitated by the recommendation of the Imperial Economic Conference in November, 1923, (and this was before the rules came into force) that “the Governments of the British Empire should adopt the rules agreed upon in the Brussels Diplomatic Conference on Maritime Law (1923)".[17]Following this recommendation, and in anticipation of international accord on the proposed text of the Brussels Convention of 1923, the English CGSA was enacted on August 1st, 1924.[18]From 1926 and beyond, Great Britain, by special Statutes, legislative Orders in Council and Ordinances, extended the 1924 Act to its colonies, protectorates, and mandated territories, including Nigeria.[19]

The consequence of the English CGSA 1924 and the Nigerian CGSA 1926 predating the ratification of the Convention is that the ‘official text of the Brussels Convention [the Hague Rules] has never been enacted as a statute, and, accordingly, it never had the force of law in England [and in Nigeria]’.[20]In 1971, however, following the 1968 amendment of the 1924 Hague Rules,[21]Britain re-enacted its Carriage of Goods by Sea Act 1971 to implement the Hague Rules with modifications.[22]To this new piece of legislation, was annexed The Hague Rules, as amended.[23]Since Nigeria did not take this step, the Applicable Rules remains at the level of the 1924 Convention and the 1926 Act. 

In consequence, on the date of independence, a modified version of the Hague Rules was already applicable as a Nigerian statute. Nevertheless, as this and other treaties had been entered into by Britain on behalf of Nigeria, it was necessary for Nigeria, as an independent State, to reaffirm its commitment to the treaties. Accordingly, Nigeria succeeded to the obligations and benefits of the treaties (including the Hague Rules) entered into by the United Kingdom for Nigeria by the exchange of letters between the British Government and the Nigerian Government upon the attainment of independence by Nigeria on October 1, 1960. Accordingly, the Nigerian Government agreed to the following provisions:

  • All obligations and responsibilities of the Government of the United Kingdom which arise from any valid international instrument are, from October 1,1960, assumed by the Government of the Federation of Nigeria in so far as such instruments may be held to have application to or in respect of the Federation of Nigeria.
  • The rights and benefits heretofore enjoyed by the Government of the United Kingdom in virtue of the application of any such international instrument to or in respect of the Federation of Nigeria are from October 1, 1960, enjoyed bythe Government of the Federation of Nigeria.[24]

The exchange of letters did not confer the rule with a different status to that which had been created for it by Britain nor did it require Nigeria to take any other consequential municipal steps.

 Just as the Nigerian version, the Hague Rules were set out as a schedule to the English 1924 Act, with some modifications.[25]By its tenor, the 1924 English COGSA was crafted to apply to outward cargoes – bills of lading issued in the United Kingdom. This is explicit in section 1 of the English Act, which, as is section 2 of the 1926 Nigerian COGSA, expressly limits the application of the rules to outward shipping.

Importantly, The Hague Rules that appeared as a schedule to these versions stopped at article IX, so that the applicable Hague Rules under the 1924 English COGSA and 1926 Nigerian version did not have article X, which provides that“[t]he provisions of this convention shall apply to all bills of lading issued in any of the contracting States”. Had this been retained in the COGSA, it would have created confusion and made it difficult to correctly ascertain the intent of the legislature, as there would have existed two conflicting applicability clauses dragging the courts in opposite directions.By excluding article X from the version of the Rules that appeared as a schedule to the COGSA, the legislature displayed an unequivocal intention to limit the application of the Rules to outward shipment –bills of lading issued locally.

The conflict between provisions, such as section 2 of the Nigerian Act, limiting the application of the Hague Rules to outward shipping, and article X of the Hague Rules have been variously noted. The limitation of the rules to outward shipping, according to Yianopulous “involves a serious conflict with Art. X of the Convention”.[26]Such limitation it has been further argued “may offer to carriers an opportunity to limit their liabilities contrary to the letter and spirit of the Brussels Convention [the Hague Rules], and to the prejudice of international uniformity”.[27]This is because carriers may deliberately choose the law of a state that limits application of the rule to outward cargoes, as the governing law of a contract of carriage of goods by sea, for inward cargoes, which are outside the ambit of the application of the COGSA.[28] 

There exists a clear understanding that the provisions of section 2 of the COGSA (as are such of other similar national provisions) effectively replaces the general applicability rule in article X of the Hague Rules with a narrower one by applying the Rules exclusively to bills of lading for shipments originating locally and not, as the Convention requires, also to bills issued in other contracting states.[29]

The apparent conflict, notwithstanding, the Protocol of Signature of The Hague Rules allows the High Contracting Parties to give effect to the Convention “either by giving it the force of law or by including in their national legislation in a form appropriate to that legislation the rules adopted under this Convention”. Thus:

…the uniform rules adopted in the Brussels Convention have not been given effect in a uniform way in all of the contracting states. Some countries introduced domestic legislation modelled on the Convention; others have given effect to the entire Convention as part of the law of the land; and still others have enacted domestic legislation modelled on the Convention, and, in addition, gave to the Convention itself the force of law….Where the Convention itself is enacted into law, the area of application of the uniform rules depends on the interpretation given to Article X; and as the interpretation of this article differs, the area of application of the uniform rules may differ with the forum. Where the uniform rules are enacted into domestic law, care is frequently taken to define their area of application according to a variety of contacts, such as "inward" or "outward" movement of goods. Where the statute is silent as to its area of application, the courts apply general conflicts rules or resort to a variety of contacts fabricated for the occasion….[30]

In any event, it should always be borne in mind that The Hague Rules is a rule that was targeted at the standardisation of the choice of law rules in the carriage of goods by sea. It does not completely obliterate the right of the parties to exercise the freedom of choice as to the law that would govern their contract. Accordingly, though the Rules are inapplicable to inward shipping under Nigerian law, it is applicable in Nigeria on the choice of law of the parties, as was seen in Leventis Technical v. Petrojessica Enterprises Ltd,[31]where the Supreme Court of Nigeria affirmed that, though the Hague Rules was inapplicable to the inward shipping arising from a bill of lading issued in Spain, it was nonetheless application on the contract of the parties as contained in the bill of lading.

The Posture of Nigerian Constitutions towards International Law

 As already mentioned above, Nigeria has had four constitutions since independence. There had been the Constitution of the Federation of Nigeria, 1960; the Constitutions of the Federal Republic of Nigeria, 1963, 1979 and now that of 1999. 

Under section 69 of the 1960 Constitution and section 74 of the 1963 Constitution, there was a common provision on the implementation of treaties in Nigeria. It was provided in the sections that:

Parliament may make laws for Nigeria or any part thereof with respect to matters not included in the Legislative Lists for the purpose of implementing any treaty, convention or agreement between the Federation and any other country or any arrangement with or decision of an international organisation of which the Federation is a member: Provided that any provision of law enacted in pursuance of this section shall not come into operation in a Region unless the Governor of that Region has consented to its having effect.

 The common article 12 of the 1979 and 1999 Constitutions provide 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.
  • The National Assembly may make laws for the federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.
  • A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for consent, and shall not be enacted unless it is ratified by a majority of all the House of Assembly in the federation.

Much jurisprudence has been built around the common section 12(1) of the 1979 and 1999 CFRN from judicial pronouncements and academic opinions, which have given substance and meaning to the section. There is thus judicial understanding[32]and academic concurrence[33]that the section prohibits the application by Nigerian courts of treaties that have not been transformed into Nigerian law by the National Assembly. The National Assembly (just as was the pre-1979 model) may do this exclusively or concurrently with the legislatures of the federating units, if the subject-matter of the treaty falls within the concurrent legislative list.[34]

Unlike section 12(1), which has been severally interpreted by Nigerian courts and robustly discussed in academic literature, there appears to be a dearth of both academic literature and judicial pronouncements on the pre-1979 provisions. Nevertheless, this should pose no significant difficulty, as reliance could be placed on the common law of England to provide the needed background to the tenor of the provisions.[35]

To begin with, it must be stated that the dualist setting is the common law default setting to the authority of international law in the municipal sphere. On the other hand, the civil law system maintains monism as its default setting. Accordingly, in the absence of a law specifying the approach to the authority of international law within the municipality of a common law State and a civil law State, a presumption of dualism and monism, respectively, should be the right starting point.

There is a long line of English cases specifying and confirming the common law position of the mandatory requirement of legislative implementation to theapplicability of treaties within the national order. In Cook v. Springg,[36]it was held that municipal courts cannot adjudicate upon or enforce rights arising out of transactions entered into by independent sovereign States between themselves on the plane of international law. The application of this rule throughout the British Empire was confirmed by the Judicial Committee of the Privy Council in the 1937 when Lord Atkin declared: “[w]ithin the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action”.[37]The currency of this rule has been variously confirmed in recent cases.[38]

The relevance of the English common law to understanding the provisions of the pre-1979 constitutions lies in the proximate link those constitutions had with the English institutions of colonialism. This assertion naturally yields to an understanding of the dualist environment under which the pre-1979 Constitutions were made and leaves no doubt as to their dualist nature.

This view is well supported by the text of sections 69 and 74 of the 1960 and 1963 Constitution, respectively. It is clear that the text of the provisions requires the legislative implementation of treaties in no less a manner required by the post-1963 provisions. Hence, it was the faculty of parliament to make laws for the purpose of implementing a treaty and making it applicable to Nigerian courts as law. For the avoidance of doubt, it was clearly stated in the explanatory notes of sections 69 and 74, that they applied to the “implementation of Treaties…”.[39]As also argued by Okeke, the consequence of the text of article 69 of the 1960 Constitution is that “no treaty enacted between Nigeria and a foreign country could be implemented in a region of Nigeria absent consent of the Parliament on the one hand, and assent to the treaty by the Governor of the region”.[40]

In comparison with the extant post-1979 provisions, the main difference is in the structure of the provisions and the definitive language of section 12(1) of the post 1963 provisions in which it is expressly stated that no unincorporated treaty can have the force of law in Nigeria. In consequence, it is safe to conclude that the common law dualist approach, as expressed in cases decided by English courts; as expressly enacted into section 12(1) of the 1979 and 1999 CFRN; and as affirmed in Nigerian cases interpreting and applying the provisions, has formed the basis of the authority of international law in Nigeria since independence.    

It is nonetheless fitting to State that neither in the 1960-1963 constitutions nor in the 1979-1999 constitutions has it been necessary that a treaty be domesticated in any particular form for the dualist character of the Constitutions to be appeased. As the present writer argued elsewhere, section 12(1) only requires the National Assembly to domesticate applicable treaties, it does not specify the form such domestication should take. This is entirely left to the choice of the Assembly. The National Assembly enjoys complete freedom of choice of deciding whether it wants to fulfil a treaty obligation by enacting the substantive provisions of the treaty as Nigerian law or by domesticating the treaty and thereby giving it a form recognised by the Constitution.[41]

The National Assembly can achieve the constitutional stipulation by annexing the treaty in its entirety to an Act of the National Assembly. It can decide (without reproducing the exact provisions of the treaty and without necessarily making the treaty the subject of the Act) to make a more general Act that fulfils the same object and purpose as the treaty.[42]This approach also meets the provision of section 12(1), which requires nothing more than the passage of an Act of the National Assembly to implement a treaty.[43]

When plugged into the different constitutional eras identified above, we will be looking at three different sets of applicable treaties,[44]viz:

(a) Treaties entered into by the British Government and extended to Nigeria by the same government in exercise of her Colonial Power. An example of this is the Warsaw Convention made applicable to Nigeria by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953; the Carriage of Goods by Sea Act, 1926, by which part of The Hague Rules was implemented in Nigeria.

(b) Treaties which are applicable as Nigerian law. These are treaties which provisions are enacted into Nigerian statutes as Nigerian law without necessarily making reference to the mother treaty. Example isthe Childs Right 2003.

(c) Treaties applicable through Nigerian law. Those in this category are holistically made applicable to Nigeria through an enabling Act. Examples are the Treaty Establishing the African Union (Ratification and Enforcement) Act, 2003 and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.[45]

The essential thing to note here is that the effect of any of the above modus by which section 12(1) is satisfied is the same: implemented treaties become part of Nigerian law. The necessary corollary would therefore be that no mode of implementation confers a special character or superior status on implemented treaties; all implemented treaties in Nigeria, no matter what mode is employed, take effect as Nigerian law.[46]There may however arise some detriments to the holistic enforcement of a treaty under the modes in (a) and (b) above. This is because the provisions of the treaty may be selectively incorporated into the implementing Act of the National Assembly. This is in fact the reason for the gap in the implementing legislation – the COGSA – being discussed.  

It is however essential to restate the point earlier hinted that in the area of commerce where the freedom of contract allows the parties to make a choice of applicable law, the faculty of municipal courts to apply treaty rule is not always tied to the domestic application of treaties. Thus, a rule of international law may be applied by Nigerian courts at the instance of contractual parties who have incorporated the rules into their contractual undertaking as the law governing the contract. As rightly pointed out by Lord Oliver of the English House of Lords in the International Tin Council case,[47]individuals may enter into a domestic contract in which they have chosen to incorporate the terms of a treaty. In such a case, the court may be called upon to interpret the treaty for the purpose of ascertaining the rights and obligations of the parties under their contract. The private contract would thus constitute the authority of the court to apply the treaty rule to the contractual undertaking of the parties in deference to their right of freedom of contract. The difference between this and legislative implementation is that private individuals cannot give national courts general powers to apply such a treaty erga omnes; the court’s authority is for all purposes limited to the contractual obligation into which the treaty was incorporated.

What this means for this discussion is that the unincorporated portion of The Hague Rules is within the category of treaty provisions that are amenable to application in Nigeria on the choice of parties to a Bill of Lading.[48]

The Supreme Court could be Fallible

With respect, the reasoning of the Supreme Court in the case being discussed is quite difficult to follow. In the first place, The Hague Rules is a Convention that was made by the Netherlands and 27 other States long before Nigeria became independent. It was not a Convention between the United Kingdom and the Government of the Netherlands (of which The Hague is a part). The depository authority for the purpose of ratifying or acceding to the Convention was the Belgian Government. It is this Government that was empowered by article 11 of the Convention to receive “subsequent deposit and instruments of ratification”.

Articles 12, 13 and 14 specify the procedures to be followed by a State wishing to accede to the Convention. It nowhere mentioned that a State may become a party to the Convention by exchange of letters between two of the parties and a State subsequently seeking to accede to the Convention. By these articles, if Nigeria was to accede to the Convention in 1960, Nigeria would have had to:

  • Notif[y] its intention in writing to the Belgian Government, forwarding to it the document of accession, which shall be deposited in the archives of the Belgian Government.
  • The Belgian Government shall forward certified copies of the notification and of the act of accession, to all the State parties to the convention;
  • Upon fulfilling the requirements set out above, Nigeria would have become a party to the rules at the expiration of a six-month period

Based on the law and principles governing the consent of States to a treaty regime, having become a party to the Convention through the sovereign act of the United Kingdom, Nigeria needed no exchange of letters towards expressing its consent to be bound by the Convention when it became independent in 1960.

What Nigeria was entitled to do, and which she rightly did, by her October 1, 1960 exchange of letters with the United Kingdom, was an exercise within the meaning of state succession. This was done to allow Nigeria succeed to all the benefits and obligations of treaties entered into on her behalf by Britain during the colonial period.

Curiously, after taking the correct view of the effect of the exchange of letter, Adekeye JSC, went further to complicate the subject by his view that:

[t]he Hague Rules 1924 was extended to Nigeria as a legislation which formed part of our laws before independence, and was received as our laws after independence. It does not require any further ratification as stipulated in section 12(1) of the 1979 constitution before it can be applicable.[49]

Having found that The Hague Rules was extended to Nigeria before independence, there was no need for further exaggeration or speculation about the Rules being received as our laws after independence. The exchange of letters is confined to the international character of the Hague Rules; it had nothing to do with its domestic application in Nigeria. This is particularly so as The Hague Rules is applicable in Nigeria independent of its treaty character; it applies as Nigerian law with modifications, so that there is no obligation on Nigerian courts to administer the treaty outside the framework of the COGSA by which the Convention was implemented. 

Even if, as the court appears to suggest, it was the exchange of letters that made post-independent Nigeria a party to the Hague Rules, it does not answer to the authority of Nigerian courts to apply the Rules in its treaty form. After all, the very fact that Britain had to make The Hague Rules applicable in Nigeria by incorporating it into an Act of Parliament is telling enough that Britain understood that the dualist nature of the common law and indeed of the prevailing legal system in the then Nigeria prevented the Convention from having the force of law in the then colony of Nigeria without some form of legislative action. In any event, it is expressly provided in the COGSA that The Hague Rules, which is a schedule to the Act, was to apply in Nigeria subject to the provisions of the Act. In other words, The Hague Rules was to be applied within the framework of the COGSA, which is an existing law under section 315 of the CFRN, 1999. As a result, it will be offensive to the provisions of the Act for a Nigerian court to apply the rules in a reverse motion to that permitted by the Act, notwithstanding that the same result may ensue, as was in the Brawal case.

If applied in excess of its content within the COGSA, Nigerian courts would no longer be applying the Act as permitted by Nigeria law but would be directly applying the Rules qua conventional rules in contravention of the dualist posture of Nigerian constitution. Our argument would, perhaps, find some emphasis in the fact that this is not the first time matters relating to the extent of the applicability of The Hague Rules have been raised before Nigerian courts. The noticeable trend has been the obvious inability of the courts to agree on a consistent approach to the clear stipulation in the COGSA that The Hague Rules applied to outward shipments only and this has resulted in conflicting decisions.[50]

If, as it is, the COGSA stipulates in clear terms that the domesticated Hague Rules applies only to outward shipping, it is not the duty of the courts of the land to reverse that order and apply the Rules to inward shipping, in order to fill a vacuum that really did not exist. Nor is it the court’s province to administer a treaty as would an international court.[51]While affirming that the task of the Court is to give effect to the will of the Australian Parliaments as manifested in legislation, Callinan, J., of the High Court of Australia, was convinced that:    

Courts may not flout the will of Australia's democratic representatives simply because they believe that, all things considered, the legislation would "be better" if it were read to cohere with the mass of (often ambiguous) international obligations and instruments. Consistency with, and subscription to, our international obligations are matters for Parliament and the Executive, who are in a better position to answer to the international community than tenured judges. Where legislation is not genuinely ambiguous, there is no warrant for adopting an artificial presumption as the basis for, in effect, rewriting it.[52]

As stated above, The Hague Rules was already an existing law in Nigeria, having been made applicable in Nigeria by a colonial legislation deemed as an Act of the National Assembly by virtue of sections 274(1) and 315 of the 1979 and the 1999 Constitution, respectively.[53]The writer is of the view that it is not The Hague Rules, as applied to inward bound shipment that is an existing law in Nigeria, but The Hague Rules contained within the framework of the COGSA and which only applies to outward bound shipments that is deemed existing law of the National Assembly.     

This is not to deny that Nigerian courts have the important task of seeking to construe municipal laws to conform to Nigeria’s treaty obligations. But this can only be so when such a construction is possible. To use the words of Chief Justice Marshallin Murray v. Schooner Charming Betsy,[54]“an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”.

To reiterate the point already indicated above, the court was not wrong to have applied The Hague Rules on the basis of the contractual terms of the parties, so that the Supreme Court actually did not need to have engaged in seeking to justify the application of the Hague Rules in this case on any other ground than the basis of the agreement of the parties. As indubitably stated by the court:

The general rule of law is that parties to a contract have the autonomy to choose by the law which will govern their transaction. It is the law chosen by the parties which will guide the court in the determination of their rights….the court of law…must respect the sanctity of the agreement of the parties – the role of the court is to pronounce on the wishes of the parties and not to make a contract for them or re-write the one they have already made.[55]

The court could simply have applied the Rules as the law of the contract of the parties without the complicated and the circuitous reasoning that characterisedBrawal.


There is yet the more disturbing view that has continued to resonate at the Supreme Court: the view that an international convention is superior to Nigerian law before Nigerian courts. In Oshevire v. British Caledonian Airways Ltd,[56]the Court of Appeal, while considering the provisions of the Warsaw Convention on International Carriage by Air as enacted into Carriage by Air (Colonies, Protectorates and Trust Territories) Order, held that:

An international agreement embodied in a convention or treaty is autonomous, as the high contracting persons have submitted themselves to be bound by its provisions which are above domestic legislations. Thus any domestic legislation in conflict with the convention is void.

This view was repeated and adopted by the court in Brawal. In adopting this view, the reasoning of the court surpassed earlier cases in encroaching into the province of the legislature to make laws for the peace, order and good governance of Nigeria under section 4 of the Constitution; it surpassed all other cases in subjugating to the ebb and flow of international law, the principle of separation of powers and in relegating the sovereign will of the Nigerian State (to regulate its affairs by municipal law) to treaties that may not be similarly implemented by other contracting parties. According to the court:

an international agreement embodied in a convention such as Hague Rules is autonomous and above domestic legislation of the subscribing countries and the provisions cannot be suspended or interrupted even by the agreement of the parties.[57]

Aside posing an unwarranted challenge to the spirit and letter of section 12(1) of the 1999 CFRN, the extent to which the court’s view coheres with the provisions of the constitution remains to be demonstrated by the Supreme Court. On the contrary, the view of the court appears offensive to several provisions of the constitution, including sections 1(3), section 315(2) of the CFRN, 1999.

Section 1(1) proclaims the supremacy of the constitution. Implicated in this supremacy is the authority of the National Assembly to make laws as the highest law making organ of the land under section 4(1) of the Constitution. Added to this is the hierarchy of laws contained in section 4(5), under which no law, other than the CFRN, is higher than laws made by the National Assembly. Neither in the Constitution nor in any law validly made by the National Assembly is it stated that some laws made by the National Assembly could be of different hierarchical status, depending on whether they implement a treaty.[58]

The claim of superiority of implementing legislation becomes even more difficult to sustain when considered in the light of section 315 of the CFRN, 1999. This section recognises the concept of “existing law”, which is defined in section 315(4)(b) to mean:

any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date.

Section 315(1) makes room for modification, as may be necessary, to bring an existing law into conformity with the provisions of the Constitution. Section 315(3) empowers the court of law to “declare invalid” any existing law that is incompatible with “an Act of the National Assembly”. Furthermore, under section 315(4)(c) "modification’ includes addition, alteration, omission or repeal”.

The fact that section 315(4)(b) did not name the National Assembly as an “appropriate authority” for the purpose of “modifying” an “existing law” does not derogate from the general powers of the Assembly to make laws for Nigeria under section 4 of the CFRN. Indeed the Power of the National Assembly to expressly or impliedly modify an existing law is also implicit in the power of a court to invalidate an existing law for inconsistency with an Act of the National Assembly under section 315(c).

Placing section 315 within the context of this discussion, would require a reflection on the fact that the implementing legislations involved in Oshevire v. British Caledonian Airways Ltd andBrawal were made prior to the 1979 and 1999 Constitutions and thus amenable to modification even by an executive act under section 315.  Under what authority would such a law acquire a status that is higher and above any other Act of the National Assembly? Can it be said that the power of the National Assembly to modify or repeal an existing law is incapable of being exercised over an Act that implemented a treaty?      

As was held by the Supreme Court in Adesanoye v. Adewole,[59]when a law or a statute or a subsidiary instrument is revoked, it ceases to be in existence but what is amended continues in existence in its amended form.   Also, the dissenting judgment of Mohammed JSC on the Cross-Appeal in Abacha v. Fawehinmi[60]falls within the tangent of the power of the National Assembly to amend or repeal any piece of legislation as it sees fit. Thus, citing Macarthys Ltd. v. Smith,[61]The learned Justice declared:

… But a State is always at liberty if it deems desirable due to domestic circumstances or international considerations to legislate a law inconsistent with its treaty obligations. I agree that such an exercise will be without prejudice to any remedies available against the state in international law at the instance of the other states who ratified the treaty. Once the slate decides to exercise such right through a legislation the courts in that country are bound to follow the promulgated law.

There is therefore no legal or logical justification for the view that a rule of international law operating in Nigeria cannot be displaced by a subsequent expression of the sovereign will by the National Assembly. Nigeria operates a written constitution that is the supreme law of the realm: neither the Supreme Court nor the executive is permitted to refuse to apply a law validly made by the National Assembly because the law contradicts an international obligation.[62]The only basis on which a law made by the National Assembly can be declared inapplicable is when it is inconsistent with the provisions of the Constitution under section 1(3).

An Act of the National Assembly could validly contradict a treaty without any municipal law implications. As admitted by the International Court of Justice ICJ in Elettronica Sicula S.p.A (ELSI):

Compliance with municipal law and compliance with the provisions of a treaty are different questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent of violation of a treaty provision.[63]

And as Mohammed JSC rightly declared above,[64]the lawfulness of acts violating a state’s treaty obligation under municipal law does not absolve the state of its liability under international law.[65]But the engagement of the international responsibility of a State in this regard is not for the courts of the realm to either answer for or remedy; the responsibility lies wholly within the province of the political organs of government. In any event, the international obligation of the State is not engaged by the failure of a municipal court to enforce an unimplemented treaty, but by the failure of the political organs of government to ensure that municipal law does not make it impossible for municipal courts to enforce treaty obligations. The failure of a court to apply an unimplemented treaty is not the breach but the consequence of the breach already committed by the political organs of government for leaving undone a constitutional requirement for the application of the treaty by the courts.   

It is therefore unsatisfying to note that the Supreme Court is prepared to legislate into force in Nigeria, by judicial fiat, all pre-1960 treaties entered into by His or her Majesty, the King or Queen of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas. On the same premise, all pre-1979 treaties are potential candidates for direct application in Nigeria. Interestingly, treaties falling within the colonial era could be exhumed from legal extinction and apparelled in superiority and immutability so that no Nigerian legislation can control or alter its application within Nigeria.[66] 


This article discussed the Supreme Court decision in Brawalas it relates to the relationship of Nigerian law with international law. The article sought to demonstrate that Supreme Court’s reasoning is quite radical but hardly well-considered in that effectively makes the Nigerian legal a perpetual slave to international law. It particularly took objection to the reasoning that pre-1979 treaties do not require legislative implementation; it also questioned the persistent view of the court that legislations that implement treaties are superior to all other legislations in Nigeria.  It argued that it was wrong for the Supreme Court to assume that dualism was introduced into Nigeria in section 12(1) of the 1979 Constitution.

In all the cases in which the Supreme Court has taken the view that an applicable international law is superior to a law made by the National Assembly, the court, in effect, pronounces its preparedness to declare a legislation validly made by the National Assembly, and which conflicts with a pre-existing implementing treating, null and void. If the court ever gets to apply this rule, it would be acting in clear violation of the CFRN. It is indeed inimical to our legal system to accord supremacy to a law implementing a convention over subsequent Acts of the National Assembly when all the other parties to the Convention may well act in the opposite manner.

The writer must now reiterate the point he made elsewhere, that:  

While it is desirable for all countries to act in good faith towards their international obligations, the dictates of national interest is always paramount. And given the nature of international relations, where weaker countries could be intimidated into entering international agreements by the strong, the best safeguard of national interest in an increasingly interdependent world, is a strong and purposive municipal regulation.Municipal regulation necessarily preserves the power of the legislature to make laws in response to changed circumstances in future, for the good of the country. To elevate pieces of legislation, implementing treaties, high and over the reach of future intendment of the National Assembly to alter or modify municipal laws, is an unnecessary clog on the ability of the Assembly to make laws.[67]

It is important to reiterate that this paper does not query the conclusion reached by the court but the reasoning by which the court came to its conclusion. Indeed there cannot be any questioning of the application of the Hague Rules in its modified form in Nigeria, nor can it be correctly argued that the unimplemented Hague Rules cannot be applied in Nigeria on the basis of the contractual terms governing the transactions of the parties, as contained in the Bill of Lading. However, the paper strongly questions the reasoning of the court in the case. The court, with respect, made several assertions that require demonstration both in law and in logic. Indeed, had the court paid more attention to the fact that the British authority decided to incorporate the terms of the Hague Rules into the CGSA in order to make it applicable by courts, both in Britain and in Nigeria, the court, would, perhaps, not have come to the conclusion that pre-1979 treaties required no domestication.

In concluding, the present writer would, as he had done in the past, urge the Supreme Court to overrule the view that an implementing statute is superior to any other Act of the national Assembly.[68]The court should also do well to overrule, at the earliest opportunity, the view it took in Brawalthat pre-1979 treaties do not require domestication in Nigeria.



[1]  Louis Henkin,‘The Constitution and UnitedStates Sovereignty: A Century ofChinese Exclusionand its Progeny’ (1986-1987) 100 Harv. L. Rev. 853, 863.

[2]Ibid 863,(noting that ‘domestic courts must give effect to international law, anything in the domestic constitution or laws to the contrary notwithstanding’); J.G Starke, ‘Monism and Dualism in the Theory of International Law’,(1936) Brit. Y.B. Int'l L 66, 69.

[3]Henkin,ibid 863.

[4]Yuji Iwasawa, ‘The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis’, (1985-1986) 26 Va. J. Int’l L. 627, 651 (noting, and rightly too, that despite the confusing signals from scholars, ‘States determine how to implement their international obligations on the municipal level [and that] [i]t is well recognised that municipal law determines the “validity” and “rank” of treaties in domestic law’); Alona E Evans, ‘Self-Executing Treaties in the United States of America’, (1953) 30 Brit Y.B Int’l L 178, 178 (arguing that, ‘the process of [municipal] enforcement [of treaties is] essentially a municipal law matter’.)

[5]Henkin(n 1) 863.

[6]See Starke (n 2) 81.

[7]See Lord Atkin in Attorney General for Canada v. Attorney General forOntario[1937] 1 A.C. 326,347

[8]As amended by First, Second and Third Amendment Acts, 2010

[9]See Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010

[10][2010] 18 NWLR (Pt. 1225) 495, 517.

[11]Made in Brussels on August 25, 1924.

[12]Now Cap C2 Laws of the Federation of Nigeria, 2010.

[13]Brawal(n 10) 535; Fabiyi JSC, (p. 542) (concurring that section 12(1) has no application to pre-1960 treaties.)

[14](n10) 535.

[15]Made in Brussels on 25 August 1924) and entered into force on January 4, 1956.

[16]Athanassios N Yiannopoulos ‘Uniform Rules Governing Bills of Lading: The Brussels Convention of 1924 in the Light of National Legislation’ (1961)10 Am. J. Comp. L. 374, 377.

[17]Yiannopoulos, ibid 376.


[19]There also was the Indian Carriage of Goods by Sea enactment of September 21, 1925; the Ghanaian (former Colony of Gold Coast) Act of March 13, 1926; Israel (former Mandate of Palestine) Act of December 1, 1926; Malaya Federation (former British Protectorate) Act of May 23, 1950; etc. See Yiannopoulos (n 16) 377.

[20]Yiannopoulos (n 16) 377.

[21]Protocol Amending the International convention for the unification of Certain Rules of Law Relating to Bills of Lading, 25 August 1924, as Amended by the Protocol of 23 February 1968 (1) (Brussels, 21 December 1979).

[22]TMC Asser, ‘Choice of Law in Bills of Lading’ (1973-1974) 5 J. Mar. L. & Com. 355, 400.


[24]See ‘State Succession’(1963) 2 Dig. Int'l L. 936, 1000.

[25]See the text of the Nigerian Act; KA Olatoye ‘The Hague Visby Rule: A Step Further in Maritime Legal Regime’ 1 University of Ilorin Law Journal 108, 111; andYiannopoulos (n 16) 377. Also see StaglinevFoscolo Mango[1932] 1 AC 328, 350 (stating, per Lord MacMillan that, ‘[i]t is important to remember that the Act of 1924 was the outcome of an International Conference and that the rules in the Schedule have an international currency’.)

[26]Yianopulous (n 16) 385.


[28]Asser [n 22] 367 (observing that municipal courts will apply their respective Hague Rules legislation whenever a bill of lading comes within the terms of the boundary rule of that legislation).

[29]Ibid 360.

[30]Yianopulous (n 16) 391.

[31](1999) 4 NWLR (Pt 605) 45, 54.

[32]See Abacha v. Fawehinmi (2000) 6 NWLR, (Pt. 660) 228,288.

[33]Christian N Okeke, ‘International Law In The Nigerian Legal System’(1996-1997) 27 Cal. W. Int'l L.J. 311, 337 (arguing that section 12 clearly shows that for a treaty to have the force of law in Nigeria, it must be enacted into law by the National Assembly and that the treaty necessarily requires an enabling act of the National Assembly). Also see Amos O Enabulele, ‘Implementation of Treaties in Nigeria and the Status Question: Whither Nigerian Courts?’ 17(2) AJICL, 326; Amos O Enabulele, ‘Enforcement of the Green Tree Agreement between Nigeria andCameroon: Matters arising under Municipal Law’ (2010) 3(1) Journal of Africa and International Law,31; Chilenye Nwapi, ‘International Treaties in Nigerian and Canadian Courts’, (2011) 19(1) AJICL 38, 48; Amos Enabulele & Bright Bazuaye, Teachings on Basic Topics in Public International Law, (Ambik Press, 2014) 88

[34]See the proviso to sections 69 and 74 of the 1960 and 1963 Constitutions respectively and section 12(3) of 1979 and1999 Constitutions. 

[35]Edwin Egede, ‘Bringing Human Rights Home: An Examination of the Domestication of Human Rights Treaties in Nigeria’ (2007) 51 J. Afr. L. 249, 280(observing that ‘the strictly dualist model under section 12(1) of the constitution, [is] a relicinherited from its colonial past’.)

[36][1891] AC, 572; Yiannopoulos (n 16) 377 (noting that ‘according to a well-settled constitutional doctrine in England, a treaty acquires binding force not by ratification but only after its proclamation as a statute by the King and Parliament’.)

[37]Attorney General for Canada v. Attorney General for Ontario[1937] AC 326 (PC). This is the inherited reality of all former British colonies. See Gibran Van Ert, ‘Using Treaties in Canadian Courts’ (2000) 38 Can. Y.B. Int'l L. 3, 13; R. St.J. Macdonald, ‘The Relationship Between International Law and Domestic Law in Canada’, in R. St.J. Macdonald et al. (eds), Canadian Perspectives on International Law and Organization (University of Toronto Press, 1974) 88; Kirby Michael, ‘Domestic Implementation of International Human Rights Norms’ (1999) 5(2) Australian Journal of Human Rights 109; Gib van Ert  ‘Dubious Dualism: The Reception of International Law in Canada’ 44(3) Valparaiso University Law Review, 927;  Kirby Michael, ‘Transnational Judicial Dialogue, Internationalisation of Law and Australian Judges’  (2008) 9(1) Melbourne Journal of International Law 171.

[38]International Tin Council Case, [1990] 2 AC 418; 29 ILM 670, 694-695.

[39]The present writer admits that he had once taken a cursory view of these provisions to reach the conclusion that implementation was not mandatory under the 1963 constitution, when in a footnote reference, he argued that ‘the implementation by means of municipal law was not mandatory under section 74 of the extinct 1963 constitution’ – Enabulele, ‘Implementation of Treaties in Nigeria’ (n 33) 330. On a more profound examination, the writer now argues differently and this view supersedes the earlier one.  

[40]Okeke (n 33) 329.

[41]Enabulele & Bazuaye, (n 33) 96 (arguing that it is entirely within the province of the National Assembly to decide whether it wants to fulfil a treaty obligation by enacting the substantive provisions of the treaty as Nigerian law or by adopting the full text of the treaty and giving it a form recognised by section 12(1) of the CFRN.)


[43]Enabulele “Implementation of Treaties in Nigeria”, (n 33) 332-333.


[45]Cap. A9, Laws of the federation of Nigeria, 2004. Also see Treaty on Mutual Legal Assistance in Criminal Matters between the Government of the Federal Republic of Nigeria and the Government of the Republic of South Africa (Ratification and Enforcement) Act, 2004; the United Nations Convention on Carriage of Goods by Sea (ratification and Enforcement) Act, 2005, (etc.) to each of these Acts, the relevant treaty was either simply annexed or reproduced verbatim.

[46]     Enabulele “Implementation of Treaties in Nigeria”, (n 33).

[47]     [1990] 2 AC 418; 29 ILM 670.

[48]Leventis Technical v. Petrojessica Enterprises Ltd,(n 31).

[49]Brawal(n 10) 535.

[50]  In Henry Stephens & Sons Ltd v. Polish Steamship Company & Anor(1969) 1 NSC 139 (holding that article 3 rules 6 of The Hague Rules, the schedule to the COGSA, was applied to inward shipping from Poland to Lagos); National Shipping Line Ltd(1987) 3 NSC 152, (holding that the Hague rules was applicable to inward shipping from London); Kaycee (Nigeria) Ltd v. Prompt Shipping Corporation & NPA No. 2(1986) 2 NSC 431. See for the contrary view: Allied Trading Company Ltd v. Elder Dempster Lines & NPA, (1976) 1 NSC 276 (holding that inward shipping from Madras to Lagos was outside the application of the schedule.)

[51]David R. Deener ‘Treaties, Constitutions and Judicial Review’ (1964) 4 Va. J. Int'l L. 7, 29  (arguing that regardlessof the judicial review powers of the court in a dualist system, it can only applydomestic law, and if domestic rules are not sufficient to carryout, or are in conflict with treaty obligations, that is not a matterfor the courts to resolve.); Fletcher Moulton L.J  in Salaman v. Secretary of State for India, (1906) 1 KB 613, 639 (holding that Municipal courts, ‘do not administer treaty obligations between independent States’)

[52]Western AustraliavWard (2002) 213 CLR 1, 390-391.

[53]Ibid,p. 535.

[54]6 U.S. 64, 118 (1804)

[55]Brawal (n 10) , p. 531

[56](1990) 7 NWLR (pt. 163) 607. This view was cited with approval in the subsequent decision of the Court of Appeal in UAC (NIG) Ltd v. Global Transport  S.A, (1996) 5 NWLR (pt. 448) 291, 229, while considering the provisions of the Hague Rules incorporated into the Carriage of Goods by Sea Act.

[57]Brawal (n 10) 535-536; Abacha v. Fawehinmi (n 32) 316-8, is the most famous case on this view. It was held in the case that the African Charter on Human and People’s Right (Enforcement and Ratification) Act, (n 45), existed on a higher pedestal than that of other Nigerian laws. 

[58]Egede (n 35)258 (observing that ‘section 12(1) does not in any way distinguish between treaty legislation and other municipal laws’)

[59][2006] 14 NWLR Pt. 1000, 249

[60](n 32)

[61](1979) 3 All ER 325 at 329 (Lord Denning MR reasoned that ‘the time should come when our Parliament deliberately passes an Act with the intention of repudiating a Treaty or any provision in it or intentionally of acting inconsistently with it and says so in expenses terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament’.)

[62]See Sobhuza II v. Miller & Ors(1926) AC 518, 528, (Viscount Haldane, holding that a convention cannot legally interfere with the exercise of a subsequent sovereign power of the Crown or invalidate subsequent Orders in Council).

[63](United States of America v.Italy), ICJ Rep 1989, 15, 51, [73].

[64](n 60).

[65]Article 27of the Vienna Convention on the law of treaties, 1969; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, ICJ Rep, 1950, 221, 228 (holding that ‘refusal to fulfil a treaty obligation involves international responsibility’); Rainbow Warrior (New Zealand/France), UNRIAA, vol. XX, p. 217, 251, [75] (1990) (holding that  any violation by a State of any obligation, of whatever origin, gives rise to State responsibility);Free Zones of Upper Savoy and the District of Gex, 1930, PCIJ., Series A, No. 24, p. 12; Free Zones of Upper Savoy and the District of Gex, 1932, P.C.I.J., Series A/B, No. 46, p. 96, 167 (holding that ‘... it is certain that France cannot rely on her own legislation to limit the scope of her international obligations’); International Law Commission Draft Articles on Responsibility of States for internationally wrongful Acts Adopted by the International Law Commission at its fifty-third session (2001), (affirming that ‘The characterization of an act of a State as internationally wrongful is governed by international law.  Such characterization is not affected by the characterization of the same act as lawful by internal law’.)

[66]Ibidapo v. Lufthansa Airlines, (1997) 4 NWLR (Pt.498) 124 (holding that the omission of the Carriage by Air (Colonies, Protectorates, and Trust Territories) Order, 1953 from the Laws of Federation of Nigeria 1990 did not derogate from its continued validity and effect; Raleigh Industries (Nig.) Limited v. Nwaiwu(1994) 4 NWLR (Pt. 341) 760, (holding that the omission of the English Limitation Act of 1623, a Statute of General Application, from the list of Imperial Statutes and other United Kingdom legislations applying to Northern Nigeria in Vol. V, Laws of Northern Nigeria, did not make the law inapplicable to Kano State. Teleglobe America, Incv. 21st Century Technologies Limited(2008) 9 CLRN 32, CA (upholding the validity of the Reciprocal Enforcement of Judgment Act, 1922, Chapter 175, Laws of the Federation of Nigeria and Lagos, 1958 notwithstanding that it was omitted from the 1990 and 2004 compilations of Laws of Nigeria)

[67]Enabulele, “Implementation of Treaties in Nigeria” (n 33) 340-1

[68]Enabulele & Bazuaye,Teachings on Basic Topics, (n 33, p. 92 (stressing that ‘Abacha v Fawehinmiis a dangerous precedent insofar as it relegates the subsequent will of the political organs of government to a secondary position in relation to a domesticated treaty’. And that “[t]his is particularly so as the decision was not based on any clearly identified legal principle’); Enabulele, ‘Implementation of Treaties in Nigeria’, note 3, p. 341 (urging the Supreme Court to ‘overrule the case of Abacha v. Fawehinmi; establish that all Acts of the National Assembly whether implementing a statute or not, are of equal status, and enthrone the last in time rule’).


Secularism Imperative cum Dissonance in Nigeria

By Bright BazuayePhD (Benin), BL (Nigeria); Barrister and Solicitor of the Supreme Court of Nigeria and Associate Professor, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Benin City, Nigeria. Email address: This email address is being protected from spambots. You need JavaScript enabled to view it..                          


Freedom of religion has its pride of place. The relationship between religious beliefs and deeply held secular convictions, the scope of freedom of religion, and the place of religion in the public sphere can be problematic. In particular, the freedoms of conscience, worship and religion can be undermined by intolerance. Yet all is not darkness. Deeply entrenched beliefs can be circumscribed. To achieve this, it is important that secularism is properly disaggregated. Pluralistic society flourish when there is respect for all religions and religious beliefs. But dynamic realities on the ground in states may suggests a different secular configuration. Nevertheless, secularism if properly understood, offer the path to religious freedom. Secularism is essential in pluralistic society and is capacious enough to accommodate religious differences, while holding out hope for a world in which diversity no longer divides. The place of international instruments cannot be over emphasised. Some of these international instruments: the Universal Declaration of Human Rights (UDHR); the International Covenant on Civil and Political Rights (ICCPR); the African Charter on Human and Peoples’ Rights (ACHPR), and the European Convention on Human Rights (ECHR) contain provisions on fundamental human rights, even though they differ in content and scope they have continued to shape the relationship between state and religion. Closely related are the time-honored theory of compelling public interest and the margin of appreciation theory that can assist in difficult situations that may arise. The proper understanding and application of these principles offers a commonly accepted, legitimate, objectively grounded bases for clarifying issues when state and religion intersect. I am of the view that even if difficulties endure, in a multi-cultural and multi-religious society like Nigeria, where people profess different religion and are split up into number of sects, practical separation of religion and state remains the best workable arrangement.


A major challenge facing societies today is how to handle ‘religious diversity’.[1]Expectedly, religious diversity raises socio-legal concerns,[2]and further generates tension between individuals’ freedom to practice their religion and the freedom of others to practice theirs.[3]Heuristically, religious freedom protects both religious minorities and the majority, making it one of the linchpins accentuating the rule of law and human rights.[4]Unfortunately, since Nigeria’s independence in 1960, Nigeria has been grappling with the problem of religious intolerance,[5]as violently demonstrated by the various religious crises that the nation has experienced since inception,[6]not to mention the religious undercurrent that influences the choice of political leadership,[7]and succeeded in creating mistrust surrounding economic decisions.[8] With that being said, the rhetoric on religious freedom continues to remind us of the need to properly delineate the relationship between state and religion.

To achieve its aim, this article proceeds as follows: part II examines the freedom of religion and its conceptualization; part III examines secularism; part IV examines the role of international instruments in promoting religious freedom; part V examines religious freedom and secularism under the Nigerian constitution; part VI examines some of the theories courts have adopted towards the interpretation and application of religious freedom; the article concludes in chapter VII. 

Freedom of Religion

Freedom of religion has its pride of place, so much so that it is labelled as ‘the first freedom,’[9]in the United States and listed first in the America Bill of Rights, based on its foundational historical role in the establishment of free institutions.[10]In fact, Thomas Jefferson unequivocally regarded ‘the constitutional freedom of religion’ as ‘the most inalienable and sacred of all human rights’.[11]

In Dimitras and Others v. Greece[12], the European Court of Human Rights (ECtHR) stressed the importance of freedom of thought, conscience and religion as the  cornerstone of a modern state. . Religion has its ultimate goal in the worship of a deity. Each religion guarantees the way adherents to its tenets lead their lives, from cradle to grave; it integrates its adherents, sometimes, into a close-knit community and defines their identity.[13]In its extreme form, religious tenets may have the effect of socially alienating adherents from the other members of the society, whose socio-choices may be offensive to the tenets of the religion. This extreme form of religion embodies intolerance and creates a barrier to inclusiveness and integration as other members of the society would reciprocally decry the critical attitude of the religious sect. Religion may thus be weaponized to disrupt diversity by segregating adherents to a particular faith from those of others; it may engender mutual suspicion and become a formidable warpath, if not properly managed in a religiously diverse society.

It is therefore essential for policy makers and judges to be vigilant to such self-segregating tendencies that are founded on religious beliefs – no matter how mild it appears – especially when sought to be inculcated in children. In Osmanoǧlu and Kocabaş v. Switzerland,[14]some Muslim parents objected to the participation of their daughters in swimming lessons as part of their schooling, on the ground of religious convictions. In demonstration of a clear policy stance, the ECtHR[15]noted that the applicants’ are entitled to freedom of religion.  Nevertheless, the Court noted that the interference was permitted by law and reasonable. The Court was of the thoughtful view that children’s interest in swimming lessons is an important step in social integration and should therefore override parents’ religious convictions.

Though outwardly manifest, in its pristine state, religion is a product of an inward conviction that is not seen except when demonstrated; it is rooted in such concepts as faith, belief and conscience. As defined by Fagothey:

Freedom of conscience is a natural and inalienable right. Just as citizens have a right to say what they think, so they have a right to do what they sincerely believe is required of them……. The only way in which a man can accept religious teaching is by being intellectually convinced of its truth. If we are convinced of its truth, we are morally bound to accept it; if we are convinced of its falsity, we are morally bound to reject it; if we are doubtful, we have the right to reserve judgment until further investigation convinces us one way or another. The state has no means at its command to enforce its will except the use or threat of physical coercion, which might produce a hypocritical conformity but cannot beget conviction.[16]

Clearly, freedoms of conscience, worship and religion are inextricably tied. Unfortunately, these freedoms can be undermined by intolerance. Nevertheless, intolerance orchestrated by any religion is in marked contrast with what John Rawls referred to as ‘our common human reason.’[17]The fact remains that the basic human right to religious liberty, principles and arguments is available to all men and women of sincerity and goodwill.[18]In this connection, Fagothey supports a protective course of action and advocated tolerance in the following words:

Any religion which considers itself as the only true religion must condemn contradictory religions as false and so cannot be dogmatically tolerant. Political tolerance is the willingness to let others profess the religion they accept even though you consider that religion false. Political tolerance can exist together with dogmatic tolerance. What is there to prevent people of different faiths from living harmoniously side by side and agreeing to differ in religious belief, each respecting the other’s political right to follow his conscience.[19]

The need for tolerance among people of different faiths cannot be overemphasised. ‘Among man’s many duties as an individual, those to God take the first place in dignity.’[20]Religion has allowed this. This reality will now be brought into focus. To proceed further, it is important at this point to conceptualize the term religion and situate its nexus to belief.

Religion and Belief

Philological evidence suggests that religion is from the Latin religio,but scholars do not agree on its remote derivation.[21]Cicero takes it from ‘relegere’ to ‘retrace or re-read’,[22]Lactantius, derives religion from re-ligare, ‘to bind back’,[23]reflective of the strong pull and devotion religion evokes on its devotees. According to Dewey and Humber, religion is the existence of a relationship in which some object(s) material or non-material is defined as sacred, worthy of being revered and protected.[24]In a way, this accord with the Black Law’s Dictionary definition that religion is ‘a system of faith and worship unusually involving belief in a supreme being and usually containing a moral and ethical code, especially, such a system recognized and practiced by a particular church, sect or denomination.’[25]

The use of the word ‘belief’ is quite instructive. Religion has belief at its core among other aspects.[26]Put differently, all religious actions are complex systems of beliefs and claims tied to such actions, and not the action themselves or the emotion involved. Clearly, religion can be seen from the prism of an ideology, ‘that part of culture which is actively concerned with the establishment and defence of patterns of beliefs and values.’[27]This, unfortunately, can and do stimulate emotive fervor in adherents.[28]

Even with the word ‘belief’ at its core, it is important to stress that ‘belief’ has no simple and straightforward conceptualization. Belief may include various philosophies which are recognized in a democratic society.[29]In Arrowsmith v. United Kingdom,[30]pacifism’ was adjudged a belief, a philosophy within the bounds of thoughts and conscience. The ‘belief in spirits’ inhabiting an invisible world and our relationship with them is also another irreducible belief common to almost all religions.[31]There are certain minimal categories of behaviors which are always found in association with one another and which are the substance of religion itself.[32]To forestall religion and state mix and its deleterious effects, states have resorted to secularism.

Secularism Anecdote

Secularism can be described as the separation of religion and state,[33]‘… a political and legal system whose function is to establish a certain distance between the state and religion.’[34]Some believe ‘that secularism is a clear and unequivocal principle that ought to be applied everywhere in the same way.’[35]In the public space, this means that secularism should be applied scrupulously.[36]With no consensus on the term secularism, ‘diverting attention from definitional obsessions’[37]to a more manageable approach will be far more subtle. In this connection, secularism would be more clearly understood by distinction. Underlining this view are the characteristics of a secular government that will now be considered.

Characteristics of Secular Governments

Firstly, in secular governments, sovereignty belongs to the people,[38]and not to a divine body.[39]  Secondly, there is no state and religion mix  in a secular government.[40]  The implication of this is that laws and regulations are not based on religion.[41]  Thirdly, a secular government maintains neutrality towards all religions[42]. This means that governments should not have an official religion or protect one religion over another.  In other words, individuals, notwithstanding their religious persuasions, are equal before the law. Fourthly, in a secular government, public schools in particular and legal systems must separate religion and state. The legal system should not contain laws based on religion.  Fifthly, a secular government must of necessity guarantee freedom of religion and conscience. Indeed, ‘secularism, then, must be understood within the context of the more general ideal of neutrality, to which the state must aspire if it wishes to treat citizens fairly.’[43]Neutrality does not however connote lack of interference;[44]the state is empowered and must in fact, from time to time, interfere in the religious sphere but such interference must be done by law and geared towards achieving a legitimate purpose. With that said, it is clear that freedom of religion imposes a duty on the state to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs.[45]

It has for instance been found by the ECtHR that the interference of the state in a leadership tussle of a divided religious sect with a view to installing the state-preferred factional leader is an arbitrary interference, and thus contrary to law.[46]Religious neutrality must for all purposes be understood in the light of the view of the ECtHR that the right to freedom of religion excludes, in principle, any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.[47]

With that said, secularism is not the absence of religion from society but a presence of religious neutrality on the part of officials. As Micheline Milot puts it, secularism is:

 … a development of the political realm by virtue of which freedom of religion and freedom of conscience are guaranteed, in conformance with a willto establish equal justice for all, by a state that is neutral toward the various conceptions of the good life coexisting in society.[48]

It has in fact been held by the ECtHR that “State Church system cannot in itself be considered to violate Article 9 of the Convention”.[49]According to the court:

A State Church system cannot in itself be considered to violate Article 9 (Art. 9) of the Convention. In fact, such a system exists in several Contracting States and existed there already when the Convention was drafted and when they became parties to it. However, a State Church system must, in order to satisfy the requirements of Article 9 (Art. 9), include specific safeguards for the individual's freedom of religion. In particular, no one may be forced to enter, or be prohibited from leaving, a State Church.[50]

Indeed, in a pluralistic society, respect for all religions and religious beliefs is an important feature.[51]  It must be observed, though, that the concept of equal respect for all religions is an ideological only description of a theoretically perfect secular government, an archetype, which is hardly possible in practice. The difficulty here lies in the fact that religious neutrality is a modern superimposition upon religion which is a primordial component of society. Every society has a religion to which it was first associated and on which tenets some states were established.[52]It is not disputable that many European and American states were established upon the tenets of Christianity in the same way that Arab States are established upon the tenets of Islam.[53]The fact that the original religion has been established over centuries and has permeated every fibre of society before other religions infiltrated into the society makes equality between the original and new religions very relative. It would take a very long time to deconstruct the supremacy of the original religion and its emblem from the legal, legislative and political consciousness of states. Perhaps, this was one of the dilemmas Georgehad in mind when he observed that ‘…secularism is not a single, simple principle, dilemmas are generated, and secular states must find ways to resolve them’.[54]

IV Religion and International Instruments

The reality of the point about the original state religion in the preceding section explains why neutrality often eludes national laws and national courts; it explains why international law and international courts have been more successful in enforcing religious neutrality. There is ample evidence to suggest that international instruments have served directly and indirectly as model for many domestic constitutions, laws, regulations, and policies that protect fundamental human rights.[55]These domestic manifestations include direct constitutional reference to seminal provisions in these international instruments.[56]

International instruments contain provisions on fundamental human rights, [57]which though they differ in content and scope, have continued to shape the relationship between state and religion. Some of these international instruments are: the Universal Declaration of Human Rights[58](UDHR); the International Covenant on Civil and Political Rights (ICCPR);[59]the African Charter on Human and Peoples’ Rights (ACHPR),[60]and the European Convention on Human Rights (ECHR).[61]These instruments do not just protect both freedom of religion and expression,[62]they have also been the catalyst that have broken down religiously practices, such as certain religion-based discriminatory laws.

The Universal Declaration of Human Rights (UDHR)[63]

The UDHR represents the expected and agreed set of principles which all nations are required to attain, to ensure freedom for all peoples. Article 1 of the UDHR provides that all humans are born free and equal in dignity and rights and that they are endowed with reason and conscience, and should act towards one another in the spirit of brotherhood.[64]Article 18 guarantees the right to freedom of thought, conscience, and religion; its provisions were expanded upon in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief adopted by the U.N. General Assembly.[65]Article 39 of the UDHR authorizes a state to restrict such rights and freedom to meet the requirements of morality, public order and the general welfare in a democratic society.[66]

The Declaration’s Preamble considers that ‘religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed.’[67]Optimistically, the Special Rapporteur on Iran of the U.N. Commission on Human Rights stated that freedom of thought, conscience, and religion has ‘the character of jus cogens.[68]This is however, in marked contrast with the suppression evident in certain religions, which makes acceptance of such claim challenging.[69]The fact that some Islamic countries have denied Muslims the right to change religion[70]has further diminished the possibility.[71] 

This is not the place to debate the normative quality of the UDHR, i.e., whether it is a rule of customary international law. However, there is room for the quick remark that though UDHR is a declaration, which, generally speaking, is not intended to be opposable to any state, the UDHR has since its declaration been the cornerstone of the great progress in the protection of human rights and fundamental freedoms in the succeeding years. Even if it is successfully argued that the declaration has no normative status, such cannot be said of its provisions and principles. In fact,  in United States Diplomatic and Consular Staff in Tehran,[72]the International Court of Justice (ICJ) referred to the fundamental principles enunciated in the UDHR.[73]While some of the provisions contained in the declaration, such as the right to life definitely predated the declaration, provisions relating to the right to religion, which were enunciated in the declaration had arguably not been generally accepted by states in 1948 to be seen as part of customary international law, have ‘in the subsequent … decades developed under the influence of the … [international human rights treaties] to such an extent that a number of rules contained in the [UDHR] have acquired a status independent of it’.[74] 

However, there would seem to be little argument that many provisions of the Declaration today do reflect customary international law. Accordingly, there is merit in the argument that ‘…any state that violates any provision of the Declaration has violated [customary] international law. Almost all would agree that some violations of the Declaration are violations of international law.’[75]Importantly, states have hardly specifically rejected the principles proclaimed in the UDHR,[76]which is seen as a fundamental part of what has become known as the Universal Bill of Human Rights.[77]

The International Covenant on Civil and Political Rights and the Optional Protocol (ICCPR)

The ICCPR is regarded as the most important international instrument on the issue of religious freedom.[78]Article 18 (1) provides: “Everyone shall have the right to freedom of …religion. This right shall include freedom to have or adopt a religion or belief of his choice…” The article also states that no one shall be subjected to coercion which would impair his freedom to have or adopt a religion.[79]

The Optional Protocol to the ICCPR also has significant implications for freedom of religion. Article 1 of the Optional Protocol provides:

A State Party to the Covenant that becomes a Party to the present Protocol Recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdictions who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant.[80]

European Convention on Human Rights (ECHR)

The ECHR[81]is a regional instruments adopted by the Council of Europe. Article 9 of the ECHR provides:

Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief and freedom either alone or in community with others and in public or private to manifest his religion or belief in worship teaching practice and observance.[82]

The above provision protects an individual from persecution on grounds of his or her thoughts beliefs or religion and is absolute in the sense that it is not subject to the restrictions laid down in paragraph 2 of the article. It guarantees the right of the individual not only the freedom to belong to a faith or possess different beliefs (which includes persons such as agnostics, atheists, pacifists, skeptics etc.) but also to ‘manifest’ that religion or belief via the means of worship, teaching, practice and observance.It includes the right to conscientious objection to military service. This right is recognised in all member states of the Council of Europe, but Turkey. The non-recognition of this right violates Turkey’s obligations under international human rights law as well as domestic law.[83]

The African Charter on Human and Peoples’ Rights (ACHPR)

The Preamble to the African Charter states that, it is inspired by the “virtues” of African “historical tradition” and the “values of African civilization.”[84]It specifically prohibits discrimination based on religion[85]and guarantees freedom of religion or belief.[86]The charter’s concept of human rights requires the state not only to protect religious freedom but also to promote and protect “morals and traditional values recognized by the community,” to assist the family the ‘custodian of morals and traditional values,’ and to join popular struggles against ‘foreign cultural domination.’ The role is analogous to that of ECHR even though within the African context.[87]

The next section discusses the secularism in Nigeria. This discussion shall mainly feature the African Charter and the Constitution of the Federal Republic of Nigeria, 1999 (CFRN) (as amended).

Nigeria Constitution and Secularism

Section 14(1) (a) of the CFRN provides that ‘sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority.’ The import of this provision is that, whereas, sovereignty resides in the state, the state in itself derives its sovereignty ultimately from the people who have collectively yielded sovereignty to the state via the constitution. The state is therefore sovereign to the extent that the constitution permits.

Faced with the emotive issue of religion in Nigeria, section 10 of the 1999 Constitution[88]provides that: ‘The Government of the Federation or of a State shall not adopt any religion as State Religion’, thus ensuring the absence of a State religion. It has been argued that the significance of this provision is that no aspect of governance, federal or state, should be run according to the exclusive dogmas or jurisprudence of any religion.[89]However, Section 38 (1) of the 1999 Constitution provides that:

Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.[90]

Freedom to religion in Nigeria is further amplified in article 8 of the ACHPR, which has been domesticated in Nigeria by virtue of the ACHPR. Importantly, the prevailing jurisprudential stance in Nigeria is that by reason of the international flavor given to this Act by the ACHPR, it cannot be derogated from by ordinary laws of the land.[91]  

In Abdulkareem & Anor. v. Lagos State Government,[92]the first respondent (Lagos State Government) restricted the use of Hijab (female Muslim head covering) by female Muslim students in public primary and secondary schools in Lagos state. The appellant (Abdulkareem) claimed that the restriction amounted to a breach of her rights to freedom of thought, conscience and religion and freedom from discrimination. The trial held in favour of the first respondent. The court stated that by virtue ofsection 10 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Nigeria is a secular state. On appeal, the Court of Appeal unanimously held, inter alia, that the respondents’ refusal to allow the first and second appellants to wear hijabs on their school uniform during or after school hours breached their right to freedom of religion, because the wearing of hijab by female Muslims constitutes an act of Islamic worship within the contemplation of section 38. That such refusal by the Lagos state government amounted to discrimination against the female Muslim students and therefore violated their right to freedom from discrimination on the ground of religion guaranteed by section 42(1) of the 1999 CFRN.[93] 

The Court of Appeal stated, however, that the right to freedom of religion is not absolute and is subject to the exceptions stipulated under section 45(1) of the CFRN, namely, not meant to invalidate any law that is reasonably justifiable in a democratic society: (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons; or may be restricted during a duly proclaimed and approved period of emergency. The court further held that the trial court breached the parties’ right to fair hearing when it suo moturaised the issue and resolved it without hearing from the parties.In the twilight of 2017, Amasa Firdaus Abdulsalam, a Nigerian law school graduate was denied call to the bar for refusing to take off her hijab.  She was in fact not permitted by the Body of Benchers to enter the International Conference Centre on December 12 venue of the ceremony. According to reports, Abdulsalam called the refusal of the Nigerian Law School to call her to the bar a violation of her right to freedom of religion as protected by Section 38 of the 1999 Constitution.[94]With the exception of their shared temporal relationship, these events might at first appear unconnected and disparate. They are not. Each of these cases is reflective of the simmering undercurrents in the tempestuous[95]relationship between state and religion in Nigeria.

A particularly curious point was made by the Court of Appeal in Abdulkareem & Anor. v. Lagos State Government,that the declaration in section 10 of the constitution does not make Nigeria a secular state. Gumel JCA (Justice of the Court of Appeal) stated that:

Nigerians are deeply religious and the faithful across the religious divides do not fail to assert their religious identities at the slightest opportunity. Some do it out of regular religious convictions, but some are fanatical, fundamentalist or merely bigoted… in other words, we are a multi-cultural and multi-religious society.[96]

It is difficult not to dispute this view of the Court of Appeal. It appears wrong to seek to discredit the secular stance of a state with the fact that the individuals and groups are religious. The fact that the religiousness of individuals and groups within the state are diverse with the concomitant freedom of choice of religion is itself an indication of secularity. The people may well be religious but insofar as the state has not adopted any particular religion and allows freedom of religion, the religiousness of the people cannot sufficiently dispel secularity. It is well possible to separate the beliefs of individuals from the constitutional stance on matters. Justice Brennan (a roman catholic) of the Supreme Court of the United States once testified (after three decades on the bench) that ‘as a private citizen,’ his religious beliefs had never influenced his position on legal cases because he had, at the time of his confirmation, ‘settled in my mind that I had an obligation under the Constitution which could not be influenced by any of my religious principles.’[97] 

The assertion that Nigeria is a multi-cultural and multi-religious state, is true.[98]But does it detract from the secular prescription provided for in section 10 of the Nigeria Constitution. Are all secular states pluralistic(multi-cultural and multi-religious)?[99]Conversely, are all pluralistic states secular? If all secular states are pluralistic, then secularism is coterminous with pluralism. In practice this is not the case. Why is that so? The reason for this is not farfetched. It is not in all cases a state must first have plurality of religion to necessitate secularism. Secularism may normatively appeal to a state irrespective of pluralism of religion. Conversely, a pluralistic state may consciously ignore secularism. When that happens, what will become apparent is the rejection of secularism leanings.  Although this was not stated in so many words in Abdulkareem & Anor. v Lagos State Government,[100]it can be deduced. The assertion that Nigeria is not a secular state is antithetical to the Appeal Court endorsement of the use of hijab in public schools in Lagos State. The endorsement of the use of hijab is a fillip to the secular provision in the Nigeria Constitution. In fact, that was precisely the kernel of the decision.  It is important to emphasise that, secularism as an archetype, is of a special genre. The quest for secularism by states together with the compelling interest and the margin of appreciation theories are indicative that a secular state is better described than defined.  The statement on the multiplicity of religion is at best a restatement that Nigeria is a secular state.

The normative relationship between state and religious rights is by no means straightforward the world over.  In Nigeria, enforcement of laws in a disparate ethnic and religious mix,[101]with a system of law and administration of justice that is tripartite[102]may appear to conflict with the right to manifest religion or faith. All the same, freedom to manifest religion or faith and the right to freedom of expression are not absolute. The limitations set out under section 45 of the Constitution[103]for the interest of defence, public safety, public order, public morality, public health or for the purposes of protecting the rights and freedom of other persons are sensible limits on this right. This is particularly when the freedom to manifest religion or faith becomes imbued with divisiveness.[104]Nevertheless, permissible restrictions must accord with any law reasonably justifiable in a democratic society.

Of course, there are crevices in the theory and practice of secularism. This is understandably so, as dynamic realities on the ground in states, may sometimes suggest a different secular configuration.It should be emphasized that, a theoretically perfect secular government only exist in the realm of conjecture.In certain situations, it is expedient to clog freedom of religion, albeit freedom of expression. This can be less problematic in the light of the compelling state interest theory as enunciated by courts in the United States.

Theoretical Approaches

Compelling Public Interest Theory

Generally, the constitutionality of a statute or regulation depends largely on the extent they restrict the practice of a fundamental right. For the validity of a statute or regulation, a compelling public interest that can be furthered only by the law in question must be evinced. Properly understood, the principle can address to a large extent difficult issues that may arise in the relationship between state and religion. Compelling public interest theory[105]is ideal for ‘pluralistic’ society; since all irrespective of religion hold substantially in common what is fundamentally good or bad for humans. The following explication of the principle of compelling public interest will shed light on its usefulness.

InUnited States v. Lee,[106]Amish objection to compulsory participation in the Social Security system was refused. The objection was to the effect that payment of taxes by Amish employers and employees and the receipt of public financial assistance were forbidden by their religious beliefs. The court accepted this as a statement of fact, nonetheless, the court held that governmental interest was compelling and therefore sufficient to justify the encumbering of religious beliefs.[107]Clearly, compulsory payment of taxes was necessary for the vitality of the system, and to tolerate voluntary participation or other exceptions would undermine its administration.  Although it is logical that religiously motivated conduct should not be accorded special protection, laws should not single out religiously motivated conduct for adverse treatment.

Margin of Appreciation Theory

The margin of appreciation is prominent in the jurisprudence of the ECtHR. Generally, the margin of appreciation refers to the room for maneuver that the court is prepared to accord national authorities in fulfilling their obligations under the ECHR. It is generally believed that the term is not found in the text of the Convention itself, nor in the travaux préparatoires, but first appeared in 1958 in the European Commission’s report in the case brought by Greece against the United Kingdom over alleged human rights violations in Cyprus.[108]

The case of Leyla Sahin v. Turkey, which culminated at the ECHR[109]is illustrative of this theory. Leyla Sahin,  was a student of  the University of Istanbul[110]The University had their dress code for students which Leyla Sahin must abide by. She refused to obey the University dress code that forbade students from wearing a headscarf. She was subsequently suspended. 

Dissatisfied with the suspension, she challenged the suspension at the Istanbul Administrative Court without success. This position was affirmed by the Constitutional Court and the Council of State.  Ms. Sahin then approached the ECHR, and alleged that the ban by Turkey of the Islamic headscarf in universities violated Article 9 (Freedom of Religion) and Article 2 of Protocol No. 1 (Freedom of Education) of the Convention.[111] 

Ms. Sahin’s argument was to the effect that the proscription  of the Islamic headscarf in Turkish schools  ‘constituted an unjustified interference with her right to freedom of religion, and, in particular, her right to manifest her religion’[112]Article 9 states:

  1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance.
  2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic societyin the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.[113]

The question for determination by the court was the alleged interference by a member state with Sahin’s right to freedom of religion within the meaning of Article 9, section 1 of the Convention. This issue of interference was therefore largely pivotal. It is only when interference is established there can be a violation of Article 9. But even with interference, the court may still conclude that there is no violation if it concludes that the interference with the freedom to exercise one’s religious beliefs was prescribed by law and was necessary in a democratic society within the meaning of Article 9, section 2 of the Convention. Arising from the foregoing,  the ECHR Chamber unanimously held that Turkey had not violated Article 9 of the Convention.   

The Court stressed that the principles of the Convention, permitted ‘margin of appreciation,’ or deference, to member states.  The Court emphasised the importance of this margin particularly having regard to the dynamic relationship between state and religion in  democratic societies.[114] 


Reflectively, taking a long view, the rough edges in the relationship between state and religion can be sapping to say the least. Happily, getting the best out of the delicate relationship is possible. The state in the promotion of the security and welfare of its people, need to exude demonstrable commitment to secularism. To achieve this, a state like Nigeria must ensure that its treaty and constitutional obligations are not undermined. Once an inexorable match in this direction is evident, religious practices rooted in intolerance, extremism, unhealthy competition for power and resources would diminish.      

The capacity of the judiciary to perform its critical role as the bastion of human rights and the watchdog of the constitution is paramount. As exemplified in the cases examined above, courts have the important role of ensuring that arms of government operate within the ambit of the constitution. Of course, an antidote to executive and legislative excesses. More importantly, by its own special status courts protect all enforceable human rights. If it fails, the result is usually cataclysmic. To obviate that possibility, Nigeria’s quest for democratic consolidation and peaceful co-existence requires a strong and independent judiciary. An independent judiciary, one of the central support upon which our freedoms and liberties revolve, and upon which the rule of law and governance depend. 

But more crucially, in a religiously diverse state, to a significant degree, the standoff is often due to misinformation or to a reluctance to tolerate others. Secularism if properly understood, may offer the path to religious freedom. There are principles that can be galvanized in difficult situations that may arise. As mentioned above, they are the time-honoured theory of compelling public interest and the margin of appreciation theory. The proper understanding and application of these principles offer a commonly accepted, legitimate, objectively grounded bases for clarifying the issues and taming the rough edges when state and religion intersect.  Even if difficulties endure, in a pluralistic society where people profess different religion and are split up into number of sects, practical separation of religion and state remains the best workable arrangement.


[1]Jocelyn Maclure and Charles Taylor, (2011) Secularism and Freedom of ConscienceJane Marie Told (tr.)Harvard University Press, 1.

[2]Satvinder S. Juss, (2017) ‘The Justiciability of Religion’  32(1) Journal of Law and Religion 285-310

[3]Kaase Tony Fyanka, (2011) ‘Human rights controversies and the paradigm of the rule of law’ 2(2) Journal of Human Rights 13.

[4]Mohammed T. Ladan, (2013) ‘Managing diversities for peaceful co-existence in a democratic Nigeria’ being a paper presented at a National Conference organized by the IPCR , Abuja on the 20th of August, 2013.

[5]See Isaac Terwase Sampson, (2014) ‘Religion and the Nigerian State’ 3(2) Oxford Journal of Law and Religion 311-339.

[6]See Nigeria: 10 ‘gruesome killings in the name of religion’, Nigerian Bulletin https://www.nigerianbulletin.com/threads/nigeria-10-gruesome-killings-in-the-name-of-religion.214916/(accessed 19 May   2018).

[7]See Nigeria Punch Newspaper of June 26, 2017 http://punchng.com/condemn-perpetrators-of-religious-crisis-can-tells-muslim-leaders/(accessed 19 May 2018)

[8]http://punchng.com/sukkuk-bond-promotion-of-religious-financial-policy-violates-constitution-can-says/Nigeria Punch Newspaper of September 19, 2017 Sukkuk Bond: Promotion of Religious Financial  Policy Violates Constitution, Christian Association of Nigeria (CAN) in a statement accessed19 May 2018

[9]Robert P. George, (2016) Conscience and its Enemies: Confronting the Dogmas of Liberal Secularism( Isi Books,) 118.


[11]Thomas Jefferson, ‘Freedom of religion at the University of Virginia’, in the complete Jefferson 957, 958 (Saul K. Padover ed.,) (1969) cited in Steven  D. Smith, ‘The rise and fall of religious freedom in constitutional discourse’ (1991) 140 University Of Pennsylvania Law Review 149, 153

[12]Application no 36836/09: European Court of Human Rights

[13]See John Finnis, (2011) Natural Law and Natural Rights, (2nded. Oxford University Press,) chs. 3-4

[14][2017] ECHR 14.


[16]Milton A. Gonsalves, (1989) Fagothey’s Right and Reason: Ethics in Theory and Practice9th edn, Prentice Hall, 395-396.

[17]John Rawls, (1993) Political Liberalism  (expanded edn, Columbia University Press, 137.

[18]Robert P. George, Conscience and its Enemies: Confronting the Dogmas of  Liberal Secularism  (n 9), 126.

[19]Austin S. J. Fagothey, (1959) Right and Reason: Ethics in Theory and Practice,2ndedn, The C. V. Mosby Company,  426.

[20]Ibid., 264

[21]Fagothey,  Right and Reason: Ethics in Theory and Practice,(n 17), 426.

[22]Cicero, De Natura Deorum,  bk, 11, xxviii cited in Fagothey, Ibid.

[23]Lactantius,Divinarum Institutionum, bk. 11, xxviii; Religion signifying ‘binding back to God’ finds favour with the following: See St. Augustine, Retractations, bk. 1, xiii; St. Thomas, Summa Theologica, 11-11,q 81, a. 1..

[24]R. Dewey and W.J. Humber, (1966) An Introduction to Social Psychology,Macmillan,  287-288.

[25]10thedn (Thompson West, By Bryan A Garner, MN 2014) 1482.

[26]George Moyser,(1991) Politics and Religion in a Modern World  (Roultledge, 10.

[27]Leonard Weinberg and Ami Pedazhur, (2005) Religious Fundamentalism and Political Extremism(Frank Cass Publishers, 14.


 [29]Edwin Short and Claire de Than, (1998) Civil Liberties: Legal Principles Of Individual Freedom, Sweet and Maxwell, 507.

[30](1981)3 E.H.R.R. 218.

[31]Weinberg and Pedazhur (n 25)14.

[32]Wallace Anthony F.C., (1966)Religion: An Anthropological View(New York. Random House, 52.

[33]See Adrien Katherine Wing & Ozan O. Varol, (2007) ‘Is Secularism Possible in a Majority Muslim State?: The Turkish Example’  42  TEX J. INT’L L.1. (Emphasising that although Muslims account for ninety-nine  percent of Turkish’s population, the country is democratic and secular and is not a theocracy)

[34]Maclure and Taylor,  Secularism and Freedom of Conscience,(n 1)3.


[36]Ibid, 38-40.

[37]Brian H. Bix, (2015) Jurisprudence: Theory and Practice, 6thedn., Carolina Academic Press, 6.

[38]See Section 14 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria, Cap 23 LFN 2004

[39]The danger is, if sovereignty belongs to a divine power like what obtains in theocratic regimes, going against the government is equivalent to going against God.

[40]Moyser,Politics and Religion in a Modern World  (n 24), 6.

[41]Ibid., 7.

[42]Obafemi Awolowo, The People’s Republic  (Ibadan: Ibadan University Press, 1968) 237.

[43]Maclure and Taylor, Secularism and Freedom of Conscience  (n 1), 19.

[44]See Osmanoǧlu and Kocabaş v. Switzerland, above, note 13

[45]Metropolitan Church of Bessarabia and Others, cited above,

[46]Hasan and Chaush v. Bulgaria [2000] ECHR 511; also see Jehovah’s Witnesses of Moscow v. Russia, (Application no. 302/02)  Judgment of 10 June, 2010 (holding that the decision of the Russian courts to dissolve the applicant community and to ban its activities was unlawful)

[47]Hasan and Chaush v. Bulgaria[GC],no. 30985/96, para 62, ECHR 2000-XI, para 78

[48]Micheline Milot, Laicite dans le Nouveau Monde:Le cas du Quebec( Brepols, 2002), 34 cited in  Maclure and Taylor,  Secularism and Freedom of Conscience  (n 1),22 at 114.

[49]Darby v. Sweden,23 October 1990, opinion of the Commission, para 45, Series A no. 187


[51]Robert P. George, Conscience and its Enemies: Confronting the Dogmas of Liberal Secularism, (n 9), 130. It was emphasised as follows: ‘But the substantive matter of what religious freedom demands from those who exercise the levers of state power should be something on which reasonable people of goodwill across the religious and political spectrums should agree on-precisely because it is a matter capable of being settled by our common human reason’.

[52]Maclure and Taylor,  Secularism and Freedom of Conscience  (n 1), 14-15


[54]Ibid., 24.

[55]  Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’, (1996). 25 Ga. J. Int’l & Comp. L.289.


[57]Human rights have been described as rights which all humans hold by virtue of being human. See. R.J. Vincent, (1986) Human rights and international relation(Cambridge: New York, 3.

[58]Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948).

[59]Adopted in 1966. Entered into farce on 23 March, 1976. Ratified by Nigeria in 1993.

[60]CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

[61]Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, E.T.S. No. 5, 213 U.N.T.S. 222 .

[62]For example, articles 18 ICCPR and 8 of ACHPR.

[63]Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948).

[64]Article 1 UDHR.

[65]G.A. Res. 36155, U.N. GAOR, 36th Sess., Supp. No. 51, at 171, U.N. Doc. A/36/51 (1981).

[66]Universal Declaration of Human Rights (n 63)


[68]Preliminary Report by the Special Representative of the Commission, Mr. Andres Aguilar, ... on the Human Rights Situation in the Islamic Republic of Iran, Commission on Human Rights, U.N. ESCOR, 41st Sess., paras. 14-15, 18, U.N. Doc. EICN.4/1985/20 (1985).

[69]Hurst Hannum, (1996) ‘The Status of the Universal Declaration of Human Rights in National and International Law,’ 25 Ga. J. Int’l & Comp. L.287 at 340.


[71]See Karl Josef Partsch, (1982) ‘Freedom of Conscience and Expression, and Political Freedoms’, in The International Covenant on Civil and Political Rights, (Louis Henkin ed., Columbia Univ. Press, 211.

[72](United States v. Iran), ICJ Rep, 1980, 3

[73]. 42, para. 91

[74]Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Rep, 1986, 14, 96-97, para 181

[75]  Louis Henkin, (1990) The Age of Rights(Columbia University Press, 5.

[76]Eight states (Belorussian S.S.R., Czechoslovakia, Poland, Saudi Arabia, South Africa, Ukrainian S.S.R., U.S.S.R., and Yugoslavia) abstained in the 1948 vote on the Declaration, although some have since that time accepted the Declaration at least as a statement of principles. Iran has indicated that it does not consider itself bound by human rights provisions which conflict with Iran’s interpretation of Islamic law. See Report of the Human Rights Committee, U.N. GAOR, 37th Sess., Supp. (No. 40) at 66-72, U.N. Doc. A/37/40 (1982) (remarks of the representative of Iran). However, the highest judicial officer in Iran then, Mohammad Yazdi, publicly criticized a decision by the U.S. Supreme Court permitting the trial in the United States of persons kidnapped abroad as ‘contrary to the Universal Declaration of Human Rights.’

[77]The other components of the Universal Bill of Human Rights are the International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, 6 I.L.M. 360 (1967), the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967) and the latter's first Optional Protocol.

[78]Asoka Bandarag,, ‘Proselytism or a Global Ethic,’ https://m.huffpost.com, accessed 24 October   2017.

[79] Article 18 (2) 1CCPR.

[80]Optional Protocol to the International Covenant on Civil and Political Rights, 16th1966 (999 UNTS 171)

[81]Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, E.T.S. No. 5, 213 U.N.T.S. 222 hereinafter Referred to as ECHR.

[82]Article 9 ECHR. The scope of its application led to the margin of appreciation theory.

[83]Ozgur Heval Cinar, The Right to Conscientious Objection to Military Service and Turkey’ Obligations under International Human Rights Law(Oxford University Press, 2015) 15.

[84]African Charter on Human and Peoples’ Rights, June 27, 1981, OAU Doc. CAB/LEG/67/3/ Rev.5 (1981).

[85]ACHPR, Article 2.

[86]ACHPR, Article 8.

[87]Andreas von Staden, ‘Subsidiarity, exhaustion of domestic remedies, and the margin of appreciation in the human rights jurisprudence of African sub-regional courts’(2016) vol. 20 The International Journal of Human Rights 1113-1131.


[89]Jude Ezeanokwasa, (2011) ‘Islamic Banking, CBN, Secularity and Unity of Nigeria’ <http://www. nigeriavillagesquare.com/guest/islamic-banking-cbn-secularity-and-unity-of-nigeria.html> accessed 8 December 2017.

[90]Cinar, The Right to Conscientious Objection(n 75).

[91]Abacha v.Fawehinmi (2000) 6 NWLR, (Pt. 660) 228

[92](2016)15 NWLR (Pt 1535) 177-241.

[93]Ibid., 225.

[94]Seehttp://www.aljazeera.com/news/2017/12/nigerian-law-graduate-denied-call-bar-hijab-171216084329791.html  accessed 12 January 2018.

[95]In Nigeria Christian/Muslim Conflict, the following statements vividly illustrate the problem: ‘Southern Kaduna   is a hotbed of sporadic sectarian strife. Politics, land rights and other disputes had fuelled the violence since the 1980s. That’s when residents say Christians and Muslims started using violence to advocate for their communities. By February 2017 hundreds of people had been killed in the latest bout of unrest that began in December 2016. The state government management agency says 204 people had been killed since December 2016, but numbers were still being compiled. About 800 Christians had been killed in southern Kaduna in the two years 2015-2016.

Conflict is increasing to unprecedented levels here as more cattle herders move south, oftentimes entering farming land. Farmers accuse the Fulani herdsmen of allowing their cattle to trample and eat their crops. Fulani cattle herders accuse the farmers of killing their cattle. There are deep-rooted suspicions between Christian farmers and the Fulani Muslim herdsmen. Muslims clerics demanded the arrest of Christian leaders who they say were spreading incendiary messages to their followers.

By April 2017 the killings have stopped in the past few weeks as police, soldiers and personnel from the nearby Nigerian Air Force base monitored the area. But no one had been prosecuted in connection with the recent violence.’  https://www.globalsecurity.org/military/world/war/nigeria-1.htm  accessed 12 January 2018.

[96](n. 84) p. 220.

[97]See Smith, above note 11 p. 186

[98](n 84)

[99]In this article the words pluralism, pluralistic when used refers to a multi-cultural and multi-religious society. These words are used interchangeably.

[100](2016)15 NWLR (Pt 1535) 177-241.

[101]Per Gumel, JCA, in Abdulkareem v. Lagos State Government(n 84).

[102]Mohammed T. Ladan,   Introduction to Jurisprudence: Classical and Islamic. (Malthouse Press Ltd., 2010) 291 – 334.

[103]Constitution of the Federal Republic of Nigeria, 1999 (as amended).

[104]See generally, J.I Elaigwu, (1993) The Shadow of Religion on Nigerian Federalism: 1960-93, National Council on Intergovernmental Relations (NCIR) Monograph Series, No. 2, Abuja. New Nigerian, November 20, 1988, 3.

[105]The term public and governmental interest are used interchangeably.

[106]455 U.S. 252 (1982).

[107]The Court’s formulation was whether the limitation on religious exercise was ‘essential to accomplish an overriding governmental interest.’ 455 U.S. at 257–58.

[108]The Cyprus Case (Greece v. the United Kingdom)(1958-59) 2 Yearbook of the European Convention on Human Rights, 172-197

[109]Leyla Sahin v.Turkey (Sahin II),No. 44774/98 (Eur. Ct. H.R. Nov. 10, 2005), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en  (search by Application Number).


[111]Ibid., paras. 1, 3.

[112]Ibid., para. 70

[113]Convention for the Protection of Human Rights and Fundamental Freedoms, art. 9, 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11 which entered into force on  Sept. 21, 1970, Dec. 20, 1971, Jan. 1, 1990, and Nov. 1, 1998, respectively available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf  accessed 10 January 2018.

[114]Ibid., para. 109.


The ICC Bias Problem: Africa in the Shadows of the International Criminal Court

By Mustapha Kah, an LLM student at the University of The Gambia, and social and current affairs commentator. He is the founder of Debate Gambia Association, a fellow of President Obama’s Young African Leaders Initiative, and nominated for Youth of the Year Award organized by Gambia Radio and Television Services.


When the Rome Statute came into life, many people expressed optimism that a new world order of peace and accountability was in the making. In Africa, the International Criminal Court (ICC) was seen as a new dawn for victims of numerous human rights abuses and violations.[1]The years preceding the establishment of the court were among the most turbulent in the history of the world. In an address to the Royal Society of Literature in London in 2000, Margaret Drabble, a British novelist, described the 20thCentury as “A Beastly Century.”[2]

This article looks at the various issues confronting the court’s operations in Africa. It will examine the issues that necessitated the courts establishment including the general human rights situation; the role played by the continent in the formation of the court; the court’s focus on Africa; the issue of selective justice; the role of the Security Council in Bashir’s case; white justice and the political context of the court including reaction of the African Union (AU). Finally, I will delineate a way forward for the court’s operations in Africa.


The International Criminal Court (ICC) came on the backdrop of the Nuremberg Court,[3]which was set up to try those who had committed grave crimes during the Second World War. Calls for a permanent court to try the most callous breaches of international humanitarian law were stalled due to the Cold War. But it was in 1989 – during the 44thSession of the United Nations General Assembly – that the Caribbean Island state of Trinidad and Tobago represented the idea of the court to delegates.[4]

The distinct events in Rwanda and the former Yugoslavia once again brought the need to create an international court to the fore of the international legal plane. Acting under Chapter VII, the UN Security Council took the bold initiative to create two distinct bodies to punish those responsible for the Yugoslavia and Rwanda genocides in 1993 and 1994 respectively.[5]

Aware of the budding possibilities of a repeat of the Rwandan and Yugoslavia genocides, more sustained efforts were made to ensure that a permanent court was established. The negotiating process to create the court began as early as 1989 through the efforts of the United Nations General Assembly. The 1989 meeting instigated a process that reached climax in 1998. In that year, the international community met in Rome where the Rome Statute was adopted, creating the ICC.[6]


The Rome Statute came into force on 1st July 2002,[7]giving the ICC jurisdiction over genocide, war crimes, crimes against humanity and aggression, amongst others. It works on the universal principle of “equality of all before the law.” It can only hear cases when the alleged crimes are either committed by citizens that are from states who have signed the Rome Statute or when the crime is committed on the territory of a signatory of the ICC statute.[8]

Since it entered into force, the ICC has made modest strides in ensuring that those who have been accused of the gravest crimes are brought to justice at the international judicial plane. The fact that the court has weathered the international political storm is a remarkable achievement that requires commendation.[9]At its inception, even the Court’s President Judge Sang Hyun Song, declared when he was sworn in that the court was going to have stormy days ahead.[10]

As has already been noted, the entering into force of the Rome Statute and the subsequent establishment of the ICC marked a watershed moment for the protection of humanitarian law and human rights throughout the world. The court is mandated to investigate and prosecute various crimes against the international order.[11]

One of the most outstanding issues in the international legal plane is the controversy between African leaders and the ICC. Since the court was established in 1998, African leaders have been in constant debacle with the court, attracting a rainbow of accusations and counter accusations. This has particularly played out in the indictment of Sudan’s President, Omar Al Bashir.[12]

Jurisdiction of the Court

In the Rome Statute, Article 5 defines the jurisdiction of the court. It states that: “within the jurisdiction of the Court the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”[13]

The court also works to compliment national judicial systems, meaning that it can only hear cases when national judicial systems are either unwilling or unable to prosecute them.[14]The court has also been developed from scratch: Initially it had 5 employees, but today that number has significantly increased to about 1,100.[15]

The ICC and Africa

One of the issues that has marred the establishment of the ICC has been its controversial focus on the African continent, which has attracted intense criticism. This great rift has come to play out between the court and the leaders of the continent, especially the African Union. Many African leaders have accused the court of being a neo-colonial tool.[16]

This has also led to calls for mass withdrawals from the court by African heads of state. In October 2016, The Gambia became the third country on the continent to pull out of the court, accusing it of being “a Caucasian court.” In pronouncing the departure from the court, the then Gambian Minister of Information and Communications, Sheriff Bojang, said the country was leaving the court due to its bias stance against the continent. The Gambia was the third country to leave following the earlier withdrawal of South Africa and Burundi.[17]

The tension between the court and the African continent has been brought to bear in the statements of Benin’s President, Boni Yayi who said the court is deliberately “chasing Africa.” This negative perception of the court has more than galvanised the African leadership against the court. This show of unity among African leaders against a single issue is not common, but it reveals the perception gap on the continent against the court.[18]

As recent as 2016, the Gambian Chief Prosecutor of the court, Fatou Bensouda during an interview with BBC said that Tony Blair, former British Prime Minister who was complicit in the invasion of Iraq alongside George W. Bush could not be brought to trial because the ICC does not have full jurisdiction over crimes of aggression. In the same vein, a former UK foreign secretary, Robin Cook, was once quoted as saying that the ICC was unlikely to ever try a US President or sitting UK Prime Minister.[19]

Is the ICC biased against Africa?

This is one of the most potent arguments against the court in Africa, as already highlighted. The court has denied that it is prejudiced against leaders on the continent, saying that most of the cases it is handling are referred by African governments themselves. However, to answer this question properly, we need to take a look at the court’s actions in Africa.[20]

Dr. David Hoile in his work,‘Justice Denied: The Reality of the International Criminal Court, a 610-page study of the International Criminal Court published by the Africa Research Centre’, noted that since the court was established, it has received over “9,000 formal complaints,” which alleged war crimes in 139 countries. Unfortunately, as a sign of its partiality, “the ICC has chosen to indict 36 black Africans in eight African countries. In so doing the ICC has ignored all European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states.”[21]

Due to its persistent biased activities on the continent, the ICC has derailed peace processes in countries like Uganda and Sudan. Hoile further noted: “While the ICC’s key first two cases were African ‘self-referrals’ it is now clear that the African governments were made ‘an offer they could not refuse’: refer yourself and we will only indict your rebels–if not we will indict both government and rebels.”[22]

The court has been accused of vindictiveness, partiality and selectivity, while in Colombia and other South American nations, it has been adopting a soft approach. The same cannot be said of Africa. So far, as already noted, all the indictees have been Africans. Due to the callous nature of the Syrian conflict, one will be forced to wonder why former Libyan leader, Muhammad Gadaffi, was indicted while to this day, President al-Assad of Syria and the al-Khalifa regime in Bahrain have not been indicted despite committing far greater crimes than Gadaffi.[23]

The efficiency of the Office of the Prosecutor has come under severe criticism for the way it has carried out certain tasks. In Ivory Coast, “a perceived bias in prosecutions, a lack of impartial information and frustrations regarding access to its proceedings threaten to undermine the credibility of the court.”[24]

The ICC has often claimed that its cases are referred by African governments. How true is this? Precedent has shown that the court inflicted considerable pressure on African leaders to refer their cases to the court. Out of over 500 cases that were analysed by the court, the then prosecutor, Moreno Ocampo Jerry, picked DR. Congo. Independent investigations by the US Congressional Research Service noted the considerable pressure the court brought to bear on African leaders to refer their cases.[25]

In addition, Human Rights Watch made similar observations that “the Office of the Prosecutor actively sought the referrals in the DRC and Uganda.”[26]Interestingly, despite earlier denying that African leaders were forced to refer their cases to the ICC, Ocampo on 17 July 2008, admitted that he had invited Uganda and DR Congo to refer their situations to the ICC.

In countries like Uganda, the court has been accused of investigating the Lord Resistance Army, while ignoring the crimes committed by the Government of Yuweri Musevinni. The same was observed in Ivory Coast, where the former President Gbagbo, was handed over to the court. But allies of the current President Alasan Ouattra, who have been accused of similar crimes, have not yet been handed to the court. What is clear in many of its cases in Africa is that the court provides the perfect opportunity for governments to get rid of their longstanding political opponents.[27]

In many countries, the court has been caught up in the intricate web of national politics. This is the reality in Kenya. The ICC investigations in Kenya followed the breakout of elections violence in December 2007. The elections were thought to have been rigged by then President, Mwai Kibaki.[28]

In protest against the alleged election rigging, ethnic groups who supported Raila Odinga, the main opposition leader, staged protests. The resulting violence reportedly claimed approximately 1,333 lives, and displaced 700,000 people. Investigations conducted by a group of eminent African scholars, led by the former Secretary-General of the United Nations, Kofi Annan, found out that senior government officials such as William Ruto, Joshua Sang, Francis Muthaura and Uhuru Kenyatta were responsible for inciting the violence.[29]

The office of the prosecution has since issued indictments[30]against the four men, and despite initially promising to support the ICC in its investigations, the Kenyan government reneged. Consequently, on 31stMarch 2011, the Kenyan government challenged the admissibility of the cases before the court pursuant to Article 19 of the Rome Statute, requesting that two of the cases be declared inadmissible.[31]

The Kenyan government also argued that legal reforms undertaken by the country would allow it to prosecute alleged perpetrators of the post-election violence. On 30 May 2011, the Pre Trial Chamber 2 of the ICC rejected the challenges to the admissibility of the two cases. On 11thMarch 2013, the prosecution announced the withdrawal of all charges against Francis Muthaura due to a lack of evidence.[32]The ICC has withdrawn the cases against Kenyatta and Ruto.[33]

The Case against Al Bashir

The ICC’s indictment against Sudanese President, Omar Al Bashir, has been one of the most controversial issues surrounding the court. Al Bashir was the first sitting President to be indicted by the ICC. Sudan was not a signatory to the Rome Statute and his case was referred to the ICC by the UN Security Council in 2005. [34]Bashir and his henchmen were alleged to have committed war crimes, crimes against humanity and genocide through a militia force which came to be called the Janjaweed. More than a million people in Darfur were displaced out of a population of six million. As expected, Bashir denied any role in the crimes committed in Darfur.[35]The ICC intervention in the Sudanese Region came after it was reported that 5,000 people died every month, 35,000 were killed by attacks, whilst another 300,000 became refugees fleeing from starvation. Overall, a total of 400,000 people died in the conflict.[36]

It should be noted that Sudan is not a signatory to the ICC statute and this is why the case was referred to the court by the UN Security Council. After the referral, Ocampo opened up investigations to determine the credence of the case under the ICC Statute. In 2008, an international arrest warrant was issued against President Bashir. As commander-in-chief, the Sudanese was alleged to have direct control of the Janjaweed militia. However, the arrest warrant for Bashir has sparked controversy all over the continent.[37]

The African Union has condemned the indictment of African Presidents, including President Bashir. In a statement, the continental body noted: “The abuse and misuse of indictments against African leaders have a destabilising effect that will negatively impact on political, social and economic development of member states and their ability to conduct international relations…”[38]

By the time the court indicted Kenya’s President, Uhuru Kenyatta, for inciting ethnic violence after losing parliamentary elections in 2007, the African Union was thoroughly convinced that they had to take a common stance against the court, agreeing that they will not extradite any serving head of state to The Hague.[39]

The indictment of Bashir and Kenyatta has further led the AU to accuse the court of ignoring international law. The AU said that by indicting sitting heads of state, the ICC is ignoring immunity[40]guaranteed to African leaders from prosecution. These indictments are further making it difficult if not impossible for African leaders to perform functions associated with their offices. The former Ethiopian Foreign Affairs Minister Tedros Adhanom Ghebreyesus said the indictments were as simple as violating the sovereignty of African countries.[41]

The AU has taken a noncooperation stance with the ICC.  In a communique, the AU revealed that it will not collaborate with the ICC. The ICC has requested some members of the body to arrest the Sudanese President, but it has failed to comply so far. The Arab League has also refused to recognise the international arrest warrant against Bashir. In addition, the two regional bodies have urged the court to suspend the indictment against the Sudanese President to allow the peace process in the country a fair chance.[42]In 2017, South Africa revealed its intention to pull out of the Rome Statute, following a clash with the court on the arrest of Al Bashir in 2015. Bashir was attending the African Union summit in Johannesburg when the ICC requested his arrest, but South Africa refused to arrest him and subsequently announced that it intended to leave the court.[43]

Enforcement Problem

The enforcement problem is another issue African leaders have had with the ICC. The ICC does not have a police force to enforce its arrest warrants. Due to this, it must rely on state parties to enforce arrest warrants. This has not seemed effective so far – especially in the case of Bashir and Kenyatta. According to Courtney Griffiths, lead defence counsel for ex-President of Liberia, Charles Taylor, one of the most visible challenges facing the ICC is the “absence of the machinery to enforce its writ.” [44]In an article published on the New African Magazine, he noted that lacking its own enforcement mechanism, international tribunals have had to rely on the good will of cooperating states to “execute arrest warrants and bring fugitives to justice.”[45]He however warned that this comes with a plethora of problems: When state parties refuse to indict the indictees, no one will.

In an effort to bridge the big gap in the writ enforcement mechanism of the ICC, the former Chief-Prosecutor of the Court Moreno Ocampo suggested that “special forces” composed of the “coalition of the willing” led by the US should be used to enforce international arrest warrants.[46]Unsurprisingly, given the aggressive military nature of American foreign policy over the past few years – including the invasion of Iraq and Afghanistan – this suggestion has been criticised by many international legal experts.

Following this comment, Courtney Griffiths asked: “what will it mean for justice and the rule of law if international criminal tribunals, now primarily the ICC, come to depend on a military alliance led by the US with its own military agenda and interests... especially when the US declares itself to be above the very law it is being asked to enforce?”[47] 

Security Council Indictments

The fact that the Rome Statute has empowered the UN Security Council to refer cases to the court has not gone down well with many African leaders, because it makes non-signatories to come under the jurisdiction of the court possible. This is a great violation of the principle of consent in treaty law, which – according to some legal analysts – has attained the status of customary international law.[48]

The powers of referral by the Security Council has raised further questions of the possibility of super-powers using it as a conduit to further their own political ends in sight.[49]Super-powers like the US have already shown a disliking for the court, opposing it from its birth. President Clinton under whose administration the ICC came into force, faced severe opposition from the American Congress to ratify the Statute.[50]The court encountered even more opposition during the reign of President George W. Bush. President Bush passed the American Service Members Protection Act of 2002, which later came to be called the “Hague Invasion Act”, because of its hostility to the ICC.[51]The law was so strident in its antagonism to the ICC that it threatened to sanction any American lawyer who worked on a case in the ICC involving an American citizen. More worrying than this is the fact that it gave US troops the power to invade The Hague and free any American citizen being tried by the court.

In furtherance of his anti-ICC sentiments, Bush signed bilateral immunity agreements with many ICC members. These agreements forbid countries from handing over American citizens to the court. It went to the extent of threatening countries who refused to sign with reduction in their aid. The new African Magazine reports that despite the fact that 53 countries had refused to sign the agreement, countries that feared reduction in US aid had to chicken out and sign the agreement.[52]

Super-power opposition to the ICC has come from other global powers. Many powers have refused to ratify the Rome Statute. By March 2012, China, India, Japan, Russia had refused to be party to the Rome Statute. This puts 70% of the world’s population outside the Court’s jurisdiction.[53]

According to American commentator, John Rosenthal, “Seven of the ratifiers taken together – San Marino, Nauru, Andorra, Liechtenstein, Dominica, Antigua and Barbuda, and the Marshall Islands – have a population of roughly 347,000, which is less than the population of New York’s smallest borough of Staten Island.”[54]


From this writing so far, it is clear that the ICC has been in turbulent waters since its inception. To some extent, claims that the court is focusing on the African continent may not be without merit. There is substantial evidence that the court has indeed been fishing most if not all its cases from the African continent.[55]

Is this as a result of bias? Firstly, much of the criticism against the court by African leaders stems from their efforts to deflect their own shortcomings and complicity in the grave human rights breaches on the African continent. The ordinary people of Africa have for long suffered in the hands of many of our leaders since the independence days. Wars in places like Rwanda, Burundi, Congo, the Central African Republic, Sierra Leone, Liberia, Sudan and Chad amongst others have led to millions of deaths. The African leaders seem to be at best unable or unwilling to help their own people find the course of justice.  In some of the situations where the court has intervened, it is undeniable that the absence of viable alternative justice systems has made it possible. A cursory look at the justice system on the continent reveals a total lack of effective institutions to deal with the disdainful human rights situations in many parts of the African continent.[56]

The African Human Rights Court and the Court of Justice, which have been proposed as viable solutions to the ICC, have so far been pipedreams. Even among the leaders of the continent who proposed its formulation, many of their states have not ratified the change. Besides, it is not seen how these African leaders who are not answerable to their own domestic jurisdictions will be answerable to any legal mechanism at the continental level. Such reticence on justice in the continent among African leaders only makes the essence of the ICC more cogent.[57]

Enshrining the principles of good governance and democracy in the daily lives of Africans must be a rule-of-thumb. It is heartbreaking that the African continent, which is the richest, continues to be the wretched of the earth. The majority of our people live like paupers while our resources benefit outsiders. We must empower our people to use their ingenuity to enhance Africa’s progress. Until then, the reasons that make the ICC pry its eyes on Africa will endure unobstructed.[58]

Finally, Africans and their leadership must be willing and ready to find their rightful voice in global affairs. It is sad that we are always ready to pen signatures to any international treaties just to appear virtuous to the transnational municipal of states, without really looking into the real issues behind the treaties. Also, the web of control against Africans must be put to the past. For example, even after leaving the ICC, the leaders could still be prosecuted through the Security Council. The Council is not only predisposed in its composition; it is also likely to continue being used as a device of subjugation against Africans who have no voice in it.[59]


[1]“Africa-Watch-Report-Writers-and-Human-Rights-Abuses-in-Africa-Nov-1991-14-Pp” Human Rights Documents online

[2]Margaret Drabble, “A Beastly Century,” American Scholar 70, no. 1 (Winter 2001): 160

[3] Sedgwick JB, “5.Brother, Black Sheep, or Bastard? Situating the Tokyo War Crimes Trial in the Nuremberg Legacy 1946–1948” [2009] The Nuremberg War Crimes Trial and its Policy Consequences Today 62


[5]Schabas WA, “The UN International Criminal Tribunals”

[6]Clark RS, “Article 123. Review of the Statute” [2016] The Rome Statute of the International Criminal Court 2309

[7]Duffy H and Huston J, “Implementation Of The Icc Statute: International Obligations And Constitutional Considerations” [2000] The Rome Statute and Domestic Legal Orders 62

[8]Schmidt TM, “2.1. Preliminary Remarks: Interpreting the Rome Statute” [2015] Crimes of Business in International Law 34


[10]“Justice in Conflict | On the Challenges of Pursuing Justice” <https://www.bing.com/cr?IG=DA9AA88BEA564AAA808FB50B073EABD3&CID=

[11]Pisani B, “The Rome Statute and Domestic Proceedings for Ordinary Crimes: The (In)Admissibility of Cases before the International Criminal Court” The Diversification and Fragmentation of International Criminal Law 461

[12]3BA7A2C6D2796B353DE4A90FD3D66A36&rd=1&h=IgH7AQuSDg5HyjaApmezt03i_JsSVY9NC9W7N3huwyA&v=1&r=https://justiceinconflict.org/&p=DevEx.LB.1,5530.1> accessed April 6, 2018



[15]Werle G and Vormbaum M, “Creating an African Criminal Court” [2016] International Criminal Justice Series The African Criminal Court 3

[16]Naldi G and Magliveras KD, “The International Criminal Court and the African Union” [2017] Oxford Scholarship Online  

[17]Ssenyonjo M, “State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa, Burundi and the Gambia” [2017] Criminal Law Forum


[19]“Interview with Mrs Fatou Bensouda, the Deputy Prosecutor of the International Criminal Court (ICC)” (2011) 11 Studies in Ethnicity and Nationalism 149  

[20]Onoma AK, “An Epochal Bifurcation: The International Criminal Court, the African Court and the Struggle against Gross Human Rights Abuses” (2016) 2 African Journal of International Criminal Justice

[21]Hoile D, Justice Denied: the Reality of the International Criminal Court(The Africa Research Centre 2014)


[23]Novak A, “The Rome Statute International Criminal Court Rome Statute of the International Criminal Court” [2015] The International Criminal Court 23

[24]Schiff BN, “Building the International Criminal Court” Building the International Criminal Court

[25]Guariglia F, “The Selection Of Cases By The Office Of The Prosecutor Of The International Criminal Court” The Emerging Practice of the International Criminal Court 209

[26](The International Criminal Court and the Politicisation of Human Rights - PAPERS - Humanrights) <http://www.chinahumanrights.org/html/2014/PAPERS_1027/946_15.html> accessed April 8, 2018


[28]Ajulu R, “Kenya’s 2007 Elections: Derailing Democracy Through Ethno-Regional Violence” (2008) 7 Journal of African elections 33

[29]Kimani M, “Pursuit of Justice or Western Plot?” (2009) 23 Africa Renewal 12


[32]“Africa and the ICC: Mending Fences - Issuu.com” <https://www.bing.com/cr?IG=07F5A8945AC046A28D990E430458C83F&CID=20B82FE698B46D0B1ADE242D991B6CD3&rd=1&h=q-MCSx-irLymd98kyN6BjxPGkpNpRXOitysuQsyH0Yw&v=1&r=https://issuu.com/avocatssansfrontieres/docs/asf_ug_africa_and_the_icc_new/13&p=DevEx,5101.1> accessed April 8, 2018

[33]“Background” (International Justice Monitor) <https://www.ijmonitor.org/kenya-cases-background/> accessed April 8, 2018

[34]“Icc-Issues-Arrest-Warrant-for-Sudanese-President-Al-Bashir-Mar-4-2009-2pp” Human Rights Documents online

[35]“Darfur in the Shadows | The Sudanese ... - Human Rights Watch” <https://www.bing.com/cr?IG=A698213580FE4CAD90DCC8BE63EDCC2A&CID=0268427F9FE561E01FEE49B49E4A60FA&rd=1&h=Hyk3a6u-V5KFHgw-ifNVGQdHpT_mWaPywsmszbiCxtI&v=1&r=https://www.hrw.org/report/2011/06/05/darfur-shadows/sudanese-governments-ongoing-attacks-civilians-and-human-rights&p=DevEx,5070.1> accessed April 8, 2018


[37]“Icc-Issues-Arrest-Warrant-for-Sudanese-President-Al-Bashir-Mar-4-2009-2pp” Human Rights Documents online

[38](The International Criminal Court and the Politicisation of Human Rights - PAPERS - Humanrights) <http://www.chinahumanrights.org/html/2014/PAPERS_1027/946_15.html> accessed April 8, 2018

[39]Jalloh CC, “The African Union, the Security Council, and the International Criminal Court” [2017] Oxford Scholarship Online

[40]It should be noted that under the Rome Statute, immunity does not preclude one from being held liable for crimes under the court. In Article 27(2) it is stated that “immunity or procedural rules under national legal systems would not immunize him from criminal responsibility under the Rome Statute.




[44]“Charles Taylor and Liberia: Ambition and Atrocity in Africas Lone Star State” (2012) 49 Choice Reviews Online

[45]In an article on New African Magazinein March 2012 entitled the Politics of International Criminal Law, Courtney Griffiths also bemoaned the fact that executing arrest warrants have been more precarious during conflicts and civil wars where the machinery of states are weaker and more vulnerable.

[46]See above.




[50]“ICC, A Tool To Decolonize Africa” (1st March 2012) New Africa Magazine Article available at: http://www.newafricanmagazine.com/special-reports/sector-reports/icc-vs-africa/icc-a-tool-to-recolonise-africa


[53]  “Jurisdiction, Admissibility and Applicable Law” Rome Statute of the International Criminal Court : A Commentary


[55]Cryer R, “The International Criminal Court And Its Relationship To Non-Party States” The Emerging Practice of the International Criminal Court 115

[56]Park AS, “Consolidating Peace: Rule of Law Institutions and Local Justice Practices in Sierra Leone” (2008) 24 South African Journal on Human Rights 536

[57]Asukwo O, “Justice: Its Essence in Human Affairs” (2007) 7 Sophia: An African Journal of Philosophy



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