The purpose of this piece is not to evaluate the depth of injustice that has been done to the famous Political activist and Radio Biafra leader, Nnamdi Kanu by the State Security Service (SSS) in the past years or even during the course of his hearing in Nigeria. The SSS continuously disobey a standing court order to release him on bail. Instead, this piece bothers on the extent of compliance the ECOWAS court judgement would receive from the Federal Government in the event that Kanu gets a verdict in his favour.
The ECOWAS court is the judicial arm of the Economic Community of West African States (ECOWAS) which covers the international community on the West African Regional scene. The ECOWAS court inter alia has jurisdiction by virtue of Article 9(2) of the Community Court of Justice Protocol to hear matters which happens within the territory of member states and relates to human rights or within the confines of the African Charter on Human and People’s Rights. Thus signatory states and individuals living in party states can institute actions against their governments if their human rights are breached.
When the alarming rate of corruption in the judiciary is considered, the justification for the recent attempts by financially capable individuals to ensure that any interference of rights is vindicated by the ECOWAS court would be understood. Nnamdi Kanu decided to seek justice from the ECOWAS court, after he had made various unsuccessful attempts to enforce his constitutional right of bail from the SSS since his arrest on October 14, 2015 by the Federal Government. He is praying the court to declare that his continued detention is a violation of the African charter on Human and People’s Right, the Universal Declaration of Human Rights and the United Nations Charter of 1970.
The first step is to understand the nature and scope of International Law. The operation of the law on the international scene is absolutely distinct from what is obtainable at the national sphere. One of the most striking principles of International Law is the principle of ‘State Sovereignty’ which states in summary that a state has the exclusive right to govern and control its defined territory or citizens to the exclusion of other states, although with the existence of some exceptions.
Another general principle of International Law is that a state cannot be bound by any law except such state expresses its consent to be bound either directly or indirectly, save in instances where such law in question is a Jus cogens ( i.e. laws of universal application) which requires no consent. It is also important to state that principles of international law, most times do not automatically apply to the local affairs of sates as municipal laws do.
The two major systems through which a state could adopt International Law into its national sphere are; the Transformation or Incorporation method. The transformation principle states that International Laws and policies directly apply to the local affairs so long as such law is not inconsistent with any existing National Law. Whereas the incorporation principle states that until a form of domestication is carried out by the national legislature, International Law does not apply in such a state. The most effective mean of discovering which system a state practices is to check through such states constitutional provisions, laws, policies or court’s judgments. For example in relation to treaty laws, Nigeria practices the Incorporation system.
Sadly, one of the major problems of International Law is the principle of State Sovereignty. The operation of this principle makes it hard or impossible for erring states to be punished or sanctioned for international wrongs. This has caused a lot of critics to question the need for International Law. Hence, International Law can be described as “a fierce but toothless dog”, because of the ineffective enforcement capacity of states and international bodies to melt out punishments on erring states.
When the crux of the above analysis is brought within the purview of the on-going trial at the ECOWAS court, the following deductions would naturally suffice in the mind of a reasonable man.
Firstly, the provision of the African Charter is binding on Nigeria, because it has been duly ratified in line with Section12 of the Constitution of the Federal Republic of Nigeria 1999 (as amended.) Similarly, the question of whether the court has jurisdiction is out of contention because Nigeria is a signatory to the ECOWAS Treaty.
Secondly, if the trial ends in Nnamdi’s favour then, the Nigerian Government would be under an international obligation to release him and unfreeze his assets and properties in the country. The government putting in mind that it is a trite principle of International law that a state cannot plead its municipal obligation as an excuse for evading a co-existing international obligation.
Thirdly, Nnamdi Kanu would be acting smartly if he in addition to seeking for damages request for the intervention of the Authority of the Head of States to apply heavy and stiff sanctions against the Nigeria Government as provided for in Article 77 of the ECOWAS Treaty in the event that the government fails to comply with the decision of the court, as it is more prone to do judging from its past disrespect for the court’s decisions. The most appropriate past example being the Government’s stark noncompliance in the case of retired Colonel Sambo Dasuki.
Col. Dasuki had approached the court in suit no ECW/CCJ/APP/01/16 seeking, amongst other things, a declaration that his continued detention in defiance of orders by courts of competent jurisdiction in Nigeria is an unlawful violation of his fundamental human rights, and the court subsequently ordered the Federal Republic of Nigeria to immediately release Dasuki from detention and pay a sum of N15 million naira in damages for the violation of his human rights. Sadly up till date the Nigerian government have failed to compensate Dasuki or effect his release in line with the courts judgement.
Lastly, the fact that politics has successfully eaten deep into the international realm has resulted into the existence of international politics rather than international law. The ECOWAS is not an exception. Nigeria is one of the major backbone states of the ECOWAS, it would be almost impossible to enforce sanctions against Nigeria, where there is a breach of her obligation to the community. Consequently the best option might not even be to call on the “Authority of the Heads of States” but rather to call for the intervention of bigger dogs such as the United Nations (UN.)
In conclusion, it is my opinion that the word “justice” is a very relative word, which connotes various meaning and serves diverse purposes under different circumstances. Consequently justice for Nnamdi Kanu at the ECOWAS court might not actually amount to his eventual release by the federal government, but it would on the long run bring the ill acts of the Nigerian Government once again into limelight and just maybe attract concrete and positive international intervention.