Nigeria is a signatory to the African Charter on Human and Peoples Rights which came into force on 21st October, 1986. Nigeria is a dualist country. For any international instrument to be applicable in Nigeria, same must be domesticated by the National Assembly in accordance with the constitution.188 And where domesticated, same will have the force of law, subject to the Constitution, and will rank at par with other laws made by the National Assembly. Where there is however a conflict between a domesticated international treaty and any other law made by the National Assembly, the domesticated treaty will take precedence.189 In this wise, the African Charter has been domesticated by the National Assembly as “The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.”190 The Supreme Court held in Abacha v Fawehinmi that ‘…the African Charter which is incorporated into our municipal law becomes binding and our courts must give effect to it like all other laws falling within the judicial powers of the courts’.191 The Charter is extensive in its provision of rights, but suffice it to state here that all the fundamental rights guaranteed by the Nigerian Constitution are also protected under the Charter. Of particular note is the presumption of innocence until proven guilty by a competent court or tribunal, under the right to have one’s cause heard192 which is also guaranteed by the Nigerian Constitution.193 The Constitution provides that “every person who is charged with a criminal offence shall be presumed to be innocent until he is proven guilty.”194 This means that in so far as the courts have not pronounced such a person guilty, the presumption of innocence avails
188 Sec 12 (1) CFRN 1999, as in note 7 above
189 [T[he African Charter on Human and Peoples’ Rights (Notification and Enforcement Act, Cap 10 Laws of the Federation of Nigeria, 1990) is a statute with international flavor. Therefore, if there is a conflict between it and another statute, its provisions will prevail over those of that other status for the reason that it is presumed that the legislature does not intend to breach an international obligation. Thus it possesses a greater vigor and strength than any other domestic statute… per Mohammed, JSC, in Fawehinmi v Abacha, supra, p. 251
190 Cap A9 LFN 2004
191 Abacha v Fawehinmi, supra
192 Article 7 (1) (b) Charter on Human and Peoples Rights
193 Section 36 (5) CFRN 1999, as in note 7 above
194 Section 36 (5) CFRN 1999, as in note 7 above
him all through the trial. And the burden of proving that the said person committed the alleged offence rests with the prosecutor.
The right to have one’s cause heard includes taking a suspect to appear before a competent court and not a mob court. The Constitution provides that “whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.”195 Attributes of the right to fair hearing was listed by the Constitution in Section 36 (6). It states that
Every person who is charged with a criminal offence shall be entitled to -
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.196
The mob in Akinnifesi Olumide Olubunmi’s didn’t afford him fair hearing. He was not taken before any proper court of law; he was adjudged by the mob. The mob that tried him didn’t afford him the Constitutional presumption of innocence, no legal practitioner represented him and he wasn’t allowed the opportunity to cross-examine his traducers. He was simply presumed guilty, denied fair hearing, and murdered him without anybody being held responsible for it.
The African Court of Human and Peoples’ Rights was established in 2004, located in Tanzania with jurisdiction to hear and determine cases arising under the African Charter. Not much has been
195 Sec. 36 (4) CFRN 1999, as in note 7 above
196 Section 36 (6) CFRN 1999, as in note 7 above
going on there since its establishment as there is lack of reported cases on human rights breaches from the court. That notwithstanding, a little voyage into the European Court of Human Rights would shed light on how articles from the African Charter, in similar circumstances were decided.
The reason for this is because the African Charter was modelled after the European Convention on Human Rights.197 The Convention in Article 8 protects the rights of individuals to respect for their private and family life, stipulating that the exercise of such right shall not be interfered with by a public authority except in accordance with the law. And such interference where it is allowed must be necessary in a democratic society for national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.198 This right to privacy has been interpreted by the European Court of Human Rights in several cases to include the right against the intrusion of criminal laws into the realms of private morality as exemplified in sodomy offences.199 In Norris v Ireland,200 the applicant complained that the criminalisation of homosexuality in Ireland was an interference with his right to respect for private and family life guaranteed him under Article 8 of the Convention. He had previously challenged the criminalisation up to the Supreme Court of Ireland and lost. The European Court of Human Rights held that the said criminalisation breached Article 8 of the Convention. According to the court, there was no pressing social need to criminalise homosexual acts, stressing that although it might be offensive to the members of the public who regard homosexuality as immoral, but that this could not on its own warrant the application of penal sanctions when consenting adults alone were involved.201 Same decision was reached by the court in Modinos v Cyprus202 wherein the court held that the Cyprus legislation criminalising homosexual acts violated Article 8 of the Convention. In A.D.T v The United Kingdom,203 the applicant argued that his prosecution and conviction for participating in homosexual acts in the privacy of his home with more than one consenting adult constituted an interference with his right to respect for his private life. The court
197 Hereinafter referred to as “the Convention”
198 Article 8, European Convention on Human Rights
199 Dudgeon v United Kingdom, supra
200 Norris v Ireland [1988] 10581/83, available online from http://hudoc.echr.coe.int/eng?i=001-57547, accessed on 24.04.2016 at 16:12
201 Norris v Ireland, supra
202 [1993] Application No. 15070/89, available online from http://hudoc.echr.coe.int/eng?i=001-57834, accessed on 24.04.2016 at 16:18
203 [2000] Application No. 35765/97, available online from http://hudoc.echr.coe.int/eng-press?i=003-68197-68665, accessed on 24.04.2016 at 16:25
held that the United Kingdom had breached Article 8 of the Convention and that the criminalisation and conviction constituted an interference with the right of the applicant to private life, stressing that there was no social need justifying the legislation in question or its application against the applicant in the proceedings.204
Even where homosexuality is not outlawed or where they have been decriminalised, situations may arise where certain laws may be framed in such a way that they would be discriminatory against homosexual persons or conducts. In such a case, the right to non-discrimination guaranteed by Article 14 of the convention is deemed to be violated by such provisions. Article 14 of the convention provides that
The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.205
In L. and V. v Austria and S. L v Austria,206 the applicants were convicted of having homosexual intercourse with young males of between 14 to 18 years contrary to Austrian law which criminalised homosexual acts with young males of 14 to 18 years. Consensual sexual relations with a person of the opposite sex who is within the above age bracket is not an offence. The court held that the said legislation breached Article 14 of the Convention on right to non-discrimination as well as Article 8 on right to private life stating that there was no sufficient justification for the difference in treatment in relation to heterosexual and homosexual intercourse with persons within the stated age bracket. In B. B v United Kingdom,207 the applicant was prosecuted for having homosexual intercourse with a young male of 16 years. At the material time when the alleged conduct took place, it was criminal for anyone to engage in a homosexual intercourse with a male who is below 18 years regardless of consent. This was applicable while the age of consent for
204 A.D.T v The United Kingdom, supra
205 Article 14 European Convention on Human Rights
206 [2003] Application Nos. 39392/98, 39829/98, and 45330/99, available online from http://hudoc.echr.coe.int/eng-press?i=003-673810-681021#{%22itemid%22:[%22003-673810-681021%22]}, accessed on 24.04.2016 at 20:53
207 [2004] Application No. 53760/00, available online from http://hudoc.echr.coe.int/eng?i=001-61627, accessed on 24.04.2016 at 21:15
heterosexual intercourse was pegged at 16 years, thereby seeming discriminatory against homosexual relations. The court held that the said legislation violated both article 14 on right to non-discrimination and article 8 on right to private life guaranteed to all persons by the European Convention.
Going by the above rulings of the European Court of Human Rights, one could presume that when faced with similar cases that the African Court of Human and Peoples’ Rights may toe the same part. The reason for this is not far-fetched as the African Charter was modelled after the European Convention, and both have almost similar provisions and fundamental rights guarantees. The rulings by the European Court of Human Rights prompted the respective Member States to amend their laws so as to bring them in conformity with the Convention and safeguard the fundamental rights of their citizens. The rulings of the court are not binding on Nigeria as Nigeria is not a signatory to the Convention. However, Nigeria could learn a few things from the European nations and actually borrow a leaf from her former colonial master, the United Kingdom, who exported the anti-sodomy laws to Nigeria and other commonwealth nations. The United Kingdom that was the originator and chief proponent of the anti-sodomy laws no longer have such legislations in her books as such laws were anachronistic and a relic of the dark ages. The United Kingdom have even gone ahead to legalise same-sex marriages.