|Muhammed Tawfiq Ladan Aug 8|
Domestication of a treaty or international agreement is a process of incorporating or transforming the provisions of a (signed and ratified) treaty into the domestic law of a given country, thereby given it the needed force of law in the national legal system, including enforceability of its provisions by domestic courts.
The domestication of treaties should be viewed against the background of the principle found in most legal systems that the status of international law or treaties in national legal systems is determined by national constitution/law and not by international law itself.
In Nigeria, the trend of case law suggest two things: – that an undomesticated treaty (though ratified) has no force of law whatsoever in Nigeria, by virtue of section 12(1) of the 1999 constitution, as amended; and that a domesticated treaty in accordance with section 12(1) of the constitution does not operate in Nigeria by the force of international law but by virtue of the statute enacted by the legislature (National Assembly) to implement it. (see the Supreme Court decisions in Abacha v. Fawehinmi (2000) FWLR (pt.4) 553 at 586, per Ogundare, Jsc; and in the case of Attorney General of Federation v. AG of Abia State and Ors (2002)FWLR(pt. 102) P.1 at 92-93).
However, the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010/ came into force in 2011, appears to have made ratified but undomesticated labour related treaties Justiciable in Nigeria without any legislative intervention by means of an implementing national legislation of such treaties (See section 6(2) and section 254(c) of the Act). Subsection (2) of the said section 254(c) introduced monist doctrine of automatic application of ratified treaties thereby excluding application of both Section 12(1) of the Constitution and the Judicial authority in the case of Abacha v. Fawehinmi as far as labour treaties are concerned in Nigeria.
It is worth noting that international trade agreements/treaties like the AfCFTA are, as a rule of international law, not Self-executing. State Parties to such treaties must ensure that the required domestic legal arrangements are in place in order to give effect to their obligations. They cannot invoke their national law or their own constitution to escape from their international obligations (See Article 27 of the Vienna Convention on the Law of Treaties).
There are four (4) basic methods of national implementation of a treaty in international practice:-
Domestication of treaties in Nigeria is primarily a constitutional requirement by virtue of section 12(1) of the 1999 constitution, as amended. It is also a statutory /legislative requirement by virtue of section 3(1)(a) and 3(2)(a) as well as 3(3) of the Treaties (Marking Procedure etc.) Act, Cap.T20, Laws of the Federation of Nigeria (LFN) 2004.
The Nigerian Constitution gives the federal government exclusive Jurisdiction over 68 items on the Exclusive Legislative List of the 2nd Schedule to the Constitution, including matters relating to Foreign Affairs (see item 26); implementation of treaties(item 31), Trade and Commerce between Nigeria and other countries (see item62); Customs and Excise Duties (see item 16); Trade representation, etc(see item 20); Export Duties(see item 25); Maritime and Shipping (item 36); Copyright (item 13); Patents, Trade Marks, Trade or Business Names, Industrial Designs and Merchandise Marks(item 43). In its description of Nigeria’s Foreign Policy Objectives, section 19(d) of the Constitution refers to “respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication”.
The National Policy on Justice, 2017, adopted by the Federal Executive Council in November 2019, equally refers to Nigeria’s commitment to compliance with her Treaty obligations consistent with the constitutional responsibilities pointed out earlier(see NPJ thematic issue 17 @ pp. 67 to 68).
The Nigerian Constitution makes no specific treaty making procedure/power, but reserves to the Legislature/National Assembly the exclusive power to domesticate treaties relating to matters on the Exclusive Legislative List, including the power to make laws on matters not included in the Exclusive List for the purpose of implementing a treaty (Section 12(1) & (2)).
NB: – Constitutionally therefore, the Executive’s power to make treaties (negotiation, conclusion/ signing and ratification) is implied, having the responsibility of promoting Nigeria’s foreign policy objectives, initiating and concluding trade and commerce agreement on behalf of the Federation and people of Nigeria, as statutorily empowered by section 1(2) of the Treaties (Making Procedure , Etc.) Act.
Hence in practice , since independence, while the acts of Negotiation, Conclusion and Ratification of Treaties are undeniably a cluster of Executive functions, the primary and exclusive role of the Legislature / National Assembly lies in domestication of treaties (already ratified by the executive) in order to give it the force of law for domestic implementation. This is so because, NEITHER the Constitution NOR the Treaties (Making Procedure) Act ASSIGNS ANY ROLE to the National Assembly in respect of treaty-making in Nigeria. Cumulatively, the power to make and domesticate treaties in Nigeria is a prerogative of the Federal Government. This was the position of the Supreme Court of Nigeria, per Ogundare, Jsc, in the case of Attorney General of Federation v. AG of Abia and others, where the Court held that: –
“In the exercise of its sovereignty, Nigeria from time to time enters into treaties, both bilateral and multilateral. The conduct of external affairs is on the exclusive legislative list. The power to conduct such affairs is therefore, in the Government of the Federation to the exclusion of any other political component unit in the Federation.” ((2002) FWLR pt.102,1 at 92-93). Further, under Article 1(a) of the Vienna Law of Treaties, only central governments have the capacity to validly conclude treaties on behalf of sovereign states.
Table 1: – Methods Adopted by Nigeria in Practice.
While Figure 1 and Table 1 above reveal the methods of domestication of treaties in both international and Nigerian practices, tables 2-4 below show the applicable legal instruments on treaty making and domestication and selected domesticated treaties relating to trade, economic integration, human rights and humanitarian law, petroleum, taxation an maritime crimes, amongst others, in Nigeria.
Table 2: -Legal Instruments on Treaties Making Procedure and Domestication in Nigeria
Table 3:- Selected Domesticated Treaties In Nigeria
· Usually, the obligation to perform a treaty is intrinsic to its ratification / accession by the state and therefore is not expressly stipulated. The Vienna convention on the law of treaties simply states that a treaty must be performed in good faith by the states which are parties to it. Indeed, a state in good faith does want that the treaty to which it has become a party, is given full effect.
· It is the normal duty of the states which are parties to a treaty to take every necessary step to ensure that provisions of the letter are given full effect.
· Out of a total of 23 International Humanitarian Law/ International Criminal Law Treaties, Nigeria had Signed all, Ratified 19 out of 23, Domesticated 2 with 6 Domestication Bills pending before NASS. (See ICRC.org/databases/treaties – Accessed on 7 June 2021).
· Out of a total of 14 UN Human Rights Treaties, Nigeria had Ratified /Acceded to 12 and Domesticated 7 by hybrid, reference and superseding methods (Acts: – E.g., the CRA, 2003; The Torture Act, 2017, NAPTIP Act,2015; VAPP Act, 2015 and Persons with Disabilities Act, 2018).
· Out of a total of 178 International Labour Organization (ILO) Conventions (Fundamental, Governance and Technical), Nigeria had Ratified 40, of which 26 are in force in Nigeria by virtue of Domestication by reference made under the Constitution, Third Alternation Act, 2010/2011.
· Out of total of 23 Multilateral Environmental Treaties, Nigeria had Ratified 20 with only two domesticated (UNCLOS, 1982 by SUPOMO Act, 2019) and (Plant Variety Treaty – ITPGRFA, 2001 , by the Plant Variety Protection, Act, 2021).
· Out of a total of 17 UNESCO Treaties, Nigeria had Ratified all the 17 with zero domestication.
· Out of a total of 61 African Union Treaties relating to Governance, Trade, Economic integration, Human Rights, Health, Education etc., Nigeria had Ratified 26 of them with only 4 domesticated.
· Nigeria had Ratified /Acceded to 10 (ten) Intellectual Property Treaties between 1963 and 2017 (source:- WIPO IP Portal – accessed 15 June, 2021).
· In addition to the Foundation ECOWAS Treaties of 1975, Revised in 1993 and Amended in 2006 by the Supplementary Protocol amending the Revised Treaty of 1993, fifteen (15) Supplementary Acts passed by the Authority of Heads of State are directly applicable in all Member States by virtue of the Monist Corpus Law/Community Law. (See ECOWAS Documentation online for the Supplementary Acts passed between 2008 and 2014).
· Nigeria inherited from the UK at independence about 334 treaties. (See Nigeria’s treaties in Force 1970-1990 (1990) 22).
There are 4 basic methods in international practice: –
• An Implementing Legislation for WHOLESALE ADOPTING of a treaty into domestic law (and Annexed the treaty in question). E.g. The Geneva Conventions Act and the African Charter on Human and Peoples’ Rights.
• An Implementing Legislation with AMMENDMENTS to all EXISTING national legislations that may be/are incompatible with state obligations under the treaty in question. E.g., French-civil law jurisdiction approach.
• A HYBRID/combination of other method Approach: – with COMPREHENSIVE Legislation enabling the CONSEQUENTIAL AMENDMENTS to accommodate new/expansive provisions/elements in the treaty; or for the specific provisions of the treaty to be incorporated in consequential amendments to existing domestic legislations. E.g., the Canadian Act on the Rome Statute of ICC Cap. 24 of 29th June, 2000.
• See the Preamble to the Canadian Act.
• Unique corpus law (Community law) with direct applicable in Member States of the EU and ECOWAS , without recourse to the rigours of parliamentary ratification or domestication of such treaties. In ECOWAS, they are known as a Supplementary Acts, that the Authority of Heads of States passes.
Table 4: – List of Domesticated IHL/IHRL Treaties/National Implementing Legislations/Draft Domestication Bills in Nigeria: – 1960-2020
The following strategic actions are worth considering in pursuit of the above: –
I. Establish a technical expert working group to develop a work-plan for developing a domestic implementing legislation of the AfCFTA in Nigeria. inclusive of the work-plan are the following points: –
• Provide rationale behind/Justification for domestication and implementation;
• Propose desk review of relevant national legislations in order to identify gaps, remove legal obstacles for trade and identify legislations needing amendment;
II. Invest in a consultative process
The development of a national instrument on AfCFTA is a process worth investing in for the following reasons: –
• It is an opportunity for the government to demonstrate its approach to fulfilling its primary role in addressing trade matters and NAC-AfCFTA and to further build its capacity.
• It brings together all relevant actors involved in addressing trade matters in the affected country. It triggers relevant discussions among all participants in the process and provides advocacy opportunities.
• It helps to resolve misunderstandings and to reach agreement on key notions, definitions and concepts.
• It is an excellent opportunity to involve the private sectors and CSOS.
• It is an important learning exercise for everyone involved.
The consultative process to develop a national instrument is as important as the outcome, because it will shape its content and prospects for its successful implementation.
III. Define the nature and scope of the envisaged national implementing legislation: – The first decision to reach is whether the stakeholders involved would prefer to adopt any of the 4 models in international practice or to reflect on other Nigerian national practices by reference and by special adoption of ECOWAS Monist model or to look for best practices elsewhere.
IV. Which method for AFCFTA and its protocols??
· 5 options are available from Nigerian National Practice on domestication of Treaties in Nigeria, 1960 – 2021.
· Due to its complexity and vast areas of coverage, the preferred option is first, to Domesticate the fundamental principles and State obligations and establish a national coordinating body for the implementation of AfCFTA. Hence may adopt the Reference or Hybrid method or take a cue from the Geneva Conventions Act, Cap. G3, LFN 2004 approach.
Monitoring and evaluating implementation serves two primary purposes:
I. Measuring progress: It is important to measure the progress made in implementation of the instrument and assess its impact on economy. Progress assessments are also important for donors if they are to continue to support the implementation activities.
II. Promptly identifying obstacles and gaps: Obstacles and gaps in the implementation process can be problematic and costly if they are not quickly identified and addressed.
An implementation action plan can help to measure progress and identify obstacles and gaps. In order to maximise its potential, any such plan should clearly identify a body with monitoring expertise and experience, establish monitoring periods and require the national institutional focal point to convene regular or ad hoc meetings to take stock of the implementation process.
III. The six W’s of an implementation action plan
· Who undertakes what activity, where and when, using which funding and under whose leadership?
· Who? This question identifies those responsible for implementing particular aspects of the national instrument.
· What? This question identifies the specific activities to be undertaken in line with the chosen thematic priorities.
· Where? This question identifies the geographical area(s) where priority activities are to take place.
· When? This question determines the specific timeframes for the various parts of the implementation process.
· Which funding? This question prompts leaders to identify sources of funding for specific activities.
· Whose leadership? Drawing on the structures established by the national instrument, this question ensures that responsibility for specific activities is clear.
IV. Keeping the process on the national agenda
Given the complexity of the consultative development of a national instrument on AfCFTA, national and other entities may have to make substantial efforts to keep the process on the national agenda. The periods between validation and adoption, and then between adoption and implementation, are particularly important in this sense.
The following measures may help to sustain momentum for the development and implementation of the instrument:
• Ensuring the government body entrusted with leading the process is equipped with the necessary capacities and decision-making powers to maintain the pace of the process;
• Advocacy by other national, regional and international entities with their relevant governmental counterparts and, if applicable, with parliament for swift adoption and implementation. A national champion may be identified to pursue the process;
• Expressions of commitment and support for implementation from other national, regional and international entities during the process;
• The making and honouring of financial commitments for implementation;
• Ensuring that national, regional and international entities’ planning and programming is in line with the instrument, even if not yet adopted, giving effect to expressed commitments.
It is evident from the above that domestication of treaties in Nigeria is a constitutional function, supported by case law. The analysis reveals also that between 1960 and May 2021, Nigeria has triggered four out of 5 different methods of domestication of treaties on different subjects. Due to the complexity of AfCFTA and its Protocols, all the four options are open for possible consideration or a combination of domestication by Reference and Hybrid may be plausible.