Under the Nigerian legal system, ratification is an executive act. It does not require the approval of the National Assembly. There is a second step normally referred to as ‘domestication’ – a process through which an international agreement becomes applicable in the national courts. This is where Section 12 of the Constitution comes to play. At this stage of ratification, all that is required after the FEC approval is for the Ministry of Justice to prepare the Instrument of Ratification which would be signed by the President and deposited with the AU. But since this seems a topical issue at the moment let me drill deeper into the subject.
The legal implication of this two-level approach is that at the first stage, ‘ratification’, the agreement becomes binding on the country in its relationship with the other members or state parties to the agreement. At this stage, no action can be founded in the national courts based on the agreement. This also means that citizens or businesses cannot challenge the government in court for failing to act in accordance with its obligations under the agreement – for instance, for closing the border. But once an agreement is domesticated, it becomes law within the country and citizens, or businesses can found an action based on the content of that agreement. It is through this process of domestication that the African Charter of Human and Peoples’ Rights have become a part of our national laws.
The process of binding the country externally and binding the country internally are separate and follow the doctrine of dualism (as against monism which is prevalent in civil law jurisdictions) which Nigeria has inherited from the common law system of Britain. Under this system, international agreements can only become a part of the municipal (national) law through the specific process of incorporation/domestication by a statute. In the civil law countries – mostly of continental Europe and their colonies like francophone Africa – international agreements, upon ratification are directly applicable in the municipal legal system, subject only to the extent to which the other state parties or a particular state party reciprocates such gesture in their municipal legal system.
It may interest you to know that Nigeria has not domesticated the various trade agreements it is implementing today such as the Revised ECOWAS Treaty and the various trade/investment related Protocols accompanying it, the WTO Agreement and the various Agreements/Annexes accompanying it.
Again, the implication is that while the other state parties can sue the Nigerian government under the respective dispute settlement mechanism under those Agreements, nobody can bring an action against the government or any other person in Nigeria for violating those agreements.
While this is the current position of the law, I would, however, advocate for a system that involves the National Assembly (at least by a simple resolution) in the process of ratification, as is the case in countries like the U.S, S/Africa, etc. Secondly, I would also advocate for a system (through constitutional reforms) that grants a special recognition and abridged process of domestication for regional (ECOWAS) and continental (African) trade and investment agreements.
