Friday, 17 August 2018

RATIFICATION OF TREATIES IN NIGERIA

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No man is an island. No country is an island too. Local statutes fashioned to suit a country may not always be sufficient in the grand scheme of things. This is why there are international laws addressing different aspects of man’s existence and cutting across different sovereign countries that are subject to those laws.

A treaty is a pact made between two or more independent nations with a view to public welfare. It is a written and executed agreement between countries or between countries and international agencies, which is to be governed by International Law.[1]

Negotiation, Signing and Ratification
In Nigeria for instance, in order to become effective, a treaty must go through certain stages. These stages are: Negotiation, Signing of the Treaty and then Ratification of the Treaty.

At the negotiation stage, delegates of both countries are assigned to negotiate the Treaty between both nations. The Constitution of the Federal Republic of Nigeria does not expressly provide who these delegates should be but they may be any ministry, government agency, body or person who negotiates and enters into treaties for and on behalf of the Federation of Nigeria.[2]

Following conclusion of negotiations, these delegates then sign the treaty on behalf of their respective nations. Unlike regular contractual agreements that become effective upon execution (signing) by parties, the signatures of the parties to the treaty only show an intention to be bound by the treaty. There is no binding agreement creating obligations between the countries yet.

It is upon ratification that the provisions of treaties become applicable to nations that are parties to the treaty. However, in certain countries like Nigeria, there is an extra step of “domestication of treaties” which has to be taken before the treaties are enforceable in the country.
 
Nigeria’s Position on Treaties
Section 12 of the Constitution of the Federal Republic of Nigeria highlights the position of Nigerian law in respect to treaties, their ratification and applicability in Nigeria. In other words, it is not enough for the treaties to be negotiated and then consequently signed. The all-important consideration and question to be asked is: “Are those treaties applicable in Nigeria?” The answer to that question is that, unless a treaty has been enacted into law by the National Assembly of Nigeria, such a treaty between Nigeria and any other country shall not be enforceable in Nigeria. Therefore, only after the treaty has been enacted into a law in Nigeria is a binding obligation to be fulfilled by the Federal Government comes into play.

One may wonder what happens where, for the purpose of a treaty, the National Assembly has to delve into lawmaking outside the Exclusive Legislative list. Generally, the National Assembly makes laws with respect to matters contained in the Exclusive Legislative List and also certain matters in the Concurrent Legislative list to the extent prescribed in the Constitution. However, specifically for the purpose of domestication of treaties, the Constitution extends the powers of the National Assembly outside the Exclusive Legislative List for the purpose of implementing treaties.[3] In this case, such a bill shall not be presented to the President for assent and has to be ratified by at least a majority of all the Houses of Assembly in Nigeria before it is enacted. This is one instance where the assent[4] of the President is not required before a bill is enacted into law in Nigeria.

The consequence of failing to get ratification of a treaty by a majority of the various State Houses of Assembly in Nigeria where a matter to be legislated upon falls outside the purview of the Exclusive Legislative List, is that such Law enacted by the National Assembly will be made to govern only the Federal Capital Territory, Abuja.[5]
 
Status of Treaties that have been Domesticated in Nigeria
Treaties that have been domesticated in Nigeria have the same force of law as our Nigerian statutes. So, their provisions are interpreted in the same way our statutes enacted in Nigeria are interpreted.[6]

This is the position of treaties and their application in Nigeria. So, for the purpose of a treaty being a part of the Nigerian legal system, the treaty has to first be enacted into our Nigerian statutes which are then enforced in Nigeria. A mantra to this effect may be “No Enactment, No Applicability of Treaty”. International treaties constitute a major source of Nigerian Law.[7] They have even been regarded as substitute legislation in certain cases.

A classic example of negotiation of treaties by delegates was seen recently in the delegates that represented Nigeria in the seventh session of the Conference of Parties (COP7) to the World Health Organisation Framework Convention on Tobacco Control (WHO FCTC). These delegates were from different sectors of Nigeria spanning the Federal Ministry of Health, Ministry of Justice, the Standards Organisation of Nigeria, the Nigerian Customs service and representatives of civil societies in Nigeria. The negotiations pertained to a global tobacco treaty particularly the framework Convention on Tobacco Control which is basically geared towards, inter alia, the regulation of tobacco products in the interest of the public.[8]
 

[1] Legal Dictionary. Accessed at http://legal-dictionary.thefreedictionary.com/treaty on 6th June 2017.
[2] Treaties (Making Procedure, Etc) Act  lawnigeria.com/LawsoftheFederation/TREATIES-(MAKING-PROCEDURE-ETC.)-ACT.html
[3] For more details of the law making power of the National Assembly, see the post on THE SOUTHERN KADUNA KILLINGS: DEMARCATION BETWEEN THE POWERS OF THE FEDERAL GOVERNMENT AND THE STATE GOVERNMENT THE DEMARCATION BETWEEN THE FEDERALGOVERNMENT AND THE STATE GOVERNMENTS.docx
[4] The Assent of the President of Nigeria is ordinarily required before a Bill is enacted into Law by the National Assembly. It is the last stage in the law making process at the Federal Level in Nigeria.
[5] L.C. Diebo, ‘Implementation and Application of Treaties in Nigeria’ in: A. Omoware ‘Child Rights Act in Nigeria – Reality or Farce http://www.mediafire,com/?daadigbt32t7cp
[6] International Law in the Nigerian Legal System (1997) Christian N. Okeke Golden Gate University School of Law, This email address is being protected from spambots. You need JavaScript enabled to view it.   http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1009&context=pubs
[7] Atilola B. ‘National Industrial Court and Jurisdiction over International Labour Treaties under the Third Alteration Act. Retrieved 7th May, 2017.
[8] Ben Ezeamalu ‘COP7: Nigerian delegation accuse colleagues of pushing tobacco industry agenda’ November 9, 2016. https://www.google.com/amp/www.premiumtimesng.com/news/top-news/214917-cop7-nigerian-delegates-to-the-seventh-tobacco-industry-agenda.html/amp

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