Adapting, Not Altering: Why Nigeria Should Review Its African Charter Act

Last year, a corporate defendant in the English courts made an argument that should give Nigerian policymakers pause. In Alame & Ors v Shell Plc & Anor [2025] EWHC 1539 (KB), the Bille and Ogale Communities case, Shell’s lawyers argued that the African Charter on Human and Peoples’ Rights, as domesticated in Nigeria, imposed obligations principally on the State and did not provide a clear basis for claims against private corporate entities. The King’s Bench Division of the High Court of Justice accepted that position on its assessment of Nigerian law, leaving communities affected by decades of oil pollution in the Niger Delta to face an obstacle rooted not in the Charter itself, but in how a foreign court understood the Nigerian statute through which the Charter operates domestically.

The decision does not bind Nigerian courts, but it exposes something worth taking seriously: the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria 2004, has not undergone substantive legislative reform since 1983. It still refers to the Organisation of African Unity, replaced by the African Union in 2002. It does not reflect the role now played by the National Human Rights Commission. And, as Alame shows, it leaves real uncertainty about how Charter rights can be enforced against private and corporate actors.

A natural question follows. If Nigeria adapts the Act to fix these problems, is it tampering with a treaty it has no unilateral power to change? The answer is no. Nigerian law has long recognised the distinction that explains why, but it has rarely been applied to this particular statute.

Two different acts, two different instruments

Ratification alone did not make the Charter enforceable before Nigerian courts. Section 12(1) of the 1999 Constitution provides that a treaty has no force of law in Nigeria unless it is enacted by the National Assembly, and it was to satisfy that requirement that the National Assembly enacted the African Charter Act in 1983. The Supreme Court confirmed the consequence of that in Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228: the Charter’s enforceability within Nigeria comes from its domestication, not from ratification alone, a point the Court had already made in Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124.

Ratification and domestication are not the same act. Ratification is performed on the international plane, the means by which a State consents to be bound. Domestication is a separate, constitutional exercise: a dualist State like Nigeria deciding, through its own legislature, how those obligations operate inside its own courts. Section 12 prescribes no particular form for that exercise, only that it occur, and the National Assembly accordingly retains its ordinary legislative authority over the Act today, subject always to the Constitution and to Nigeria’s continuing international obligations. That is an important limit: the National Assembly cannot legislate its way out of what Nigeria owes under the Charter. What it can do is amend the domestic statute through which the Charter operates, provided the amendment continues to give effect to that same obligation.

Article 1 of the Charter supports this, as it requires States Parties to “adopt legislative or other measures” to give effect to Charter rights, without requiring verbatim reproduction of the Charter in domestic law nor prescribing any particular method of implementation. What Article 1 asks for is that the rights be given effect. The legislative form is left to each State, and remains open to revision as circumstances require. The Charter itself, for its part, can only be amended through the Article 68 procedure, which involves the other States Parties, a route Nigeria’s domestic legislation neither uses nor needs, because what the National Assembly amends is its own statute, operating only within Nigeria’s own legal system.

This is consistent with the general international law principle under the Vienna Convention on the Law of Treaties. Article 26 requires good-faith performance of treaty obligations; Article 27 prevents a State invoking its own internal law as an excuse for non-performance. Neither requires a State to keep its implementing legislation unchanged. Nor does the absence of a reservation on ratification change this: a reservation qualifies what Nigeria owes internationally, not how it is domestically implemented. The relevant distinction is between altering what Nigeria owes under the Charter and updating the domestic law through which those obligations are given effect.

Enforcement and reform are not competing projects

There is, of course, a reasonable objection: Nigeria has no shortage of laws on paper. Why spend legislative energy rewriting another one when the greater problem is enforcement? This concern rests on the understandable view that the existing legislative framework is sufficiently clear and that the principal challenge lies in enforcement. But that premise becomes harder to sustain where the legislation itself leaves uncertainty about the scope or application of the rights it seeks to protect. In such circumstances, legislative review can itself strengthen enforcement by removing avoidable uncertainty.

Alame is the clearest illustration. The defendants argued that neither the Constitution nor the Charter, as domesticated, provided a basis for claims against private companies for environmental damage, and the Court accepted that on its assessment of Nigerian law. The decision does not establish the meaning of Nigerian law, but it shows how a question about the scope of domestic enforcement can become an obstacle in litigation before the substantive human rights question is even reached. That is a distinct question from whether the Charter itself contemplates such claims. International responsibility for a State’s failure to protect people from harm caused by private actors is not the same thing as horizontal enforceability of the underlying right against the private actor itself. The former is well established: the African Commission found Nigeria responsible on exactly this basis in Social and Economic Rights Action Center (SERAC) & CESR v. Nigeria, Communication No. 155/96 (2001), arising from the same Ogoni crisis. The latter is the unresolved question of domestic enforceability that Alame brought into sharper focus.

That question matters more as disputes increasingly involve corporations, employers, extractive industries and technology companies rather than the State alone. The National Human Rights Commission’s National Action Plan for the Promotion and Protection of Human Rights 2024–2028, which includes a dedicated Business and Human Rights chapter, is part of that changing landscape, and initiatives of this kind achieve their fullest impact against a legal framework that states clearly what rights and obligations exist and against whom. Legislative clarification, in that light, is part of the enforcement work itself, not a distraction from it.

Nigeria’s domestic model is not the only possible model

Comparative practice among fellow African States Parties is instructive, since these are states bound by the same treaty obligation. Kenya follows a monist model, under which Article 2(6) of its Constitution gives ratified treaties the force of law directly. Namibia does the same under Article 144.

South Africa took a markedly different route from Nigeria’s. Its Constitution generally regulates the domestic implementation of treaties, while its own Bill of Rights carries the weight of protection and enforcement. Section 8(2) is particularly relevant: it expressly extends certain rights to bind natural and juristic persons, including private actors, where the nature of the right makes that appropriate.

What these examples show is that the Charter prescribes no single legislative model. Nigeria’s 1983 approach, transplanting much of the Charter’s own text, was one constitutional choice among several, not the model the Charter requires. What stays constant across every jurisdiction is the underlying treaty obligation. What varies, and is left to each State to decide, is the domestic form chosen to deliver it.

A modernised Act, not a different Charter

None of this touches the substance of what Nigeria promised on ratification, or disturbs the African Commission’s own continental mandate, which continues regardless of anything Nigeria does domestically. What is available, consistent with both the Constitution and Nigeria’s international obligations, is a modernised Act: one that reflects Nigeria’s present constitutional and institutional framework, recognises the National Human Rights Commission’s domestic role, retires its OAU references, and provides greater clarity on how Charter rights apply to private and corporate conduct.

Such a review would benefit from the Federal Ministry of Justice’s involvement, given its role in legislative development and treaty implementation, but the National Human Rights Commission, by mandate and by its standing engagement with government, civil society and international human rights bodies, is well placed to champion the advocacy and stakeholder engagement such a review would require.

More than four decades after the Act’s enactment, and with a UK court having recently shown what its current wording permits litigants to argue, the case for review is no longer legislative housekeeping. It is a question of whether the framework through which Nigeria enforces some of its most important human rights obligations is still fit for the present. The answer need not be to change the Charter. It may simply be to make sure the law through which Nigeria gives effect to it is capable of doing the job.