Nigeria's Federal Executive Council (FEC) on Wed. approved the ratification of the Agreement Establishing the African Continental Free Trade Area ("AfCFTA Agreement"). This thread examines some legal issues around ratification of international agreements in Nigeria./1 #AfCFTA
Under the Nigerian legal system, ratification is an executive act. It does not require the approval of the National Assembly. /2 #AfCFTA #Nigeria
There is a second step normally referred to as 'domestication' - a process through which an international agreement becomes applicable in the national courts. /3 #AfCfTA #Nigeria
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 /4 #AfCFTA #Nigeria
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 /6 #AfCFTA #Nigeria
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 /7 #AfCFTA #Nigeria
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. /8 #AfCFTA #Nigeria
It is through this process of domestication that the African Charter of Human and Peoples' Rights have become a part of our national laws. /9 #AfCFTA #Nigeria
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) Nigeria has inherited from the common law system of Britain./10 #AfCFTA #Nigeria
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. /11 #AfCFTA #Nigeria
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.../12 #AfCFTA #Nigeria
subject only to the extent to which the other state parties or a particular state party reciprocates such gesture in their municipal legal system. /13 #AfCFTA #Nigeria
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... /14 #AfCFTA #Nigeria
the WTO Agreement and the various Agreements 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.../15 #AfCFTA #Nigeria
...nobody can bring an action against the government or any other person in Nigeria for violating those agreements. /16 #AfCFTA #Nigeria
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. /17 #AfCFTA #Nigeria
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. END #AfCFTA #Nigeria
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