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An Abuja-based constitutional Lawyer, Barrister JOHNMARY CHUKWUKASI JIDEOBI, has descended heavily on Chief Femi Falana in his letter to the Hon. Attorney-General of the Federation, accusing Falana of propagating legal heresy. In his letter dated 27th January, 2016 and recieved in the AGF's Office the same day, the Lawyer told the AGF that "It is already bad enough that a Senior Advocate consecrated to uphold the Nigerian Constitution (and not any undomesticated treaty) is betraying the Constitution he swore to protect in circumstances far away from good faith and at best self-serving.". Below is found a full copy of the letter.

27^th January, 2016

THE HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION,

ABUBAKAR MALAMI, SAN,

FEDERAL MINISTRY OF JUSTICE,

ABUJA.

DEAR SIR,

THE INVITATION LETTER OF CHIEF FEMI FALANA, SAN, TO THE INTERNATIONAL CRIMINAL COURT FOR THE INVESTIGATION AND POSSIBLE TRIAL OF SOME ALLEGEDLY-CORRUPT NIGERIANS: A DANGLING SWORD OF DAMOCLES OVER THE AMENDED 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.

The above subject-matter refers.

1.     I humbly write to draw your ever-kind attention to the letter written by Chief Femi Falana, SAN, and addressed to the Prosecutor of the International Criminal Court sitting in the Hague which was widely published both in the print and electronic media on the 25^th January, 2016.

2.     I have three core concerns that compelled this letter to your esteemed office. Firstly, by the infinite mercies of God Almighty, I am a member of this most honourable profession on this planet earth, the Legal profession to which all of us belong. Secondly, Chief Femi Falana is a high-ranking member of this ancient and noble profession by reason of which he is expected to be a shining example especially as it relates to his fidelity to the laws of the land. Thirdly, your highly-placed office is a historic one that shoulders enormous responsibilities especially as it relates to the protection of our Constitution and putting at the disposal of the President of the nation the best available legal advice on all issues of law.

3.     While I make haste to recognize the right of Chief Femi Falana to hold his personal opinion on any issue of law, I will equally highlight the certainty of the qualifications of such right same not being absolute especially when public good and the dignity of our Constitution have come under a dangerous threat. Being a Minister in the Temple of Justice who has equally been charged to remain consistent in defending the Constitution of the Federal Republic of Nigeria and the Rule of Law generally, I consider this letter a discharge of duty that I owe my society in conscience so that propagation of legal heresy will not be allowed to take root in our society.

4.     There is no doubt that all issues verging on the relationship between the Nigerian State and the International Criminal Court carries both international and Constitutional law elements which can easily sway or pull a wool over the eyes of undiscerning section of the Nigerian populace as Chief Femi Falana’s letter under consideration has tended to do in the present circumstance. The heart and soul of this letter therefor is to remove the chaff from the grain since any attempt by the Nigerian Authorities to heed the promptings of that letter will strike a mortal blow on the most sacred document that holds our Dear nation in balance and in being. That will be bad for not only our democracy but indeed each and every one of us.

5.     I will quickly move to clear the debris accumulated by Chief Femi Falana’s letter by juxtaposing the most relevant section of our Constitution that circumscribes issues of Foreign instruments/treaties with the Rome Statute which is the base and springboard of Chief Femi Falana’s voyage to the Hague through the vehicle of his letter. Section 12 of the amended 1999 Constitution of the Federal Republic of Nigeria clearly provides in this unmistakable language;

6.     12 “(1)           No treaty between the Federation and any other country shall have the force law except to the extent to which any such treaty has been enacted into law by the National Assembly.

7.     (2)       The National Assembly may make laws for the Federation or any part thererof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.

8.     (3)       A Bill for an Act of the National Assembly passed pursuant to the provisions of sub-section (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation.

9.     There is no doubt that under international law, treaties are seen as contracts between states and if they do not receive the consent of the various states, their provisions will not be binding upon them. The fundamental principle of treaty law is undoubtedly the proposition that treaties are binding upon the parties to them and must be performed in good faith. Under Article 11 of the 1969 Vienna Convention on the Law of Treaties, it is now firmly settled that among other ways, a state may signal its consent to international agreements by signature, exchange of instrument constituting a treaty, ratification, acceptance, approval or accession.

10.                        All students of international law will recall the never-ending battle between domestic and foreign courts. Thus, the place/fate of foreign laws/treaties before domestic courts vis-a- vis the place/fate of municipal laws before foreign courts have remained an enduring debate in the field of International law world over. While foreign courts/international tribunals have consistently held that municipal laws are amenable to foreign laws/treaties, the municipal courts of many nations have taken the opposite direction in consistently holding that foreign laws/treaties are amenable to domestic laws. In this regard, while interpreting Article 46(1) of the 1969 Vienna Convention on the Law of Treaties, the International Court of Justice held in the case of Cameroon V. Nigeria (Judgment) (2002) that a state cannot plead a breach of its constitutional provision as to the making of treaties as a valid excuse for condemning an agreement and resiling therefrom.

11.                        In contradistinction to the above position held by foreign courts, the House of Lords in England has come to the settled conclusion that “except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual” and further reaffirmed in the very recent case of A (FC) and Others (FC) v. Secretary of State for the Home Department (2005) UKHL 71 where it was held that “a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of international law”.  The position is no different in the United States of America. The question of a possible conflict between treaty obligations and domestic legislation was raised in Diggs v. Schultz 470 F. 2d 461, where the Supreme Court of the United States came to the conclusion that “under our constitutional scheme, Congress can denounce treaties if it see fit to do so, and there is nothing the other branches of government can do about it”

12.                        Sir, fortunately for us in Nigeria, the position is no different as our own Supreme Court has had the opportunity to show the Nigerian position in the case of Abacha V. Fawehinmi (2000) 6 NWLR (Pt.660) 228 where it was held as follows ““I have carefully considered all that has been said by learned counsel for the parties on the status of the Charter as an international treaty entered into by our country. I do not consider it necessary to set out in extenso in this judgment their submissions. Suffice it to say that an international treaty entered into by the government of Nigeria does not become binding until enacted into law by the National Assembly. See s 12(1) of the 1979 Constitution, which provides……….In my respectful view, I think the above passage represents the correct position of the law, not only in England, but in Nigeria as well.”

13.                        It is not in doubt that the Nigerian State acceded to the Rome Statute. It is equally not in doubt that on three different occasions, our National Assembly made efforts to pass the Rome Statute into law without success signifying the intention of the Nigerian people not to be bound yet by the provisions of the said Rome Statute. It logically flows from the foregoing that no Nigerian citizen can derive any benefit nor suffer any injury under the Rome Statute establishing the International Criminal Court same not haven acquired the force of law in the Federation.

14.                        It therefore boggles the mind and challenges established constitutional order that the request to the International Criminal Court of Justice to investigate and possibly try Nigerian citizens could emanate from a Nigerian Legal Practitioner. That this request is coming from a Senior Advocate of Nigeria, who ordinarily and primarily owes his allegiance and fidelity to the Constitution of the land, calls for a serious worry. Let it be said here Sir, that the Rome Statute in its entirety cannot be lawfully enforced by any person or authority in any part of the Federal Republic of Nigeria where the said Rome Statute has not been domesticated in Nigeria by a Legislation by the National Assembly in faithful compliance with section 12 of the 1999 Constitution of the Federal Republic of Nigeria being the supreme law of Nigeria.

15.                        In conclusion, I would urge you to use your good offices, when and if the occasion demands, to ensure that the Nigerian nation does not slide away from the sure path of constitutionalism by siren voices dripping with nebulous intentions other than the promotion of the organic law of the land. It is already bad enough that a Senior Advocate consecrated to uphold the Nigerian Constitution (and not any undomesticated treaty) is betraying the Constitution he swore to protect in circumstances far away from good faith and at best self-serving. May I again restate my personal support and commitment to the current war against corruption being waged by the present administration which all well-meaning Nigerians must rise to support robustly in line with extant laws of the land. However, nobody should be allowed to hide under the guise of supporting the war against corruption to undermine and spurn our Constitution by pulling wool over the eyes of undiscerning members of the public. A call by Mr. Femi Falana, SAN, on the Nigerian Authorities to practically torpedo the organic law of the land is most unfortunate and uncharitable and deserves the outright condemnation of all stake-holders.

16.                        But assuming without conceding, for the purposes of argument, that under our laws the coast is clear for the Nigerian State to co-operate with the International Criminal Court, is Mr. Femi Falana in all sincerity claiming ignorance of the circumstances under which the International Criminal Court will not exercise jurisdiction? Indeed, the key feature of the International Criminal Court is founded on the concept of “complementarity” meaning essentially that the national courts have priority. Article 17 of the Rome Statute clearly outlines the circumstances under which the court will decline jurisdiction and a case will be inadmissible. These circumstances, among others, include where the case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution. Interestingly, Mr. Femi Falana did not allude to this Article 17 in his letter knowing fully well that those he is proposing to be arraigned at Hague are already having their day in different Nigerian Courts. There must indeed be a limit to outright lies and standing of logic on its head. I choose to say no more.

Please Sir, do graciously accept the assurances of my highest regards.       

Yours in defence of Constitutionalism,

JOHNMARY CHUKWUKASI JIDEOBI, Esq.