Judicial Protection of some Fundamental Rights in Nigeria and in the Sudan before and during Military Rule

Akinola Aguda; Oluwadare Aguda

doi:10.1017/S002185530001038X

Judicial Protection of some Fundamental Rights in Nigeria and in the Sudan before and during Military Rule

Published online by Cambridge University Press: 28 July 2009

Akinola Aguda and

Oluwadare Aguda

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Africa quite suddenly came within the focus of the world's political microscope in the last decade or so. Having thus come into view, it has aroused the interests not only of political scientists but also of lawyers all over the world to an extent almost unprecedented in world history. The colonial powers which had ruled most of Africa in modern times had themselves had centuries of political autonomy behind them. Within the past two decades these colonial powers have had, mainly voluntarily but in some cases as a result of revolt by the governed, to transfer political power to most of their erstwhile dependent peoples.

Type: Articles
Information: Journal of African Law , Volume 16 , Issue 2 , Summer/Été 1972 , pp. 130 - 144

DOI: https://doi.org/10.1017/S002185530001038X [Opens in a new window]
Copyright: Copyright © School of Oriental and African Studies 1972

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³ In 1820, the Turkish rulers of Egypt invaded the territories now known as the Sudan and created a colony there. The Egyptian colonisation lasted till January, 1885, when, as a result of a religio-political revolt of the Mahdists begun in 1881, the Egyptians were pushed out. The Mahdists ruled the Sudan from 1885 till the reconquest.

^{page 131 note 1} This is a bit of simplification and readers may make reference to standard books on the history of Nigeria.

^{page 131 note 2} See Peaslee's Constitutions of the World, mentioned by ProfessorGledhill, A. in his essay on “Fundamental Rights” in Changing Law in Developing Countries, ed. Anderson, J. N. D., London, 1963, p. 81.Google Scholar

^{page 131 note 3} Op. cit., p. 82.

^{page 131 note 4} This was the second time that the Army would assume power in the Sudan, the first period being 1958–64.

^{page 131 note 5} Salah Eddin Hassin in Joseph Garang & Ors. v. The Constituent Assembly & Ors., Khartoum High Court CS/93/1965 (unreported).

^{page 131 note 6} The existing Constitution then was the Republican Constitution of 1963 which had superseded the Independence Constitution of 1960. But both Constitutions contained similar provisions relating to Fundamental Human Rights.

^{page 132 note 1} See Director of Public Prosecutions v. Chike Obi, [1961] 1 All N.L.R. 186.

^{page 132 note 2} 354 U.S. 298, at p. 344 (1957).

^{page 132 note 3} See also Speiser v. Randall, 357 U.S. 513 (1958).

^{page 133 note 1} (1868), 1 Cox 44, at p. 45.

^{page 133 note 2} (1950) Supreme Court Journal 418, at pp. 423–424.

^{page 133 note 3} Art. 19, cl. 2 of the Constitution of India.

^{page 133 note 4} Pp. 99–108, AC-CP 480–1965, Sudan Law Journal and Reports, 1966.

^{page 134 note 1} See Ogbuagu v. Police (1953), 20 N.L.R. 139, to the like effect.

^{page 134 note 2} See, for example, R. v. Burdett (1820), St. Tr. (N.S.) 1; 4 B. & Ald. 95; R. v. Duffy (1846), 6 St. Tr. (N.S.) 303; 2 Cox 45; Ex parte O'Brien (1882), 15 Cox 180.

^{page 135 note 1} (1952), 14 W.A.C.A. 176.

^{page 135 note 2} Director of Public Prosecutions v. Chike Obi, [1961] 1 All N.L.R. 186.

^{page 136 note 1} Now the Supreme Military Council/The National Executive Council.

^{page 136 note 2} Government Notice No. 1769 of October 14th, 1954 and Western Nigeria, G.O. 02105.

^{page 136 note 3} See Serikin Pawa & Ors. v. Raji Akangbe, [1961] W.N.L.R. 268.

^{page 136 note 4} [1960] N.N.L.R. 24, at p. 33.

^{page 136 note 5} Cap. 21 of the Laws of the Northern Region of Nigeria, 1963.

^{page 137 note 1} Public Order Decree, No. 33 of 1966, which came into operation on May 14th, 1966.

^{page 137 note 2} See The Constitution (Suspension and Modification) Decree, 1966, No. 1 of 1966.

^{page 137 note 3} Public Order (New Political Associations Restriction) Notice, 1969, L.N. 1 of 1969.

^{page 137 note 4} Amendment No. 2 of 1965.

^{page 137 note 5} Special Supplement to the Republic of Sudan Gazette, No. 1015.

^{page 137 note 6} Unreported, Khartoum High Court, Suit No. DMK/CS/HC/93/1965.

^{page 138 note 1} Some of these churches pretend to have the power of effective cure of any disease or illness through the use of coloured candles or the application of certain oils or the burning of certain incenses which they sell to their adherents at exorbitant prices, sometimes over ten times their values in the open market from where they have been purchased. In most cases these adherents in addition contribute 10% of their total gross incomes under any circumstances; and it has been suggested with unyielding persistence that these adherents make all these payments under the influence of strong and persistent hypnotism or bewitchment by the leaders of these churches.

^{page 139 note 1} Section 23 of the 1960 Constitution; now s. 24 of the 1963 Constitution.

^{page 139 note 2} [1961] 1 All N.L.R. 277.

^{page 139 note 3} However it may be doubted if the present discrimination in favour of Christianity will long survive political pressure. Only early in 1971 did a Judge of the High Court of the Lagos State, a Moslem, refuse to attend the traditional Criminal Assizes church service in Lagos. Similarly a Judge of the Supreme Court of Nigeria, and some state judges have queried the age-old custom of attending a Christian church service to mark the beginning of a new legal year.

^{page 139 note 4} Sudan Law Journal and Reports, 1963, 56.

^{page 140 note 1} [1962] 1 All N.L.R. 413.

^{page 140 note 2} Unreported, Suit No. SC. 58/69 of April 24th, 1970.

^{page 140 note 3} Supremacy and Enforcement of Powers Decree, No. 28 of 1970.

^{page 141 note 1} See State Security (Detention of Persons) Decrees, (Nos. 1–12) of 1966, under which a large number of persons were kept in detention without trial.

^{page 141 note 2} Unreported, Ibadan Civil Suit No. M./22/69.

^{page 141 note 3} Decree No. 24 of 1967.

^{page 141 note 4} 16 Sup. Ct. Jo. 326.

^{page 141 note 5} Sudan Law Journal and Reports, 1962, 51.

^{page 142 note 1} [1960/ N.N.L.R. 24 (discussed supra).

^{page 143 note 1} Khartoum High Court, Suit No. DMK/CS/HS/93/1965, discussed supra. In Adegbenro v. Akintola, [1963] 3 W.L.R. 63 the Nigerian Federal Government and the Western Region Government prevented a decision of the Judicial Committee of the Privy Council from taking effect by passing legislation amending the Constitution retrospectively. See also Sabally & Njie v. Attorney-General for Gambia, [1964] 3 W.L.R. 732.

^{page 143 note 2} [1962] 1 All N.L.R. 413 (discussed supra).

^{page 143 note 3} Ibadan High Court Suit No. M/22/69 (discussed supra). See also In re Mohamed Olayori & Ors., Lagos High Court Suit No. M/196/69.

^{page 143 note 4} Sudan Law Journal and Reports, 1966, 99 (discussed supra).

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