Obongodu Paul Unanam is a law graduate of the University of Uyo, Faculty of Law, specialising in anti-corruption law and public international law. He worked at the Ministry of Justice, Akwa Ibom State. He won the Dafe Akpeye SAN Essay Prize 2025 and was shortlisted for the PPLAAF/Step Up Nigeria Prize 2026.

In July 2025, a former deputy director at Nigeria’s Joint Admissions and Matriculation Board received a police visit to his home. He had reported financial irregularities through official internal channels. The visit came after his dismissal and after the filing of criminal charges against him. Nothing that happened to him was unlawful under Nigerian law. That is precisely the problem.

Nigeria ratified the African Union Convention on Preventing and Combating Corruption (AUCPCC) in 2006.[1] Article 5(5) requires states to adopt measures to protect informants and witnesses of corruption. Article 5(6) extends that obligation to persons who report acts of corruption in good faith. The language is mandatory. It admits no discretion as to whether protection is required, only as to how it is implemented. What Nigeria has instead is a 2016 Ministry of Finance policy that offers financial rewards to informants and says nothing about retaliation, dismissal, prosecution, or police contact.[2]

Three draft Whistleblower Protection Bills have died in committee since 2001. The most recent, approved by the Federal Executive Council in December 2022 and forwarded to the National Assembly, has not passed as of mid-2026.[3] The question this article addresses is whether that failure, sustained and deliberate across twenty years and in the face of a binding treaty obligation, remains only a domestic policy failure, or whether it has crossed into something the international human rights system should name more precisely: a breach of a positive obligation to legislate.

The Positive Obligation Question

The doctrinal move is not novel. The European Court of Human Rights has long recognized that states incur positive obligations under the Convention not merely to refrain from interference but to create legal conditions that make rights effective. The African system, less extensively theorised in this register, has begun engaging the same logic. The African Commission on Human and Peoples’ Rights (African Commission), in its jurisprudence on Articles 1 and 9 of the African Charter on Human and Peoples’ Rights (African Charter), has repeatedly found that states must not only abstain from restricting expression but must maintain the legal conditions under which expression can practically occur.[4]

The Economic Community of West African States’ (ECOWAS) Court of Justice extended this in Laws and Rights Awareness Initiative v Nigeria,[5]where it engaged with the question of chilling effects on civic expression. The court found that a legal environment which produces a chilling effect on protected expression is incompatible with Nigeria’s obligations under the African Charter, even absent a direct restriction. The implications were not fully developed in that judgment. They warrant development here.

A civil servant who witnesses procurement fraud has, in the Nigerian legal environment, two choices. She can stay silent, which is rational and entirely legal. Or she can report through the official channel, which is also legal, and which exposes her to the full range of institutional instruments available to the agency being reported: administrative dismissal, criminal referral, and law enforcement coordination. Nothing prohibits any of it. The reported case from July 2025 is not exceptional. It is illustrative of a consistent pattern that PPLAAF’s Nigeria country monitoring has documented across multiple agencies and administrations.[6]

The question the ECOWAS Court’s chilling effects jurisprudence raises is whether the absence of statutory protection, when the absence is deliberate and sustained and operates against the background of a binding treaty obligation, is itself a form of interference with protected expression and the right to participate in public affairs under Article 13(1) of the African Charter. The argument is available. It has not yet been litigated in this form.

The AUCPCC and the Adequacy of Executive Policy

The second doctrinal question is whether Nigeria’s executive policy discharges its treaty obligations under Articles 5(5) and 5(6) of the AUCPCC. The answer turns on what “measures” means in the treaty text.

The AUCPCC does not specify that protection must be statutory. It requires that states “adopt measures.” An executive policy is a measure. The question is whether the policy actually provides the protection the treaty requires, or whether it provides the appearance of it.

The 2016 policy offers informants between 2.5 and 5 percent of recovered funds.[7] It creates no mechanism for investigating retaliation complaints. It imposes no penalty on institutions that dismiss or prosecute those who report. It provides no interim protection from the moment of disclosure. It does not modify the terms of civil service employment or limit the powers available to public agencies against the civil servants they employ. A person who uses the official channel remains fully exposed to every instrument of institutional retaliation available under existing administrative and criminal law.

This is not protection in any meaningful sense. It is an extraction mechanism that incentivises disclosure while leaving the person who discloses in a legally weaker position than if they had said nothing, since reporting creates a documentary trail that silent witnesses do not carry. The argument that this satisfies a treaty obligation requiring states to protect informants is not sustainable on the plain text of the convention or under good faith interpretation pursuant to Article 31 of the Vienna Convention on the Law of Treaties.[8]

Why the African Regional Mechanisms Are Now More Important

The narrowing of United States’ Foreign Corrupt Practices Act (FCPA) enforcement under the June 2025 Department of Justice’s (DOJ) guidelines is not directly relevant to the treaty law argument, but it is relevant to its urgency.[9] For two decades, a significant portion of the external accountability pressure on Nigerian institutional corruption came from DOJ investigations into multinational conduct. That pressure was imperfect and selective. It was also, for a significant number of cases, the only external accountability mechanism that reached the conduct at scale.

The DOJ guidelines now require Attorney General approval for FCPA investigations and deprioritize cases without national security dimensions. A bribe paid in a Nigerian procurement context, absent a cartel connection, falls outside the current enforcement priority. The practical consequence is that the transnational accountability pressure that helped create space for domestic institutional reform is narrower than it was eighteen months ago. The African regional system, specifically the ECOWAS Court and the African Commission, is not a replacement for that pressure. But it is the accountability mechanism that remains, and the question of whether it can be deployed to address legislative omission, rather than only active statutory restriction, has become more consequential.

What Litigation Would Need to Establish

A case before the ECOWAS Court seeking a declaration that Nigeria’s failure to enact whistleblower protection legislation breaches its obligations under the African Charter and the AUCPCC would need to establish three things.

First, that the chilling effects principle in Laws and Rights Awareness Initiative extends to legislative omissions and not only to positive statutory restrictions. This is doctrinally available. The court’s reasoning in that case did not turn on the existence of a specific restriction. It turned on whether the legal environment made the exercise of protected expression functionally risky. The Nigerian legal environment does exactly that for public sector reporting.

Second, that the AUCPCC obligations are directly cognizable before the ECOWAS Court either as treaty obligations that Nigeria has failed to meet or as obligations informing the interpretation of the African Charter. The court has jurisdiction over human rights violations committed by ECOWAS member states. The African Charter is the primary instrument. The AUCPCC operates alongside it.

Third, that the documented cases, including the July 2025 police visit and the PPLAAF case documentation, establish the specific harm the legal gap produces rather than a generalised complaint about policy failure.

None of these are easy arguments. The first is novel. The second requires the court to engage with how regional treaty obligations inform Charter interpretation in a way it has not fully done. The third requires specific litigants willing to place their cases on record.

But the doctrinal tools are there. The jurisdiction is there. The treaty obligation is unambiguous. What has been missing is litigation that puts the three together in a form the court can act on. The practical implications of the FCPA recalibration make the timeline for that litigation more urgent. The Global South cannot rely on Washington to enforce accountability norms that African institutions are already obligated to enforce. The ECOWAS Court has the mandate. The question is whether it will be asked to use it.

[1] African Union Convention on Preventing and Combating Corruption (adopted 11 July 2003, entered into force 5 August 2006) <https://au.int/en/treaties/african-union-convention-preventing-and-combating-corruption&gt; accessed 18 May 2026.

[2] Federal Republic of Nigeria, Ministry of Finance Whistleblowing Policy (December 2016) <https://www.pplaaf.org/country/nigeria.html&gt; accessed 22 May 2026.

[3] Platform to Protect Whistleblowers in Africa, ‘Nigeria Country Assessment’ <https://www.pplaaf.org/country/nigeria.html&gt; accessed 21 May 2026.

[4] African Commission on Human and Peoples’ Rights, ‘General Comment No 2 on Article 14(1)(a), (b) and (f) and Article 14(2) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’ (2016); Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998).

[5] Laws and Rights Awareness Initiative v Federal Republic of Nigeria ECW/CCJ/JUD/17/18 (ECOWAS Court of Justice, 2018).

[6] Platform to Protect Whistleblowers in Africa (PPLAAF) Nigeria Country Assessment (n 3).

[7] Ministry of Finance Whistleblowing Policy (n 2).

[8] Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 31.

[9] United States Department of Justice, ‘Foreign Corrupt Practices Act Enforcement Guidelines’ (June 2025) <https://www.jenner.com/en/news-insights/client-alerts/back-in-action-the-trump-administration-lifts-pause-in-foreign-corrupt-practices-act-enforcement&gt; accessed 15 May 2026.