BAKASSI DECLARATION OF INDEPENDENCE: SOCIO-LEGAL LEGAL IMPLICATIONS
Yemi Oke·
(Article first published on pages 10, and 12 of Thisday Newspaper, Tuesday 21 august, 2012)
The recent declaration of independence, hoisting of flag and coat of arms by the Bakassi people in Cross River State of Nigeria has far-reaching legal and social implications for Nigeria, as it further amplifies the shaky artificial unity of Nigeria as a united country. The Bakassi issue is strictly an international law matter, as the decision of the International Court of Justice (ICJ) has ceded or supposed to have ceded, Bakassi to Cameroon though the process remains inchoate, in law called inconclusive, as certain legal and constitutional steps to give full effect to the ICJ ruling have yet been perfected. The National Assembly has till date been unwilling to effect necessary constitutional changes to give effect to the cession of the Bakassi. The "Green Tree Agreement" represents another crucial document of international and local legal significance. The agreement effectuates the cession of Bakassi, arguably subject to the constitution.
Under the international law, it would appear that Bakassi people do have a right of self-determination (See Pius L. Okoronkwo, "Self-Determination and Legality of Biafra's Secession Under International Law" (2002) Loyola of Los Angeles International and comparative Law Review, at page 63). Self-determination is the right of peoples to determine their own destiny and form government. This may be due to the desire for freedom from colonial rule, internal domination, among others. Self-determination may also be exercised through the establishment of sovereign independent state, by integration, or association with another state.
Self-determination encompasses five basic characteristics: (1) government according to the will of the people; (2) absence of internal or external domination; (3) the free pursuit of economic, social, and cultural development; (4) the enjoyment of fundamental human rights, and (5) the absence of discrimination on grounds of race, colour, or political conviction. Customary international law has acknowledged self-determination as an inalienable right. The right of self-determination is, therefore, tantamount to the right of freedom from alien oppressors, tyranny, or subjugation from local or foreign forces.
Self-determinism is the doctrinal principle on which right of self-determination is exercised. Though several international instruments recognize the principle of self-determination, certain peoples continue to get enmeshed in socio-political conflict with their parent states in a bid to exercise right to self-determination. This is largely because the scope of self-determination is hardly precise, as no international law instrument defines it precise terms or indentifies the categories of peoples to exercise right to self-determination. In international politics, self-determination contradicts, and appears irreconcilable, with territorial integrity.
Self-determination in the case of Bakassi and other ethnic groups in Nigeria are political agitations. However, the Bakassi issue further re-enacts the argument that Nigerians do not share significant commonalities. Sir High Clifford, a former British Governor-General to Nigeria, observed that Nigerians exist in a "collection of self-contained and mutually independent Native States, separated from one another, by vast distance, by differences of history and tradition, and by ethnological, racial, political, social and religious barriers" (Okoronkwo, supra at 66). The late sage, Chief Obafemi Awolowo also acknowledged the fact that "Nigeria is not a nation. It is a mere geographical expression. There are no "Nigerians" in the same sense as there are "English", "Welsh" or "French". The word "Nigerian" is merely a distinctive appellation to distinguish those who live within the boundaries of Nigeria from those who do not." Like the late Chief Awolowo, Sir Ahmadu Bello also noted, that "Lord Laggard and his amalgamation were far from popular amongst us at that time. There were agitations in favour of secession; we should set-up our own; we should cease to have anything more to do with the Southern people, we should take our own way."
The views of early leaders of Nigeria quoted above point clearly at the shaky foundations upon which the unity of Nigeria was negotiated and built. Agitations for secession are as old as the history of the nation, perhaps older. Available records show that every ethnic group had at one time or the other threatened or expressed a desire to separate. One prominent example is the old Biafra. However, self-determination in the case of Bakassi is more of protest against an attempt to foist upon the people a State different from one in which they choose to live. In international law, this is a valid ground for the exercise of right of a people to self-determination. Conversely, it may as well be a ploy to spite the international community that the ICJ decision is not popular with the Bakassi people, as they would prefer to have their own country rather than have foist upon them a new nationality different from Nigeria.
Self-determination in the context of protest against the "Green Tree Agreement" and the ICJ decision ceding Bakassi to Cameroon would appear to make sense. Legally, right of self-determination includes right to determine under which government one is subject to. A people may legally and validly exercise the right not to be subject or govern by a particular government or leader. The Bakassi people have continually indicated preference for Nigeria as against Cameroon. Some opinion writers and legal essayists have argued that the decision to transfer Bakassi to Cameroon was reached without the involvement of the effected people. A counter argument has also been put forward that even the entity now known as Nigeria is a foisted choice. This is the foremost arguments of the post-colonialist.
A critical view of the logic of the arguments of post-colonialism shows that they tend to over-emphasize 'colonialism' as basis of socio-political problems of Nigeria and other countries. But it would appear that post-colonial arguments have inadvertently failed to balance the impact of colonialism against factual incidents and locally generated socio-political problems that occurred immediately after independence in a country like Nigeria. It is the writer's considered view that is no-longer convincing to blame all developmental and economic woes of post-colonial countries on colonialism. In actual fact, it would appear that post-colonial countries like Nigeria and her counterparts in Africa have inflicted other forms of 'colonialism' on their fellow countrymen and women, including unborn children, worse than those inflicted by the colonial overlords.
Though the essence of self-determination is to remove a group from the political domination of another group, self-determinism for basis of cessation may sometimes be counter-productive especially when hurriedly deployed as reactionary, political steps. Speaking frankly, 'fusion' of different ethnic groups in Nigeria might not be directly responsible for the state of the country's socio-economic and political problems in view of increasing waves of multiculturalism. The global trend is such that countries and societies are becoming increasingly widely diversified and multi-ethnically oriented. As a nation, Nigeria might have feared worse if tiny ethnic communities were granted statehood like Togo, Sao Tome and Principe and other small, city-like countries.
The fact remains, however, that the Bakassi issue has continued to be a test for the efficacy of international law and institutions in Nigeria, as elsewhere. In its attempt to solve one problem, it has created several others. The peculiar socio-political tension in Nigeria has further complicated the matter. The concern now is that the cycle of the conflict between Nigeria and Cameroon does not resurface or escalate Nigeria's security and political situations due to the nature of the oil-rich Bakassi region. Technically, Bakassi is under Cameroon by virtue of the ICJ ruling. Therefore, for diplomatic or strategic reasons, Nigeria should keep its cool while the Bakassi people revolt against an attempt to forcefully subject them to another country.
The job of the UN and its institutions like the ICJ, is far from complete as far as Bakassi issue is concerned. This is because the overriding purpose of international law is to commit states to use force only as a last resort after the failure or exhaustion of diplomatic and other peaceful means of conflict resolution. Generally, all members of the UN shall refrain in their international relations from the threat or use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations (See Article 2(4) UN Charter). In line with the intendment of the words 'territorial integrity' and 'political independence'; the UN Security Council may investigate any dispute or situation that may endanger international peace and security, and may recommend appropriate procedure or methods of adjustment of disputes, particularly those listed in Article 33. It provides: "The parties to any dispute, the continuance of which is likely to endanger maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangement, or other peaceful means of their own choice."
The implementation of "Green Tree Agreement" is ordinarily subject to validation by the National Assembly of Nigeria, and explains why the process for the transfer of Bakassi to Cameroon has been slow, and seemingly unrealistic or doubtful. The position of the Nigerian constitution is that no treaty between Nigeria and any other country has any effect or force of law except to the extent to which the National Assembly of Nigeria has enacted any such treaty into law (Section 12 (1) Constitution of the Federal Republic of Nigeria, 1999). Legally, this provision excludes Nigeria from liability for non-compliance with international obligations, as these could be excused on ground of domestic legal expediencies. Where the Federal government of Nigeria is unable to comply with international obligations or agreement like the "Green Tree agreement" or ICJ decision, the only remedy might be the imposition of economic or political sanctions, which countries rarely apply in international legal relations unless it becomes absolutely necessary as last resort. This technicality gives the National Assembly power or latitude to step-down the appropriate legal or constitutional frameworks to give effect to the final transfer of Bakassi to Cameroon, on ground of national expediencies, bearing in mind the constitutional role of the National Assembly.
In the final analysis, the declaration of independence by Bakassi is to be viewed from various angles. First, it is the expression of a people's unwillingness to have foisted on them a government they hardly see as legitimate. It is also a way of testing the efficacy of the international law principle and right to self-determination. While the writer does not suggest that Nigeria should be dismembered to allow the various ethnic groups part ways; it would appear a face-saving devise for the Federal Government of Nigeria to allow, condone or 'ignore' the recent declaration of independence by the Bakassi people as a better option as against voluntarily yielding Bakassi to Cameroon due to the ICJ decision. In diplomacy, further political options or alternatives are never foreclosed. This might as well be a natural way or resolving the dispute between Nigeria and Cameroon over the Bakassi peninsula, based on a "win-win" or "no-win" situation that may eventually allow the people exercise their right of self-determination initially by independence, and later by association with another state, be it Nigeria or Cameroon.
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Yemi Oke, PhD
· Dr. Yemi Oke is a Lecturer in the Department of Jurisprudence and International Law of the Faculty of Law, University of Lagos where he teaches "Energy Resources Law" and "Law of International Institutions". Contact: yoke@unilag.edu.ng
Yemi Oke
PhD; LL.M (Osgoode, Canada)
LL.B (Ilorin); B.L(Abuja, Nig.)
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YEMI OKE
PhD; LL.M (Osgoode, Canada)
LL.B (Ilorin); B.L(Abuja, Nig.)
"In search of the SOLUTION"
--- cafeafricana1@aol.com wrote:
From: Funmi Tofowomo Okelola <cafeafricana1@aol.com>
To: Funmi Tofowomo Okelola <cafeafricana1@aol.com>
Subject: USA Africa Dialogue Series - How to steal Nigeria blind – and get away with it!
Date: Sun, 19 Aug 2012 16:29:46 -0700
How to steal Nigeria blind – and get away with it!
Nigeria is in mortal danger of being shredded beyond repair by the transparent thievery of its ruling elite; 'transparent' because they no longer bother to cover their tracks. They do it in your face. They know they will get away with it either through the novel fraud called 'plea bargain' or through an understanding with the prosecutors which ensures that the case is eventually thrown out for lack of diligent prosecution. Add to this the no-longer-muffled allegations of corruption in the judiciary and you can see that Nigeria is the haven of the corrupt.
Remember the Halliburton scandal? In different parts of the world some former officials of that company are counting beans seeds in various jails but in Nigeria various stratagems are being put in place to destroy the case via technicalities. After the case was struck out by Justice Abubakar Umar, the government reportedly said it would appeal. The scheme was so blatant that Femi Falana, one of the more respectable attorneys plying their trade in the land, had to cry out. Smelling a rat, Falana warned, "The reported plan of the government to file an appeal against the high court order which struck out the case is a provocative design to pull wool over the eyes of Nigerians. There is no basis for an appeal when the case can be re-filed so that it can commence once the witnesses are instructed to attend the trial court and give evidence for the prosecution."
If the government did not want to re-file the case, Falana suggested an alternative: "The Nigerian Bar Association should be asked to assemble a team of experienced prosecutors to take over the prosecution of the case…." He added, "Whereas some of the suspects had made confessional statements and refunded huge sums of money, the prosecution suddenly developed cold feet. The seven prosecution witnesses (four SSS operatives, two NIA officials and one EFCC investigator) repeatedly failed to turn up in court since the trial was programmed to fail ab initio. Such brazen manipulation of the criminal justice system at the highest level of the State should not be allowed to go without a serious challenge."
Indeed, Falana is quite right. When criminal behaviour goes unpunished, perpetrating evil becomes attractive.
Former Managing Director and Chief Executive Officer of Oceanic Bank PLC, Mrs Cecilia Ibru was convicted of fraud, money laundering and mismanagement of depositors' funds. She was sentenced to six months imprisonment with a forfeiture of N150 billion. Ex-Governor James Ibori was apparently more adroit at the game. He played hide-and-seek with the judicial system here only to meet his waterloo in the UK. The same set of allegations and evidence were deployed. Apparently what is regarded as a crime in the UK is the requisite qualification for lionization in Nigeria.
Ibori is not alone in the club of redoubtable judicial acrobats. His colleague, Lucky Igbinedion, former governor of Edo State is luckier. Igbinedion was discharged by the Federal High Court sitting in Benin in the 66-count charge of money laundering and corruption brought against him and others by the Economic and Financial Crimes Commission (EFCC). He had reportedly arranged a plea bargain with the EFCC in which he would pay back a slice of his loot and forfeit some of his properties to government in return for freedom. Today, Igbinedion strut the streets like a conqueror.
Critics say plea bargain largely amounts to a miscarriage of justice, going by the Nigerian experience so far because it tends to give undue advantage to defendants. They cite such cases that involved a former Inspector General of Police, Tafa Balogun and some prominent politicians. The clear message being sent to Nigerians is that it is okay to loot the treasury as long as you are prepared to return some of the loot to the state and share some of the rest with the relevant officials prosecuting the case. Chief Justice Dahiru Musdapher describes the plea-bargain system as "a novel concept of dubious origin," insisting that "it was invented to provide soft landing to high profile criminals who loot the treasury entrusted to them." Damn right, CJN!
Recently Erastus Akingbola, former Chief Executive of Intercontinental Bank, was discharged by the courts for want of diligent prosecution by the EFCC. Juxtapose that with the thousands of cases of Awaiting Trial Inmates of our prisons most of whom are victims of lack of diligent prosecution and you would understand the game. No judge has bothered to throw out the cases against the wretched of our earth on account of lack of diligent prosecution. It is a benefit accessible to only the rich.
Reviewing the trend recently, Denja Yaqub, Assistant General Secretary of the Nigeria Labour Congress, said "the recent discharge of Erastus Akingbola, Tony Elumelu, and Dimeji Bankole, exposes the rottenness of the corruption-filled judicial system in Nigeria. If the judiciary can't stand on credible standards in any society, the society is doomed and that explains why Nigeria has remained rickety and obviously crumbling".
Nigeria is believed to have lost more than $400 billion as a result of corruption between 1960 and 1999. One of the latest numbing revelations of looting is the celebrated N32.8 billion police pension fund scam. A few individuals conspired to rob pensioners of the fruit of their labour. This is Armageddon, nothing short. What rankles more than anything else is the thought that the guilty will walk away free at the end of all the stage-managed hoopla. What are we doing to this much pilloried country?
Famous German political foundation, Konrad Adenauer Stiftung (KAS), recently expressed surprise over how Ibori, managed to escape justice on the multibillion naira fraud charge slammed on him. Indeed, most Nigerians believe that the third arm of government, like the executive and the legislature, is now dominated by individuals of low moral fibre. Who was it that said "Corruption is authority plus monopoly minus transparency"?
How do Nigerians feel about all these? The word on the streets is that our dear country has been hijacked by bandits and that nothing short of a people's revolution can stem the haemorrhaging of our national coffers. One commentator said: "We are all wasting our time. Nigeria is so bad that nothing will happen to any of the thieves being prosecuted. Ibori made a mistake travelling out; he should have stayed here to arrange his freedom as other ex-governors who looted the treasury are doing. The important thing is to steal enough so that you will have enough to bargain with."
As if that view was not dismal enough, one blog site commentator, apparently an Akingbola acolyte, lampooned the EFCC and argued that the anti-corruption body ought to apologise to the ex-banker for arraigning him and "trying to spoil his good name". He also demanded that Intercontinental Bank be returned to Akingbola and his position as chief executive restored!
At times you don't know whether to laugh or cry!
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