The Trials of Igbohos & Kanu: Right of Self Determination and its Limitations under International Law of “uti possidetis juris”

 “One thing is certain: the present edifice called Nigeria as we know it today has come nearly to the end of its life . . . The cracks on its walls are too great for the edifice to continue to stand.”- Hon. (Dr.) Akinola Aguda (The Future of Nigeria: Cracks in the Wall. The Comet Lagos October 1, 2000).

Nigerians home and abroad are waiting for the resolution of 2 pending cases with bated breath. The case of Sunday Igboho at a Beninese court and Nnamdi Kanu at Federal High Court, Abuja. The primary case against these two ethnic agitators is their struggle for secession and freedom from oppression from Nigeria. The cases have been subjected to several adjournments primarily at the instance of the Federal Government of Nigeria whose attorney often seems lost for words, and looking askance at every hearing. This article will seek to answer an important question that will come up during these hearing: Can we say there exists in contemporary international law and practice an inalienable right of self-determination applicable to all peoples subject to oppression, exploitation and subjugation by others?

Article 1 of the International Human Rights Covenants of 1966 makes the right of self-determination available to “all peoples” without any restriction as to their status. The Covenants further places an obligation on all states “including those having responsibilities for the administration of colonial territories to promote the realization of the right to self-determination. Similarly, Article 20(2) of the African Charter refers to both “colonized and oppressed people” as having the right.

The African Commission ruling on application of the foregoing provision of the African Charter in Katangese People’s Congress v. Zaire held that while the request for self-determination lacks merits, the rights of the people of Katanga to their language and culture were inviolable.

Elsewhere in other continents outside Africa, however, the principle of self-determination by components of a nation state has been upheld. For example, the Treaty of the Final Settlement with Respect to Germany, 1990 signed by four of the five Permanent members of the Security Council expressly stated that the “German people, freely exercising their right of self-determination, have expressed their will to bring about the Unity of Germany as a state.” Ditto, the Report on the secession of Bangladesh from Pakistan where the International Commission of Jurists stated that “if one of the constituent peoples of a state is denied equal rights and is discriminated against, it is submitted that their right of self-determination will revive.”

This principle is borne out of the need to eradicate oppression of peoples and to protect human rights in all circumstances. How can this principle of customary international law be applicable in Europe and Asia but not in Africa-the cradle of all human race? One can therefore conclude that there exist in contemporary international law and practice an inalienable right of self-determination applicable to all peoples subject to oppression, exploitation and subjugation by others.

The purpose of the right of self-determination is to protect communities or groups from oppression and to empower them. The exercise of this right however requires a delicate balancing of interests. Just as there can be no absolute human rights that is not subject to reasonable limitations, the rights of self-determination is subject to the needs of the state to protect the general interests of the society.

The general interests of the international society in maintaining international peace and security place a limitation on the right of self-determination. This interest finds expression in the Latin maxim, “uti possidetis juris” (UPJ-as you possess).  This principle of protection of the territorial integrity of states has its roots in colonialism and the colonial desire to maintain peace necessary for trade and exploitation. The principle subsist in contemporary times as it serves to preserve the boundaries of colonies emerging as States.

The principles got enshrined in Article 6 of the General Assembly’s Declaration on the Granting of Independence to Colonial Territories and Peoples 1960 which states that “any attempt at the partial or total disruption of the national unity and the territorial integrity of a county is incompatible with the purposes and principles of the Charter of the United Nations.” This principle forced Africa countries within the borders stipulated for it at the Berlin Conference of 1885. A conference where no single African was present. A conference called by German Chancellor Bismarck to settle how European countries would claim colonial land in Africa and  a conference called to avoid a war among European nations over African territory.

The fact that this principle continued application have been restricted to Africa is not lost on scholars of neo-colonialism. It was first applied in Congo in 1960 (UN) and then to Biafra/Nigeria in 1967 (OAU), purportedly to maintain the colonial boundaries such that when a colony became independent, it succeeded to the boundaries that had been previously established by the former colonial power. The neo-colonial hue of the principle is illustrated by the adoption of the principle by OAU hegemon in 1964.

It is instructive to note that the Chamber of the International Court of Justice in the Land, Island and Maritime Dispute case (El Salvador v. Honduras) (Merits 1992) cautioned that “uti possidetis juris”  is essentially a retrospective principle investing as international boundaries administrative units intended originally for quite other purposes.” In the Frontier Dispute Case (Burkina Faso v. Mali : 1992), the court justified the application of the principle solely to African countries thus:

“In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course to preserve what has been achieved by people who have struggled for their independence and to avoid a disruption which could deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African states judiciously to consent to the respecting of colonial frontiers and to take account of it in the interpretation of the principle of self-determination of peoples.”

This argument is totally disingenuous as it seeks to use the struggle for independence by the peoples of Africa from colonial yokes to maintain a neo-colonial status quo. The question is why is self-determination good for Germans, Croats and Bangladeshi but not for Africans? To date, the only case in which the world acquiesce to self-determination on the continent is South Sudan and it took a fratricidal Africa’s longest civil war between the government in Khartoum and SPLA/M before the United Nation mandated referendum took place in 2011. The agreement for referendum was signed in Naivasha in 2005 but the war continues to the chagrin of many Africans.

The Organization of African Unity myopic embrace of the idea of the sanctity of colonial territories of member states was used against Biafra in Africa, even though Biafra had satisfied the essential elements of statehood in international law namely, population, government, permanence and a reasonable measure of effectiveness at least for the time it lasted. What it lacked is the recognition of such number states that would have strengthened its claim to statehood at international law. Biafra was only recognized by Tanzania, Gabon, Cote’d Ivoire, Zambia and Haiti.

Over 50 years after the Nigerian Civil War, the idea of an independent and sovereign Biafra would not go away. All through the period of military rule, the idea was swept under the carpet and jackboots of military dictatorship. The fourth republic revived it under MASSOB and now IPOB. As the saying goes, “nothing can stop and idea whose idea has come”. To which I add, it may be delayed but we need to confront it front and center. The idea by some current political fat cats in Abuja that we cannot discuss the terms of our union as a nation is ludicrous.

International law does not equate self-determination to secession. Secession is not the only, even a necessary or an appropriate means of realizing the right of self-determination in many situations and there is a strong presumption against secession in non-colonial situations. It is also true that secession is often sought by ambitious leaders who could not get their way through the will of the people exercised freely via the ballot box. The fact remains that neither Covenants nor any other provisions of international law prohibit minorities from seeking secession where the government no longer represents their interests. As Malone argued, it is only if self-determination cannot be realized within the established state, that secession may be necessary as a last resort.

The recognition by the international community of the disintegration of the Soviet Union, Yugoslavia and Czechoslovakia shows that any government which is oppressive to its constituents within its territory may no longer hide under the cloak of territorial integrity as a limitation on the right of self-determination. The recognition of Bangladesh from Pakistan, Singapore from Malaysia and Belize, despite the justifiable claim of Guatemala indicate that uti possidetis juris principle is dead in International law. It is no longer jus cogens!

In order for democracy to thrive, be consolidated and firmly entrenched anywhere, the constituent elements of any given country must evolve through dialogue equitable arrangements and rules of their association. Our current constitutions has a lacunae on the critical issues of self-determination of the peoples of Nigeria. The Federal Government of Nigeria must through meaningful dialogue with its constituent elements guarantee effective and equitable participation of all groups in the political process for it to be a responsive and functional federation of nationalities. Rights of ethnic majorities and minorities must be acknowledged and respected. An atmosphere of healthy competition and responsible sharing of resources that acknowledged derivative rights of indigenous peoples must be honored. This is the path to reducing the tendency towards extremist agitation for self-determination.

The war before the War: How the Voluble Nigerian Press "Sabre Rattling" Contributed to and Needlessly Elongated the Nigerian Civil War

 

Blogging Wale Adebanwi paper titled "The War before the War: The Press and the Nigerian Crisis

 The crucial role of the press in construction, amplification and resolution of societal crisis has been noted by scholars writing from different perspectives and honouring differing theoretical traditions. As the Nigerian military chiefs meeting in Aburi, Ghana in 1967 pointed out, the Nigerian press is at the vortex of politics and it is one of the few institutions that often set the tone and tenor of political debates and what is regarded as political reality.

Yet, the press organizations in Nigeria are representatives of dominant ethno-regional and/or ethno-religious interests contending for ascendancy in the nation's politics. The wars that these newspapers fight are almost always, fought on behalf of dominant ethno-regional or ethno-religious blocs, which was why the Morning Post the defunct federal military government owned newspaper pandering to the interests of the northern-military officers-led government, and the New Nigerian representing the North constituted the greatest impediments to national cohesion for Lt. Col. Odemgwu Ojukwu, the then military governor of the East; for the then head of state, Lt. Col. Yakubu Gowon, the Eastern Nigerian Outlook, owned by the aggrieved Eastern Region was the most guilty of this offence. For Lt. Col. Hassan Katsina, the military governor of the North, teh Outlook was the unbearable proverbial pain in the neck.

The press in Nigeria has always fought war, many of them ennobling, some purely enabling. From its inception in 1859 when Iwe Irohin was founded by Rev. Henry Townsend “to wage war against ignorance, illiteracy and paganism.” The press has often functioned as the “war machine” of disparate interests. Given this backdrop, it has also often been polarized along different lines, the most paramount of which is the establishment/anti-establishment polarity. From the period of Akitoye Ajasa’s Nigerian Pioneer  which a rival paper described as “a lick spittle” , because of its support for the colonial government, these polar-relations have defined the character of the press in Nigerian. However the polar-relations have been defined by and in turn have defined the power relations in the country.

Wale Adebanwi in this paper analyses media discourses in the period preceding the actual outbreak of hostilities –civil war-with a view of highlighting the signifiers of crucial issues that were at stake in the crisis. These signifiers codify the core issues, grievances and viewpoints that were absorbed, elaborated and amplified by the press. Before the first shot was fired, the press had fired several shots in different directions, which provided the impetus, in part, and reflected the other bases, for the civil war.

How did the press reflect the contending issues? What role did the press play? Did the media discourses set the tone and tenor of the crisis and the war that was to follow? What implications do the discourses of this era have for post-war political relations? Unless we look at the events preceding the war, particularly in terms of how they were represented in the media, we cannot fully understand the representations of the war in the post war period, marked as they are by the binary discourses of victory and loss-and the unceasing low-intensity hostilities that continue till the present day.

Wale Adebanwi uses four newspapers’ editorials, data and opinion pages published daily during the period of the Nigerian civil war and concluded that the press is complicit in the passion that characterized the pursuit of the manifold issues that faced the young nation of Nigeria post-independence as they inflated the claims and invested the “canon” of each of the opposing parties “too much sanctity, freedom, unity and morality. The discourses of each of the contending parties advanced by Morning Post (federal government), West African Pilot (East), New Nigerian (North) and Nigerian Tribune (West) editorials reflected more openly and without apologies, the interests they served and protected. He used qualitative methods to analyze no less than 1000 daily editions of the four newspapers with an average of 250 per newspaper. His data includes, 1,200 editorials, 30 front page stories and 5 opinion articles relevant to the crisis.

Wale segmented the discourses into 5 signifiers: Silent Signifiers, Signifiers of Unity, Signifier of fragmentation, Signifiers of Doom and Signifiers of Symbolic Insults.

Silent Signifiers

Silent signifiers are threads that link up other past issues to the matter at hand even without clearly drawing the link, but they are easily linked by the reader who is familiar with the past events.

For example, the idea of unitarism had been pushed vigorously by the West African Pilot (WAP) as articulated by its owner Nnamdi Azikiwe, before independence, and then abandoned it, as Zik joined Obafemi Awolowo and Ahmadu Bello  in the latter argument’s argument for a federal arrangement. However when Major-General Johnson T. Aguiyi-Ironsi, and Igbo came to power and revived the idea of unitary government, WAP picked up the battle again. Igbo elites post independence supported a centralized government to protect their predominance in commerce in any part of the country and give them the opportunities they crave wherever they are. Here is how WAP captures the introduction of a “unitary budget” for 1966-1967 fiscal year:

“Nigeria’s 1966-1967 Unitary Budget will go down in history as the only realistic fiscal approach to the national problems of this country since independence.”

WAP was silent on the fact that this fits in quite well with the Igbo agenda in national politics “since in fact before independence”. The paper asked the Ironsi government to go further by abolishing the word “federal” attached to Nigeria. If it does, the paper intones:

“the name of the military government of Nigeria will be written in gold as the only Go-Getter Government that brought unity to this country.”

Given the fact that the only other government that Nigeria had had was the northern-elite led Tafawa Balewa government led government, WAP needed not to state that that was not a “go-getter government” that failed to bring “unity”.

Given the tension building up in the country at the time, particularly in the north, which was then the most dissatisfied section of the country, WAP pointedly ignored this, as if everything was normal, as it reported when Ironsi began a country-wide tour-during which he was killed and his regime overthrown- “that we are marching to progress.

This silence was matched by the peculiar silence of the New Nigerian, which also seemed to ignore the tension-or rather, to speculate, did not want to let out the coup-cat from the crisis-bag! In all of July when the tension actually boiled over, NN concentrated on other issues.

Signifiers of Unity

All the newspapers were very elaborate about “Unity”, even though the discourses of “unity” were constructed in the service of the positions that they served. We see this in the way WAP and MP handled this issue of agitation for a Calabar-Ogoja Rivers State. WAP had a lead story announce to minorities in the Igbo East that they have hope of realizing their dreams. This was while Ironsi was still in power. But by the time Gowon came to power and the Igbo began their quest for a separate state, MP began a different discourse of unity:

“All we mean is that personal (read, Lt. Col. Ojukwu) clannish or sectional (read Igbo) interests should be considered subordinate to the overall interest of the nation.”

This preoccupation with fighting for unity did not prevent the MP for instance from somersaulting on its position. On the best political arrangement that will ensure unity in Nigeria, MP under Ironsi insisted that

“The country has suffered too much from tribalism. The people must unite. And the best and only way to achieve this is through a unitary form of government.”

In three months, soon after Gowon came to power, MP was first, reluctant to state categorically, and later, stated emphatically that federal arrangement was the best for Nigeria:

“(First) …Perhaps our unity lies through (sic) a federal system of government.
(Then)…But still, we are convinced that federalism could suit a society such as ours better than a unitary government.”
(Again)…As far as we are concerned, Nigeria needs a federation in which the center is strong enough to strong enough to sustain the nation…One thing is clear to the people of this country and that is their goal-which is the unity of the country.”

As stated earlier, “unity” meant different things to the different newspapers. Unity for the New Nigerian, in the wake of the mass exodus of the Igbo from the North, was a consolation that:

“out of this tragedy has (sic) emerged one great lesson and a guiding principle to generations to come. This that to live as a nation, the maturity of the mind, steadfastness and the appreciation of spiritual values are desirable attitudes, and that these qualities must for in the philosophy on which the new nation must subsist.”

It (NN) surmises further that this unity cannot be imposed by force but slowly and gradually built on goodwill.

For Nigerian Tribune, the release of Awolowo from prison marks the “beginning of new crusade of a new social and political force towards building of a Nigerian nation welded together by genuine unity and strength”.

For WAP, “everyone from every part of the country stands to gain by the spirit of oneness among the people.”

Unity did not, however necessarily translate to national unity, unity discourses were also unity of the ethnic groups/blocs in contention. Tribune for instance quibbled:

“It is high time the Yoruba took a firm stand on a number of issues confronting the region in particular and (the) uneasy federation in general.”

The NN stated that “our leaders at this weeks meeting must bear in mind that they have the support of some twenty-nine million people. They must not fail us.”

While the East was preparing for war in the late 1966, Morning Post stated “Anyone who condones or abets any such move as secession today must be regarded as an accomplice of those who want to sabotage the Nigerian union.”

This “unity” constituted the battle cry of the newspapers even as they pursued different goals in the crisis leading up to the civil war.

Signifiers of Fragmentation

Wale Adebanwi also found signifiers of a county united in its fragmentation. As much as newspapers helped the idea of unity, they also constantly reflected the deep divisions in the country, which lead to the signifiers of doom.

WAP seemed to have captured the polarized nature of the politics of that era when in its attack on an unnamed daily in ‘Northern Nigeria’ (apparently New Nigeria) it charged:

“(I)s trying hard to introduce polemics into the politics of Nigerian again. We have in mind an article published in the 19 April issue of that paper which called for the abrogation of unitarism as a tenet of Nigeria’s reconstruction program … At this stage in our national metamorphosis, we regard it as calculated sabotage or incitement for anybody to do any act overt or covert to engender tribal bitterness or sectional ill feelings. …”

For much of the time, the newspapers also took on one another over some of the crucial issues at stake. For instance, when a British envoy visited the north, New Nigerian expressed the hope that:

“Sir Francis (the British envoy) will learn something of the feelings and opinions of the North regarding international and other issues in which Britain is involved and covey these to the British and if the North has strong feelings on various matters which feature in the headlines, this is the opportunity to pass them on.”

In response, WAP argued vehemently against the internalization of the crisis at this point. It pointed out that Sir Francis is not responsible for reporting feelings in the North to the Head of the Military Government nor is the North the responsibility of the British government. WAP argued further that the editorial exposed where NN stood on the crisis and who its ‘masters’ were. Subsequently, the South based paper called

“Upon the good people of Nigeria who have welcomed the Army take over (sic) to see this issue in its true light and watch out… The only interpretation therefore is that the British envoy is being invited to hear their (Northerners’) grievances, process them and report to Britain. Surely, Britain is not the governing authority unless there is more to it than meets the eye.”

For the NN, the day of mourning for Easterners killed in the pogrom in the north was something “every reasonable and right-thinking Nigerian would loathe’. It asked what while the East mourned those it lost in the aftermath of the July 1966 coup, was it not also important to mourned those who died during the mad outrages of January 1966 (in the Igbo led coup).

WAP in turn advocated that the federal government imposed a collective fine taxable people of the north to ensure that the sum of 27,000 pound sterling was paid to the Easterners displaced by the pogrom in the north.

During negotiation at Aburi in Ghana, the NN preoccupation was not the unity of Nigeria, rather it pressed the leaders of the North not to “seek concession and reach compromise purely for the sake of unity that cannot stand the test of time.”

WAP was diametrically opposed to this stand as it urge the delegates to recognize that the first essential is for an agreement to be reached unanimously on the form of association that can hold the various components of the federation together with a minimum of friction.

The Morning Post will have none of all these pandering to accommodate the grievances of the East. Long before the federal military government thought of taking first a police action, then a small scale military action, and later a full scale military action against the Eastern regional government, MP stated that it felt

“compelled to repeat the call we made a few weeks ago that the government should be ruthless in maintaining the peace in the country.. The Supreme Commander (Gowon therefore should) go all out to crush the saboteurs.”

Signifiers of Doom

The newspapers during this period were also given to predicting doom as consequence either for an action or inaction, for or against the interests that each of the newspapers served.

MP argued that disintegration would “spell disaster for Nigeria… and ends in everlasting sorrow.”

New Nigerian echoes the coming-doom thesis, arguing that the nation trembles on the brink of anarchy and despair. In September 1966, NN states that “A full scale civil war of the most awful kind is a prospect that must be feared and avoided at all costs.”

The Nigerian Tribune (NT) states “ the nation is sitting on a tinderbox.” As tensions rose with discussions over the withdrawal of troops to their region of origin (particularly northern troops in the West), NT argued that “What we (WEST) needs is a crash program to recruit and train not less than 4,300 Yoruba within a few weeks. This will bring the quota of the Yoruba in line with those of other ethnic groups.” NT is emphatic in its call: “Let the Northern troop go.”

When Ojukwu stated the East would not secede “unless it is pushed” , NN states “What is the East up to? Does she mean what she says or is she playing for time? We can’t understand why the East is so apparently intent to inflict more hurt upon itself.

Few months later, NT asked the federal government to face down the East quickly: “if we have the force and the will to bring the East into line by armed intervention, let it be done now with dispatch.” Nigerian Tribune considers both the Hausa north and the Igbo East as potential foolish outsiders who  were contriving to invoke doom on Yorubaland. It further states that Yorubas must not allow people on the lunatic fringe to involve them in the present mass killings and molestation.

WAP emphasized during these difficult times that “until the East is pacified, the question of considering the future association of Nigeria is out of the question.”

Signifiers of Symbolic Insult

Central to the foregoing discourse were strong negative or abusive words and images of the OTHER.

Shortly after the ascendancy of Gowon, WAP wondered at the “strange nationalism” of the NN, which had under Ironsi trumpeted “domination” by the Igbo and was now no longer concerned with domination.

“At one time, domination stunt used to fill the pages of some of these newspapers… These days, domination stunt disappeared ..given way to the kind of oneness desired by the paper.”

The WAP even speculated under Ironsi, given NN’s attitude towards the regime, that “government might be provoked to take precipitate action against it.”

When MP and Daily Sketch (owned by the central ruling party’s ally government in the West) attacked each other in late 1966, WAP described them as “birds of the same nest” which had played identical roles at all material times in the crises that have torn Nigeria apart.” The Pilot states that this vicious circle of government newspapers contains germs of the their own destruction and maybe soon canceling out themselves.

All the rival newspapers were guilty of exaggerating little incidents and creating imaginary stories to suit them. In reference to the famed elocution of Oxford-educated Ojukwu, MP warned that “when all the English of Oxford has been spoken and the British encyclopedia exhausted, the people of Nigeria will still down to finding how best they can live together.”

NN excoriated Pilot for its type of journalism “such an information medium should hag its head in shame for helping to tear the country into pieces.” In a veiled reference to the North which had a preponderance of beggars, the Pilot stated that whether the East got assistance or not after the pogrom, it would survive, since Easterners are not a race of beggars.”

Conclusion

It was clear in the period under review that these journalists saw their media as representatives of the warring regions. Perhaps one major indicator of the acrimonious battle was a two part front page editorial by the Tribune after the collapse of the First Republic titled, “Scrap the Sketch 1 & 2”

The NN put the war before the war in a sharp focus when it noted with unusual candor that even the NN is conscious of its fall from grace, but it has always sought to find the truth. It has not always succeeded … but having said that, let us acknowledge that the Nigeria’s press-even the government-controlled ones- can do much more to restore peace in the country than they are doing.”

As William Connolly observes, drive to wholeness becomes destructive for these newspapers when they all obsessively interpret the cultural identity they participate in to be the best available copy of a true model and place that model above the threshold of legitimate interrogation in politics.” What is required is for us and the organizations we represent is to challenge the reductions, simplifications and selective mobilizations of resentment through which self-proclaimed partisans of the ethnic, group or regional bloc appropriate the most potent symbols of morality, faith virtue and belonging.”

Will history repeat itself? Let us take a page of lesson from history.