“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.
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