It is no longer news that the federal government foreclosed any attempt to seek the review of the judgement of the International Court of Justice siting at The Hague over the disputed Bakassi peninsula on the grounds that the case was closed since 10th October 2012. But The notion that there was no point crying over spilled milk, fails to address various critical fundamental issues and the question of lapses by Nigerian government officials in foreseeing moves by Cameroon and France taking preemptive action and other measures that could have mitigated the country’s loss in the embarrassing situation. Surely, Nigeria suffered a demotion of prestige and status for having its face rubbed in the mud by Cameroon, a situation worsened by the fact that People of the old eastern Nigeria still nurse the feeling that General Yakubu Gowon ceded Bakassi to Cameroun as a negotiation in order to win the Biafra war.
What is more infuriating to some was the invitation by President Jacques Chirac of France to President Olusegun Obasanjo to come over to Paris for a parley with President Paul Biya of Cameroon with a view to soliciting the agreement of both parties to abide by whatever decision the Court handed down. If there was any time to be suspicious of the French connection, it was at that point in time but our former President Obasanjo ignorantly agreed to play ball. Nigeria ought to have even smelt a rat in light of the nationality of the President of the ICJ and other surrounding circumstances.
Richard Akinjide, a former Nigerian Attorney-General and Minister of Justice described the decision of the ICJ as “50% international law and 50% international politics”, “blatantly biased and unfair”, “a total disaster”, and a “complete fraud”. He also said that as far as the case between Nigeria and Cameroun was concerned, the dispute was really between Nigeria and France. Cameroun was just the proxy for France. There is no doubt that in law and in fact that Bakassi belongs to Nigeria because that is supported by a lot of documentary evidence, which were tendered before the court. But which the court ignored…You don’t ask somebody to transfer to you what belongs to you. He further said “as far as I’m concerned the judgment of the ICJ is a complete fraud and unacceptable…If indeed Bakassi belongs to Cameroun, how can Camerounians be asking them to transfer it to them”.
However, the judgment was “a rape and unforeseen potential international conspiracy against Nigerian territorial integrity and sovereignty” and “part of a Western ploy to foment and perpetuate trouble in Africa”.
But from my own point of view, it is unfair for the ICJ to give such judgment without considering the option of referendum or plebiscite for the people of Bakassi. The ICJ judgment on the Bakassi Peninsula and its inhabitants is repugnant to the law of natural justice, equity and good conscience. How can you decide the fate and life of another man without seeking for his opinion and history? The people of Bakassi have the right to self-determination. We believe the worst thing you can do to any man in this civilized world of today is to deny him his fundamental human rights. The people of Bakassi have been denied the rights to “Self-determination”. They were not put into consideration or even given the chance to indicate where they wish to belong even the United Nations, of which the ICJ is an organ, would place sufficient importance on the people of Bakassi; they would have ordered a plebiscite to, at least, give credence to the rights of self-determination, which is one of the principle upon which the United Nations is built.
The ICJ should not have ceded the people of Bakassi and their land in Nigeria (which is their ‘natural birthplace’ and where their ancestors are buried), to Cameroon. The question here that: Is it not appropriate and important for the ICJ to put referendum into consideration? Was it not necessary for the ICJ to initiative a more embracing diplomatic approach that would give the Bakassi people the chance to decide their destiny for themselves? Rather than seat in their court room at The Hague and distort the future generations of a people with a mere stroke of the gavel.
According to international best practice, consent of people residing in a territory (by way of plebiscite), is a condition-precedent to any transfer or change in title over the territory that they occupy. Even when the fate of Northern and Southern Cameroun were to be determined, a plebiscite was conducted in 1961, under which Southern Cameroun opted to join Cameroun, while Northern Cameroun opted to join Nigeria. That could be a case, which confirmed what is called Right to Self-Determination. I am of the view that it is still part and parcel of international best practices that inhabitants of the territory are consulted and allowed to make their own choice.
From pure normative perspective, the best procedure for establishing a state boundary is a referendum conducted among the interested population under international supervision.
Historically, referendum has often been used to justify boundaries in various quarters.
For example, Norway’s decision to separate from Sweden in 1905 was made by the Norwegian people in a referendum in which 99.9 per cent voted for independence, a powerful expression of national pride. Similarly, Iceland held a referendum on becoming independent from Denmark. Spain’s adoption of democratic reform in the late 1970s after the death of the dictator Franco was approved by the people through a referendum. Likewise, new constitutions have come into being through referendums in Denmark, France, and Ireland. The decision to move to multi-party politics has been taken by referendum in some African countries, such as Gabon and Malawi. In each case, it has been important for the legitimacy of the decision that this step towards independence or democracy has been taken by the people directly and not by the political elite.
Also the sovereignty referendum on the Falkland Island/Malvinas 2013, the most recent were
The Scottish independence referendum was a referendum on Scottish independence that took place in Scotland on 18 September 2014.
The independence referendum question, which voters answered with “Yes” or “No”, was “Should Scotland be an independent country?” The “No” side won, with 2,001,926 (55.3%) voting against independence and 1,617,989 (44.7%) voting in favour.
Even Crimean status referendum, 2014 was a referendum on the status of Crimea held on March 16, 2014, by the legislature of Autonomous Republic of Crimea as well as by the local government of Sevastopol, both subdivisions of Ukraine at the time. The referendum asked the people of Crimea whether they wanted to join Russia as a federal subject, or if they wanted to restore the 1992 Crimean constitution and Crimea’s status as a part of Ukraine.
But in the case of Bakassi dispute, the People were never given the chance to exercise their right of self-determination.
The right of self-determination is a human rights basis of the United Nations and its purposes and a key concept in the most important international Covenants and Charters.
It is also an ius cogens (compelling law) norm, the highest category in international law. Take for example various provisions of international law that gives recognition and legitimacy to right to self-determination: Article 2 of the United National Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly Resolution 1514(XV) of 14 December 1960:“All Peoples have the right to self -determination, by virtue of economic, social and cultural development.”
The International Covenant on Civil and Political Rights (United Nations, 1966), Part I, Article 1: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 2: All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. Article 3: The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
Programme of Action for the Full Implementation of the Declaration on the Granting of independence to Colonial Countries and Peoples (General Assembly Resolution 2621(XXV) “Reaffirming that all peoples have the right to self -determination and independence and that the subjugation of the peoples to alien domination constitutes a serious impediment to the maintenance of international peace and security and the development of peaceful relations among nations”
United Nations Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Chapter of the United Nations (General Assembly Resolution 2625(XXV) of 25 October 1970): “By virtue of the principle of equal rights and self -determination of peoples enshrined in the Chapter, all peoples have the right freely to determine without external interference, their political status and to pursue their economic, social and cultural development, and every state has the duty to respect this right in accordance with provisions of the Charter.”
Conference on Security and Co-operation in Europe (CSCE), Helsinki Final Act, August1, 1975:“By virtue of equal rights and self-determination of peoples, all people always have the right, freedom to determine, when and as they wish, their internal and external political status, without external interferences and to pursue as they wish their political, economic, social and cultural development.”
African Charter of Human and Peoples Right, 1981: Article 19- “(2) Nothing shall justify the domination of a people by another.” Article 20 – “All peoples shall have right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen”.
Vienna Declaration and Programme of Action, 1993: “All peoples have the right to self -determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development.”
Organisation for Security and Co-operation in Europe (OSCE), Charter of Paris for a New Europe, 1994: “We affirm the equal rights of peoples and their right to self -determination inconformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of states.
Furthermore, the scope and content of the right to self-determination has been elaborated upon by the UN Human Rights Committee and the Committee on the Elimination of Racial Discrimination and numerous leading international jurists.
Therefore, in the light of these aforementioned premises, it can be concluded that the ICJ ruling in simply a Violation of the Human Right of Self-Determination of the people of Bakassi and various positions of international law.
On the implementation of the Controversial Green tree Agreement
It is important to note that the transfer of Bakassi was a gross violation of Nigeria’s Constitution, which had failed to realize that a portion of her land and its people has been given out in charity; and that the treaty was not submitted to the National Assembly for ratification or domestication before it was given effect, as envisaged by the Constitution. Analysing the legal effect of the position of President Muhammadu Buhari Speaking on Wednesday July 29, during an interactive session with Nigerians living in Cameroon, says Nigeria will abide by the ruling of the International Court of Justice (ICJ) on the Bakassi Peninsula and said his administration will ensure the faithful implementation of the Green Tree Agreement, which regulates the ceding of Bakassi to Cameroon.
Buhari should not forget the fact that the Nigerian Senate rejected the transfer of Bakassi to Cameroun on 22nd November 2007, since the Green Tree Agreement ceding the area to Cameroon was contrary to Section 12 (1) of the 1999 Constitution. Regardless of this, the territory was formally transferred to Cameroon on 14, August 2008 by the Obasanjo administration.
Although, Section 12 does not give the National Assembly any legal role in the ratification of treaties (or treaty – making), but rather involves it in the implementation (or domestication) of treaties. Ratification is the process by which a State (in this case Nigeria) establishes in the international plane its consent to be bound by a treaty (See article 1 of the Vienna Convention on the Law of Treaties 1969).
While the implementation (or domestication) is the process by which a treaty validly entered into by a State is enacted (or domesticated) as legislation so it can have effect within the domestic plane. Section 12 applies to the implementation (or domestication) of treaties and states that:
“No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”.
The side explanatory note of section 12, along with item 31 of the Exclusive Legislative List, makes it clear that the National Assembly’s legislative role is important to the implementation of treaties.
Another scenario is that the said Vienna Convention on the Law of Treaties as contained in Article 46(1) where it states: – “A State may not invoke the fact its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”
Article 46 (2) further presented some clarifications to the above provisions: – “A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.”
These provisions of the Vienna Convention on the Law of Treaties equally present Nigeria with an option to challenge a violation of its internal procedures for legitimising treaties/agreement which the Green Tree Agreement of 2006 did not observed. Under the Nigerian Constitution the Treaty cannot apply, except and unless and only to the extent that such a treaty has been transformed into the Nigerian law. Since the Treaty has not been approved by the (Nigerian) National Assembly for the domestication, Nigeria cannot carry out the provisions of that Agreement. The treaty ought to have been transformed into Nigerian law before the Nigerian government implements it. That is why the residents of Bakassi feel aggrieved that the necessary measures had not been taken before their territory was transferred to a foreign country.
Several reports have noted with dismay the level of neglect, abandonment and inexplicable maltreatment of the indigenous people of Bakassi after ceding their land to Cameroon by the Nigerian Government under the so called Green Tree Agreement signed by the Olusegun Obasanjo Administration on June 12, 2006 in New York.
Despite the fact that Nigerian government has accepted the fait accompli of the loss of the territory, there are still two options open to Nigerian Government to explore:
The first option is to present to United Nations to avail the window that will allow the people of Bakassi to carry out a referendum and decide for themselves where they want to belong in conformity with international law and all principles of Rights to self-determination. There is need for the Nigerian Government to repudiate the Green Tree Agreement and reclaim the Bakassi Peninsular. Or better still; the ICJ decision ceding Bakassi to Cameroon should be reversed. Not until the people of Bakassi are accorded the necessary opportunity to exercise their right of self-determination, the ICJ rulling on Bakassi, will remain unfair, unjust, cruel and a gallant rape on the rights and destiny of Bakassi people.
The Second option According to Professor Akin Oyebode, a professor of International Law and Diplomacy Unilag during the 2nd Year Anniversary Lecture of CrossRiverWatch at the Transcorp Hotel in Calabar on August, 27 2014., He said “The Nigerian government can make a monetary offer to Cameroon in a bid to re-purchase the peninsula, a situation that is not without precedence in history”.
Bakassi should be revisited because it is about the people and not so much about oil. Unfortunately, it is oil that is much talked about. But the people are very important.
It is also to be pointed out clearly that there is no way Cameroun can utilise the Bakassi resources without taking Nigeria and Nigerians’ interest into account. Because, if they want to lay claim to the continental shelf under the law of the sea, their claim would have to overlap the claim of Nigeria because looking at the geography, at the map of Cameroun, their shelf locked as it is in international law; they don’t have enough room to utilise or to lay claim to 200 nautical miles, which international law grants to them. This is because Nigeria too has a claim of 200 miles, so there is going to be a conflict. Therefore, Nigeria might propose to them to engage in ‘unitisation or joint development zone’ for the exploitation of the resources. And bring them within the arrangement that we have established with country like Equatorial Guinea and Sao Tome and Principe under which Nigeria and say Equatorial Guinea and Sao Tome and Principe will jointly exploit the resources and the proceeds are shared on 60:40 ratios. In other words, this is how to protect the interest of Nigerians and at the same time allow Cameroon to benefit from the resources endowed on the territory.
Advise to the National Assembly
I am also using this opportunity to advocate for the section 12 of the Nigerian Constitution to be immediately amended without any delay, to incorporate a role for the National Assembly (preferably the Senate) in the ratification process of treaty in a manner similar to what is obtainable in the USA and Ghana.
However, until such amendment is made to the Constitution, the fact remains that the executive, through the President, will continue to unilaterally make and ratify treaties without the input of the National Assembly. As this amendment will futuristically act as a check and balance in avoiding similar erroneous controversial situation of the green tree agreement.