Femi Falana, SAN, in this piece examines the legal dimensions of Bakassi peninsula residents self determination threat
BY FEMI FALANA, SAN
THE contemporary boundary problems that exist between Nigeria and Cameroon particularly over the ownership and control of Bakassi Peninsula can be traced primarily to colonialism, the scrabble for African territories and the creation of artificial boundaries in Africa.
In the scramble for Africa which started with the Berlin Conference of 1884-85 and was completed by the turn of the 20th century, the colonial masters arbitrarily created several latitudinal and longitudinal boundaries using physical borders such as rivers, hills, mountains, natural vegetation and human fiat to establish artificial nation-states without due regard to the wishes and aspirations of the local communities.
According to Alberto Alesina, William Easterly and Janina Matuszeski in their publication entitled Artificial States (2006), there are three ways in which those who drew borders created problems; “First they gave territories to one group ignoring the fact that another group had already claimed the same territory. Second, they drew boundary lines splitting ethnic (or religious or linguistic) groups into deferent countries, frustrating national ambitions of various groups and creating unrest in the countries formed.
“Third they combined into a single country groups that wanted independence”. The scholars further posited that the results of artificial boundaries can be disastrous in that “Artificial borders increase the motivation to safeguard or advance nationalist agendas at the expense of economic and political development”.
It is a fact that most African tribes are cut by political border lines and culturally homogenous ethnic groups are sometimes divided between different countries and some cases also ethnic groups that share no cultural on ethnocentric relationship are forced to form a single country. While it should be noted that this phenomenon is common in many parts of the world where artificial boundaries were created, Africa appeared to be the most affected and the resultant effect has been constant conflicts, legal challenges to boundary demarcation and several other cartography related clashes.
In Nigeria, the Southern and Northern protectorates were amalgamated in 14 by Lord Ludgard to form the federation of Nigeria with over 250 ethnic groups. Despite this, the ethnocentric survey of Nigerian international boundaries would reveal that several of these ethnic groups spilled over to Nigerian neighbouring states of Republic of Benin where you find a good presence of Yoruba in the southwest and Hausa in the northwest, Niger, Chad and Cameroon respectively..According to Dr. Wondwosen Teshome in “Colonial Boundaries of Africa: The Case of Ethiopia’s Boundary with Sudan” quoting Loisel (2004: 4), citing Miles (1994: 68), these “borders were drawn essentially according to the geopolitical, economic and administrative interests of the colonial powers, often taken into account at a global scale. The most often cited example is that of the division of the Hausaland, between today’s Niger and Nigeria. The Franco-British treaties of 1904 and 1906 redrew the border in favour of the French side, in exchange for France’s renunciation of fishing rights off the coast of Newfoundland”.
The case of the boundary between Nigeria and Cameroon in the eastern part of the country has a more complex dimension. After the treaty of Versailles in 1919, the German territory of Kamerun was divided between French and the British League of Nations mandate with the French taking a larger portion of the territory. The British mandate comprised Northern and Southern Cameroon and were ruled directly from Nigeria though they were not legally and politically speaking, territorial part of Nigeria.
At this juncture, I wish to submit that the treaty of 1919 like the Cession Treaty of Lagos of 1861 is illegal in every material particular. The natives whose landed property were seized or confiscated were not involved in the “negotiations” while the Kings who ceded them did not have the authority or consent of the owners. Under the doctrine of nemo dat quod not habet recognized in English and French laws, the transfer of the territories was illegal. In Amodu Tijani v. Secretary, Southern Provinces (1915) 3 NLR 24 the Plaintiffs successfully challenged the acquisition of their land in Lagos on the ground that King Docemo (Dosumu) had no right to alienate it under native law and custom.
The Privy Council held that “a mere change in sovereignty is not to be presumed as meant to disturb rights of private owners, and the general terms of a Cession are prima facie to be construed accordingly”. See also Oduntan Osinowo v. Attorney-General (1912) 2 NLR 79. The illegality of the ceding of Bakassi Peninsula by the British colonial regime and the Yakubu Gowon military regime ought to have been questioned at the International Court of Justice. But Nigeria’s defence was erroneously anchored on the legal validity of the treaty. The ruling of the Court could not have been otherwise in the circumstances.
By 1946 following the dissolution of the League of Nations, these territories were re-designated as trust territories. Thus, the British portion of the Cameroons was placed under the control of the British government by virtue of a Trusteeship agreement between the United Nations Trusteeship Council and Britain.
The reason why the territory was not given to Britain permanently to form part of Nigeria was because the United Nations envisaged that the territory would eventually become an independent state.
Following the 1953-54 constitutional conferences which eventually introduced federalism into Nigeria, they had representatives in the Eastern parliament even though, by that time also, the Southern Cameroon had began the agitation for autonomy from the Nigerian federation. In 1953, the British government granted their request as a result of which the Southern Cameroon became an autonomous region.
However, when Nigeria and Cameroon were preparing for their independence, the people of Southern Cameroon were faced with three posers: whether to join Cameroon, Nigeria or just to remain as an independent country all in a bid to properly determine where their interests would be best served.
It was against this background that the United Nations, in 1961 conducted a plebiscite where they put two alternatives in the ballot box-to be with Nigeria or Cameroon.
They were not given the option to form their own country and this could be attributed to the negative influence of Britain at the UN opposing such a move. Be that as it may, the Northern Cameroon voted to be united to Nigeria while the English speaking Southern Cameroon voted to be part of the French Cameroon.
The understanding of this political history of the Eastern territorial boundary of Nigeria is significant to this discussion taking into consideration the fact that Bakassi is arguably believed in some quarters to be part of the Southern Cameroon and there were insinuations that the people of Bakassi also participated in the plebiscite. Some people even argued that they also voted to be part of Cameroon.
For instance, Dr. Nowa Omoigui while reacting to an article entitled “Gowon, the Queen and the stolen bronze”, by Reuben Abati posited inter alia that “during the Cameroon/Nigeria plebiscite of 1961, 21 polling stations were physically located in the Bakassi peninsula. UN records clearly show that approximately 73% of the people living there AT THAT TIME voted NOT to be administered under independent Nigeria.
This is fairly easy to confirm either from the UN itself or Ambassador BA Clark who was Deputy Permanent Secretary External Affairs in 1970/71. The precise number of polling booths and their exact locations is a matter of public record. It is fair to assume that the vote was binding on future generations in the area.
The question of whether it could have been different – as was the case with Northern Cameroons – is one of the more fascinating but unexamined aspects of Nigeria’s history from that period. Whether the vote meant that the people of Southern Cameroons should form their own country or be fused with French Cameroun is another curious angle that has recently surfaced”.
If that was the situation however, one wonders why the area was not immediately annexed to Cameroon at the time when the Southern Cameroon was joined with French Cameroon or could it have been that the United Nations did not Bakassi to form part of the French Cameroon at the time given the territory’s cultural homogeneity with Nigeria? For instance, one of the legal problems that Gowon was confronted with was the grey area in the Anglo-German Treaty as it affected the Bakassi Peninsula; the dispute about the OFFSHORE border and precise delineation of the approach channel to the Calabar Port.
According to the treaty, the navigable portion of the channel was to lie wholly within Nigeria while the peninsula itself was to lie wholly within Cameroun.
Be that it may, when Gen. Yakubu Gowown was confronted with the issue off Ms- ascendancy to power, he could have done either of two things; first, call on the UN to conduct another plebiscite to determine the fate of the people of Bakassi or move to cede the territory to Cameroon in accordance with the 1961 plebiscite. He chose the latter for obvious reasons; the country had just survived a three year civil war in which his authority as head of State and Commander in Chief was very heavily battered thereby making it politically inexpedient to undertake another such a risk instead of healing the wounds of war , secondly, he relied on the opinions of legal scholars and experts including senior public officials from the office of the Federal Ministry of Works who were in charge of federal surveys and responsible for cartographic surveys of Nigeria and thirdly, even before, Gowon called for legal opinion on the status of Bakassi, there was also a suggestion that the United States government at the time also viewed the territory as belonging to Cameroon.
However, by far the most weighted consideration by Gowon was the legal opinion which was prepared in 1970 by Prof. Teslim Olawale Elias who argued amongst others that given the legal precedents and the role of Cameroon during the Civil war, Gowon should cede the territory to Cameroon. I also understand that Gowon was influenced to take the decision by a “well thought out formal brief from then Commissioner for External Affairs, Okoi Arikpo, (who was of South Eastern State origin), in which he clearly stated that Nigeria had no legal claim to the Bakassi peninsula”.
Hence, given these circumstances, Gen Gowon ceded the territory to Cameroon and executed an agreement with President Ahidjo of Cameroon. Again, in the words of Dr. Omoigui, “the issue of Bakassi itself was sealed by the Ministry of Justice legal opinion, supported by Okoi Arikpo of External Affairs, based on decades of legal and political precedent.
If the people of the Bakassi peninsula had either boycotted the Cameroon plebiscite altogether or had voted along with the rest of Southern-Cameroons-to stay in Nigeria, the matter would have been much less complicated although it could still have been an internal border problem between states….. .General Gowon relied on experts from the Federal Survey Department in the Ministry of Works on what the offshore delineation of the approach channel to the Calabar Estuary should be – up to the 3-mile limit.”
It is however, arguable whether Gen Gowon had power to sign such an agreement with Cameroon without the approval of tl}£;Su.preme Military Council.
The ownership of the territory continued to generate controversies between Nigeria and Cameroon for several years that followed until 1994 when Cameroon approached the International court of Justice on the dispute and requested for a ruling “relating essentially to the question of sovereignty over the Bakassi Peninsula”, which Cameroon declared was under the control of Nigeria. Cameroon also asked the ICJ to settle the maritime boundary between the two countries.
At that time, Nigeria had an opportunity to decide whether or not to join issues with Cameroon in the World court but the leadership of the country took a rather fatalistic approach to the matter by not only surrendering to the jurisdiction of the Court, but also agreed to be bound by the decision of the ICJ.
Hence, it was therefore a fait accompli when On 10 October 2002, citing a 1913 agreement between Germany and the United Kingdom, as well as the Thornson-Marchland Declaration of 1929-1930, the ICJ decided to award sovereignty rights of the Bakassi Peninsula to Cameroon. In the opinion of a learned school of thought, Old Calabar, encompassing the Bakassi Peninsula, was, in 1913, a protectorate and not a colony of Great Britain.
Writing on the judgment, a legal scholar Chris Akiri commented that a “protectorate” signifies authority assumed by a strong state over a weak or underdeveloped one, without direct annexation, in contradistinction to a “colony”, or a land settled by people from another country, to whose government it is, in some degree, subject. In view of this, according to this school of thought, Britain had no legal right to cede the Bakassi Peninsula to Germany in 1913, having regard to the time-worn legal maxim – nemo dat quod non habet (he who hath not cannot give)”.
The decision, which generated a lot of sharp criticisms across the country and protests from the inhabitants of the peninsula who felt short changed by the Government of Nigeria’s lack of consideration to their political and cultural ties to Nigeria, was followed by yet another agreement between Nigeria and Cameroon on the process of implementation of the judgment.
The treaty popularly known as the Green Tree Agreemnt was signed between the President of Cameroon and the then President of Nigeria, Chief Olusegun Obasanjo in 2006 to implement the judgment of the International Court of Justice. Article 1 of the Agreement states that : “Nigeria recognises the sovereignty of Cameroon over the Bakassi Peninsula in accordance with the judgment of the International Court of Justice of 10 October 2002 in the matter of land and maritime boundary between Cameroon and Nigeria.
Cameroon and Nigeria recognize the land and maritime boundary between the two countries as delineated by the Court and commit themselves to continuing the process of implementation already begun.” With the Green Tree Agreement which President Obasanjo signed with Cameroon without involving the National Assembly in accordance with the Constitution of Nigeria for ratification of Treaties finally put to rest, any attempts to revamp any claims Nigeria or any part thereof may have over Bakassi. :;
Having said that however, it is important to note that the Green Tree agreements imposes obligations on both countries on the general welfare of the indigenes of Bakassi failing which the people of Bakassi will be at exercise their right to self determination in accordance with the African Charter on People and Human Rights and other international treaties and protocols for the protection and recognition of the rights of indigenous people to self determination.
A cursory review of the salient provisions of the Green Tree Agreement clearly shows that both countries have clearly defined and guaranteed responsibilities and obligations towards effectively providing for the welfare of the inhabitants.
The Agreement provides that ” Nigeria must ensure that those citizens who opted to resettle in Nigeria are provided with the necessary means and measures to do so” while the obligations of Cameroon are clearly stated in Article 3 which without doubt is self explanatory. Article 3 of the GTA provides:
1. Cameroon, after the transfer of authority to it by Nigeria, guarantees to Nigerian nationals living in the Bakassi Peninsula the exercise of the fundamental rights and freedoms enshrined in international human rights la”w and in other relevant provisions of international law.
2. In particular, Cameroon shall:
(a) not force Nigerian nationals living in the Bakassi Peninsula to leave the Zone or to change their nationality;
(b) respect their culture, language and beliefs;
(c) respect their right to continue their agricultural and fishing activities;
(d) Protect their property and their customary land rights;
(e) not levy in any discriminatory manner any taxes and other dues on Nigerian nationals living in the Zone; and
(f) take every necessary measure to protect Nigerian nationals living in the Zone from any harassment or harm.
“Recognizing the necessity of a smooth transition of the administration of Bakassi from Nigeria to Cameroon”, the GTA also establishes a “Follow up Committee” in Article 6 which provides:
1. A Follow-up Committee to monitor the implementation of this Agreement is hereby established. It shall be composed of representatives of Cameroon, Nigeria, the United Nations and the witness States. The Committee shall monitor the implementation of the Agreement by the Parties with the assistance of the United Nations observers of the Mixed Commission.
2. The Follow-up Committee shall settle any dispute regarding the interpretation and implementation of this Agreement.
Obviously as stated above, the Nigerian government is not interested any longer in reopening the case with Cameroon before the ICJ even though, tl^e Nigerian ^government has an opportunity to do so before the twilight of October 10, 2012 when the judgment will become final and irredeemable and Nigerians who opt to remain in Bakassi can only do so as foreigners.
However, if both countries fail to perform their obligations under the Green Tree Agreement by providing for the relocation and general well being and protection of the local inhabitants, the events after October 10, 2012, can open a new vista of renewed agitation for self determination and declaration of independence by the local settlers.
This is because, while the ICJ judgment may have awarded their land to Cameroon, the Court has not taken away their rights to be free from oppression and their inalienable rights for self determination in accordance with various international Treaties. Suffice it to say that at the moment, crucial issues and questions relating to orderly transition and economic empowerment and resettlement of the people of Bakassi, particularly those who have opted to return to Nigeria have not been adequately addressed by the Federal Government of Nigeria. •
The recent judgment of the Supreme Court in the case of Attorney-General, Cross River State v. Attorney-General, Akwa Ibom State
which has declared that Cross River State is no longer a littoral state has reopened the controversy over the “ownership” of the Bakassi Peninsular. Having been abandoned by the Federal Government of Nigeria the people of Bakassi have declared their independence. Contrary to the pronouncement of the President of the Nigerian Bar Association, Mr. J.B. Daudu (SAN) that the action is treasonable I wish to submit, without any fear of contradiction, that the Bakassi people have “the unquestionable and inalienable right to self determination” under Article 20(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Laws of the Federation of Nigeria, 2004.
Instead of criminalizing the action of the frustrated Bakassi people the Federal Government may wish to enter into dialogue with the genuine representatives of the Bakassi people. More so, that the Green Tree Agreement has not been domesticated as required by Section 12(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended which provides that “No treaty between the Federation and 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.”