WHEN Prof. Walter Ofonagoro told the audience at the 12th brainstorming that the April 1893 boundary between Nigeria and Cameroon at the Rio Del Rey estuary was suppressed at the International Court of Justice to achieve a dubious aim of giving out Bakassi peninsula as war booty to Cameroon, not a few persons were convinced.
But in this detailed expose on the Bakassi question, the Ivy League Scholar and Professor Emeritus at the Columbia University explores his knowledge of European History and Africa’s experience from colonialism to the age of globalisation where the strong continues to prey on the weak.
The central issue is the sovereign right of Bakassi people which is at the mercy of forces beyond the control of the people whose home is the subject on international political intrigues and perfidy.
Vanguard newspaper obtained the exclusive copy of Professor Ofonagoro’s paper entitled: Bakassi Sovereignty and the Legal Defence in the Nigeria/Cameroon Boundary Dispute.
At the International Court of Justice, the Hague, March 28, 1994 –October 10, 2002, which we hereby present to our readers as part of our contribution to the search for justice in the Bakassi peninsula saga
IN the Beginning: A great deal has been written about the judgment of the International Court of Justice, delivered on October 2, 2002, in the boundary and territorial dispute between Nigeria and Cameroon over the Bakassi Peninsula of Nigeria. In that dispute, Cameroon instituted legal action against Nigeria at the ICJ on March 28, 1994, claiming ownership of Bakassi Peninsula on the following grounds:
1.The Anglo-German Agreement of March 11, 1913, relating to the settlement of their frontier between Yola and the Sea and the Regulation of Navigation on the Cross River.
2. The Anglo-German Agreement of April 12, 1913 regarding the boundary of Nigeria and Cameroon from Yola to the Sea.
3. The Yaoundé II Declaration of 4 April, 1971, following that of Yaoundé I of August 14, 1970.
4. The Lagos Declaration of June 21, 1971.
5. The Kano Declaration of September 1, 1974, delimiting a 4-kilometre buffer corridor, i.e. 2 kilometers on either side of the line joining Fairway landing bouy to bouys No. 1, 2 and 3 of the Calabar Channel.
6. The Maroua Declaration of 1 June, 1975, which extends the course of the Boundary from point 12 to point G.
The Grounds of Complaint were as follows: Memorandum of “facts”
1. That in 1884, Germany concluded agreement with Douala chiefs of the Cameroonian Coast that enabled them to annex the hinterland in conformity with the hinterland doctrine which was then recognized as a mode of acquisition of territory, provided in various legal instruments including the Final Act of Berlin Conference of 26 June, 1885.
Conclusions of the Berlin conference
Acting in conformity with the conclusions of the Berlin Conference, the German government of the day concluded with the colonial powers established in neighbouring territories, agreements aiming at a precise delimitation of the areas subject to their sovereignty.
A large number of Agreements were thus concluded between Great Britain and Germany in relation to their respective possessions of Cameroon and Nigeria including the Agreements of London of March 11, 1913 and of Obokum of April 12, 1913, by which the frontier was delimited between Cameroon and Nigeria from Yola to the sea, which regulated navigation on the Cross River.
2.“That the Anglo-German Agreement of March 11, 1913 “which superseded all previous texts, provides in connection with the area now in dispute, that the frontier runs along the Thalweg of the Akwa Yafe River (Article 18), and that “should the lower course of the Akwa Yafe so change its mouth as to transfer it to the Rio del Rey, it is agreed that the Area now known as the Bakassi Peninsula shall remain German territory” (Article 20).
3. Cameroon narrowed her claim to Articles 18 to 20 of the Anglo-German Agreement of March 11, 1913, and that these clauses delimited the frontiers between Cameroon and Nigeria between 1913 and the end of the first World War; and these were never called into question.
Treaty of Versailes
4. That after the first World War, pursuant to the relevant provisions of the Treaty of Versailles, and then of the UN Charter, Cameroons were placed successively under the mandate and trusteeship systems, the mandatory powers and thereafter, the administering authorities being both France and the United Kingdom.
5. That these two regimes embodied international recognition of the frontier between Cameroon and Nigeria, and Cameroonian Sovereignty over Bakassi Peninsula.
6. That Cameroonian title to the Peninsula was confirmed by the results of plebiscite conducted under the auspices of the United Nations on February 11 and 12, 1961, on the occasion of which the nationals of former Southern Cameroons chose to be incorporated into Cameroons.
7.That upon independence, and in conformity with the rules of international law, applicable to state succession in relation to treaties, Cameroon and Nigeria were bound by prior agreements relating to their frontier.
7(a) Moreover, that both of them subscribed to the principle of respect for frontiers inherited from colonization laid down in point 2 of AGH (Res 16 (1) of the Organization of African Unity, adopted at Cairo on July 21, 1964, which “solemnly declares that all member states pledge themselves to respect the frontiers existing on their achievement of national independence”.
8. That Nigeria frequently disputes the frontier occasioning a number of border incidents; and that diplomatic negotiations entered into by the two states for the purpose of arriving at a peaceful solution to these disagreements finally led to the adoption of the Maroua Declaration signed by the Nigerian Head of State, Yakubu Gowon, and his Cameroonian counterpart, Ahmadu Ahidjo, which determined the boundary of the two countries thus confirming Cameroon’s title to the Bakassi Peninsula (see Chart 3433 annexed to that Declaration). The validity of this legal instrument has unfortunately been called into question by Nigeria.
9. That for the first time since both countries acceded to independence, Nigeria in 1992, published an official map locating Bakassi in its territory. And that Cameroon lodged protests on that occasion. That on December 21, 1993, Nigeria committed aggression by invading Bakassi which is a portion of Cameroonian territory, which it immediately proclaimed to be incorporated into the Federated States of Akwa Ibom and Cross River.
10.That on February 28, 1994, Cameroon reported this matter to the Conflict Management and Resolution Committee of the OAU, and also requested an urgent meeting of the UN Security Council. And that by a letter dated March 4, 1994, to the United Nations Security Council (S/1994/228), the Federal Republic of Nigeria confirmed its claim to Bakassi.
11.That both Cameroon and Nigeria have accepted the compulsory jurisdiction of the Court in conformity with Article 36 of its Statute, without any reservation.
12. Cameroon supported its claim to Bakassi by Reference to Nigerian law No. 126 of 1954 (the Nigerian Constitution Order in Council 1954, Supplement to Nigeria Gazette No. 53, Vol. 41 of September 30, 1954, Part B) and by producing Nigerian official and post-colonial maps, including official maps of the Federal Republic of Nigeria, sent by Diplomatic Note No. 570 of March 27, 1962, from the Nigerian Minister of Foreign Affairs and Relations with the Commonwealth to the Embassy of Cameroon at Lagos, describing the exact course of the frontiers between the two countries at the level of Bakassi.
13. That Cameroons claims prior effective occupation of Bakassi going back to the 15th Century.
14. That The Guardian of Thursday, March 22, 1992, quoted Nigeria’s former Minister of Foreign Affairs, Professor Okoi Arikpo who said: “That the Anglo-German treaty of 1913, clearly established that the disputed area (Bakassi) was on the territory of Cameroon, even though it was entirely occupied by Nigeria.”
Cameroon then asked for Nigeria to be expelled from Bakassi, and be forced to pay reparations, and other sanctions by the Court . I have tried to summarize Cameroon’s claims in these few paragraphs.
Nigeria’s response: Nigeria accepted that all Cameroon’s claims were valid, except the claim to Bakassi Peninsula and the claim for reparations and sanctions. Nigeria’s counter memorandum anchored her claims to Bakassi on four grounds.
The legal situation at the time of Independence: That the Nigerian title to Bakassi was originally a title vested in the kings and chiefs of Old Calabar. That the original title of Old Calabar was not affected by the Anglo-German Treaty of March 11, 1913, and was eventually absorbed in the emerging entity of Nigeria.
By the time of independence in 1960, the original title to Bakassi vested in Nigeria, as the successor to Old Calabar. This claim is anchored on the claim that the Treaty of Protection between Great Britain, and the king and chief of old Calabar, 1884, did not entitle the British monarch to alienate the territory of the Efik kingdom, without the approval of the Efik king and chiefs as landowners.
The four bases of Nigeria’s Title
1.Long occupation by Nigeria and by Nigerian nationals constituting an historical consolidation of title and confirming the original title of the kings and chiefs of old Calabar which title vested in Nigeria at the time of independence in 1960.
2. Effective administration by Nigeria, acting as sovereign, and an absence of protest by Cameroon.
3. Manifestation of sovereignty by Nigeria together with the acquiescence by Cameroon in Nigeria’s sovereignty over Bakassi.
4. Recognition of Nigerian sovereignty by Cameroon.
Nigeria further asserted that these four bases of claim apply both individually and jointly. In the view of the Nigerian government, each of these bases of title would be sufficient on its own, to prove the claim. Nigeria then went on to compile a huge submission on Nigeria’s ownership of Bakassi, going back to time immemorial, and demonstrated that Nigeria has been in charge of Bakassi since 1913 in terms of providing public administration, educational facilities, all health, local government and other infrastructure, and that Nigeria’s military presence in Bakassi was for the purpose of maintaining public order, and that “the manifestation of sovereign authority may take the form of exercise of military jurisdiction, as part of a generalized system for maintaining public order”.
Nigeria also explained that it has always had a military presence on the Bakassi Peninsula; that the Isaac Boro military camp has been situated near West Atabong since Nigerian Civil War, and that Nigerian Navy has a base at Jamestown, from where regular patrols are sent out to patrol the creeks and shores of Bakassi Peninsula. Nigeria further stated that she had a port at Bakassi, the Rio Del Rey Port, but failed to explain its significance in terms of legal title to Bakassi.
In Paragraph 10-107 of her Response, Nigeria states that: “The settlement and Port Rio Del Rey, has long been established near the head of the waterway, on the left bank of the Rio Del Rey River. On September 29, 1960, (prior to Nigeria’s accession to independence) the Rio del Rey Port Declaration Order was made under powers conferred by legislation, in particular, the ports Act, 1954 as amended.”
Rio Del Rey Boundary
Although Nigeria mentioned that both countries had “a median line boundary at Rio del Rey”, she failed to proceed further to demonstrate that that boundary at the Rio del Rey was the international boundary. She acknowledged that that boundary proceeded from the Rio del Rey to the head-waters of that river thence with a northern extension to Akwa Yafe, two kilometres north-east of Archibong Creek (NC.M 10.8), but neglected to state that this was the original international boundary, making its way inland, from the sea at Cape Bakassi, to the interior through Rio del Rey, Archibong Creek and Akwa Yafe River. So far as Nigeria’s defence team was concerned, the Treaty of April 14, 1893, was useful as an “administrative arrangement”, and a means of defining Bakassi Peninsula.
Sovereignty: Nigeria accepted Cameroonian sovereignty over Bakassi but claimed that “at least until 1968 (paragraphs 101-103), Nigeria exercised peaceful possession of Bakassi Peninsula and Cameroon acquiesced in this status quo, and that “at no time did Cameroon exercise peaceful possession of Bakassi” (NC.M 10.129-10-131).
Nigeria further explained that even if the original title (to Bakassi) cannot be proved, the effective possession of Nigeria after independence confirmed the original title which subsisted as a consequence of non-implementation of the 1913 Treaty in Bakassi Region; and that even if the original title cannot be proved, the effective possession of Nigeria is to be found in Acts manifesting a continuous peaceful display of sovereignty over the territory, although the sovereignty must be continuous