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BAKASSI: Why Nigeria can’t appeal the ICJ verdict – Robert Clarke

By Ishola Balogun & Wahab Abdulah

Senior Advocate of Nigeria, Chief Robert Clarke (SAN), who is the Principal Partner, Paiko & Co, implores the Federal Government to resettle Nigerians living in Bakassi instead of allowing a revolt which, according to him, may have a spiral effect in the country. The septuagenarian, in this interview, insists that Nigeria erred by submitting to the International Court of Justice(ICJ) and has no option than to abide by the decision of the ICJ on the peninsula. Excerpts:

Some believe that Nigeria traded off Bakassi. Do you think that was right?
I will not say whether somebody was right or wrong but I will first like to analyse the facts. The question is that at the  time former President Obasanjo decided to enter into the Green-Tree Agreement with Cameroun, what were the facts, the fact on ground was that there was a judgment of the International Court of Justice in 2002.

By majority decision in which our eminent jurist Ajibola sat, it ruled that Bakassi did not belong to Nigeria, nothing was done on that judgment since 2002. By 2005, Obasanjo felt he should look at it. I am not holding brief for him but the fact is that by 1914 when Nigeria became one nation, the map of Nigeria as at that time did not contain Bakassi.  So, Bakassi was not part of Nigeria.

But at what time did Bakassi become part of Nigeria? If Nigeria became a nation in 1914, and Bakassi was not part of it, and it later became part of Nigeria, we need to know under what circumstances.  Bakassi later became part of Nigeria in 1918 when Hitler’s colonies all over Africa were taken away from the Germans- Tanzania, Namibia, Togo and Cameroun were German territories up to November 1919.

And by the Amnesty treaty, the League of Nations decided to take away all the German colonies in Africa and brought them under the trusteeship of the League of Nations. So, the League of Nations said they had taken all these territories from the Germans, and who is going to look after them? At that time, they divided Togo into two as well as Cameroun.

Gold Coast took over half of Togo while they gave the Northern Cameroun to Nigeria and they gave the other part to France. That was how Bakassi became part of Nigeria as a ‘trusteeship’ entity and not as a separate entity. Now, in 1958 when Ghana was to become independent, the United Nations asked the Togolese, ‘Do you want to remain in Ghana (Gold Coast) or you want to go back to the French territories ‘as Togo because Togo had not gotten independent then, it was under the French rule?

Chief Robert Clarke

They decided that they didn’t want to go back to Togo. It is just like Nigeria where you have the Anagoge and Yoruba in Benin Republic, do we say because they are Yoruba, they are Nigerians? No. They opted to stay in Ghana. In 1960, Nigerian was to become independent and Nigeria as an entity to be independent was devoid of Bakassi. If they granted us independence, it would only be the area Nigeria was in 1914. So, they asked the same question that ‘you Camerounians, do you want to remain in Nigeria or you want to go back to the French  territories’? (then Cameroun had not taken independence).

The Northern Camerounians decided to stay with Nigeria, but the Easterners who are the Bakassi and West Cameroun, as they were known then said no, that they had not been treated well by the regional government. Of course they were not the only ones that complained,  Cross River also complained. So, they opted to go back to the French Cameroun.

There was a plebiscite and it was approved by the United Nations. That was the legal position of the area as at 1960. The question then became how are we going to re-draw Nigeria’s map? The problem however started in 1966 when General Yakubu Gowon took over government. The gendarmes thought that since Nigeria was at war, it was time to attack Nigeria, so they sent soldiers into Bakassi.

Gowon told them that he did not want to fight a war, he was already fighting a civil war and he said ‘let us divide Bakassi into two so that we both keep our part’. It is also a wrong notion when people say that Gowon sold out Bakassi. When Shagari came in, nothing was done, and when Abacha came in, the gendarmes attacked again, and Abacha wanted to fight a war, they showed him that Nigeria can’t fight a war because we don’t own it.

So, Abacha set up a panel with Akinjide, Ajibola and others as members to look into it and they decided that we had a better title than the Camerounians and that was what led them to submitting to the World Court on the notion that history is the cornerstone of Nigeria rulership. That was the greatest mistake Nigeria made by submitting to the World Court. You are bound to carry out the judgment; if you don’t, the United Nations Security Council will enforce it.

So, Obasanjo, who knew all the facts, and with his wide experience internationally, he opted to make the best out of nothing. According to him, ‘we have spent so much to develop the area, we cannot just lose out completely, let us agree on some economic terms’ and they drew out a 20-year economic term whereby they allotted certain oil blocs to Nigeria and, after 20 years, it will be reviewed. Obasanjo did not take any step in isolation; he was acting in pursuant to the international law.

What options are then open for Nigeria and what is the position of self-determination of the people in all of these?

Under international law, wherever you settle down, you are bound by the law of that area. If you go to Benin Republic today, one-third of the people are Yoruba; would you say they are Nigerians? No. If you go to Equatorial Guinea today, in the good old days, the Igbo  were going there as plantation workers, you have many of them there who have intermarried.

Today,  in that country, half of the population are Igbo. Can we say the Igbo  in that country are Nigerians? Since they have decided to settle there, they must abide by the rules of the country. The fact that the Cross River people moved into Bakassi over 100 years ago to settle down does not mean that they own the place.

The international law has now adjudged that they do not own the place, the best they can do is to accept that they are not the owners and leave the area as their parents have been doing and decide to come back to Nigerian as refugees if they are not happy with the treatment there. Government now owes it as a duty to rehabilitate them when they come back.

That is a duty we owe them because being refugees is not of their own making; it is our government who sold them out to international court. Why should they suffer? If they are being harassed, let the government wade in, build rehabilitation centres for them and set them up. Nigeria has money to spend instead of individuals pocketing the money.

The international court gave us the opportunity that if there is anything wrong in this judgment, we should review it and they will look into it. We never did that, but typical of Nigerians’ way of doing things, you now say you want to appeal in just three weeks.

Was it solely as a result of our complacency or we don’t have a fact to push forward?
One, we don’t have a fact to push forward. Again, the government of Obasanjo has already taken a decision for us in his own wisdom to get the best for Nigeria by signing an economic pact with them. So, there is nothing we can do again. There are certain oil blocs that have been allocated to Nigeria, at least for 20 years. And if you look at the terms of this agreement, it can only be reviewed in 2028. That is the advantage we can leverage on.

But don’t you think the killing of Nigerians in the area by gendarmes is a violation of the Green-Tree Treaty entered into by Cameroun?

That is human behaviour. What is happening in Sierra Leone and Ghana today has nothing to do with Nigerians. The best we can do is to use diplomatic means. Nigeria cannot send any troop into Bakassi today. If we do, the United Nations Security Council will ask us to clear out within 24 hours.

We are not Israel that has been occupying Palestinian state for so many years. There is nothing we can do; we just have to tell ourselves the truth. Apart from asking your people to leave and rehabilitating them, any other thing will be a violation of the international law.

But the people might have felt that they were rather short-changed by the Nigerian Government for not being able to defend them, what is your advice for the people and government of Nigeria on the issue?

My advice is that Nigeria should live up to its obligations. When the Federal Government of Nigeria has entered into economic relationship on Bakassi, she should have allowed her people who want to return to Nigeria do so and let them know that if they return, they are not going to lose anything.

So, instead of allowing organised revolt in another sovereign country, because it may backfire in Nigeria, let our government make arrangement with the neighbouring states like Akwa Ibom, and Cross Rivers, and make available an economic situation where these people can return and be re-settled. Sovereignty is so important in international law that you are bound to obey the laws of the sovereign state.


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