Rethinking the Indivisibility of the Nigerian Union: A Constitutional Inquiry

We find it a good starting point to point out that this constitutional reflection owes its provenance to the interview granted by no less a person than the British High Commissioner to Nigeria, His Excellency, Mr. Paul Arkwright in Kogi State of Nigeria where he was said to have delivered a public lecture on the topic: Brexit: Lessons, Challenges and Opportunities for Nigeria at the Federal University, Lokoja, on Thursday, 6th April, 2017. Asked about the position of Britain on the groups pushing for independence from Nigeria, the envoy said the UK remained firm in its support for one Nigeria. Of a truth, more than any other time in our recent history as a nation, the call for the balkanization of the Nigerian State, championed by different secessionist groups [notably the Indigenous People of Biafra, henceforth referred to as IPOB in this article], has become deafening. While this article is not concerned with the question whether or not the cries of the agitators are meritorious, it seeks on the contrary, to determine whether such secessionist agitations have a place or could possibly find expressions within the orbit of Nigerian extant laws especially in view of the Constitutional provision that affirms the indissolubility of the Nigerian Federation. Put more correctly, the principal focus of this piece is to determine whether, under existing Nigerian laws, the entreaties of IPOB secessionists [for the dissolution of the Nigerian Nation] is ever grantable.

Before moving any further, I hasten to note that I do not sincerely belief that I need to break away from the Nigerian nation for my fortunes to look brighter. In other words, I hold the considered view that dividing Nigeria into different countries is not any guarantee that our problems facing us individually and collectively as a people will vanish. It is rather my take that it is my right to remain in this Nigerian contraption and fulfill my dreams, enjoy all the benefits and privileges attaching to any citizen of this great country without my ethnicity and or religious leaning standing in my way as an impediment. Indeed that is the quiddity of section 42 of the Nigerian Constitution which lucidly affirms that;
“1. A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
a. be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
b. be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
2. No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”

The preamble to the Amended 1999 Constitution of the Federal Republic of Nigeria [referred to as the constitution henceforth in this piece] magisterially proclaims as follows;
 “We the people of the Federal Republic of Nigeria Having firmly and solemnly resolved, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God,…”
The above provision reminds this writer of one short episode that took place in one of his Criminal Law classes as a 3rd year Law student at the Faculty of Law, University of Nigeria, Enugu Campus. In his usual interactive manner of lecturing, the Late Professor G.O.S. Amadi [May his soul rest in peace] asked his students this question: “Who can tell me the first lie in the Nigerian Constitution”. This writer quickly volunteered an answer which was approved as very correct by the Late Professor. My answer was: “We the people”. No doubt, by this provision, there is a consensus among numerous stakeholders in the Nigerian Project that the Amended 1999 Constitution most shamefully lied about itself.

No doubt, that much-criticised phrase aims at underscoring the sovereignty of the Nigerian Nation. Concededly, there is no argument that sovereignty is a foundational topic in the field of International law. However, as rigid and important as this concept is, it still admits of some recognised exceptions. It is therefore not immutable and cannot as a result be construed in absolute terms. In other words, sovereignty of states under international law is not cast in iron. The statement this writer is struggling to make is to the effect that in the exercise of the sovereign powers bestowed on it, the Nigerian State or indeed any other country can limit its own sovereignty or surrender a part of same. The truth as it stands today is that the Nigerian nation has, out of her own volition, whittled down and surrendered part of her sovereignty which enables any part or section thereof to secede when they so decide. Now, let me explain.

I choose to start with the position in England as recorded in their legal history. In the case of Blackburn vs. Attorney-General,  Court of Appeal (Civil Division) [1971] EWCA Civ J0510-2, [1971] 1 WLR 1037 where Mr. Blackburn was concerned about the application of Her Majesty's Government to join the Common Market and to sign the Treaty of Rome. He brought two actions against the Attorney-General, in which he sought declarations to the effect that, by signing the Treaty of Rome, Her Majesty's Government will surrender in part the sovereignty of The Crown in Parliament and will surrender it forever. He stridently canvassed the view that in so doing the Government will be acting in breach of the law. Mr. Blackburn pointed out that many regulations made by the European Economic Community will become automatically binding on the people of Great Britain: and that all the Courts of Great Britain, including the House of Lords, will have to follow the decisions of the European Court in certain defined respects, such as the construction of the Treaty. Mr. Blackburn referred the English Court of Appeal to a decision by the Court of Common Market Costa v. E. N. E. L. ( 1964 Common Market Law Reports, 425) in February, 1964, in which the European Court in its judgment said that:

".….the member states, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves".

In coming to their decision, the majority of the Court of Appeal, England (Lord Denning dissenting) reasoned and held that the power to enter into Treaties was itself a power of the Crown acting on advice from ministers. It was not open to challenge that power in the courts.

We now turn to the Nigerian judicial authorities. There is no doubt that the Nigerian Head of State (President) has the powers to enter into treaties with foreign nations (both bilateral and multilateral) which binds the whole Nigerian nation. Section 12 of the Amended 1999 Constitution has laid down the procedure for the domestication of such treaties as a condition precedent to their activation as a law in Nigeria. There is no question regarding the bindingness of the Universal Declaration of Human Rights (providing among others for the right to self-determination) on the Nigerian nation. Equally true is the fact that not only that Nigeria is a signatory to the African Charter on Human and Peoples’ Rights, the Nigerian Parliament has entrenched the said Charter as part of the corpus juris of the country by way of domestication in compliance with the dictates of section 12 of the Constitution earlier referred to. Be it noted that Article 20 of the African Charter on Human and Peoples’ Right most lucidly proclaims in clear language that:
All peoples shall have the 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.”

As earlier stated, the African Charter on Human and Peoples’ Right became part of Nigerian laws by virtue of African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act), Cap 10, Laws of the Federation (LFN), 1990. The status of this very important legislation fell for interpretation before the Nigerian Supreme Court in the case of Abacha vs. Fawehinmi (2001) 51 WRN 29; (2000) 6 NWLR 228, (2002) 3 LRC 296, (2001) 1 CHR 95. In answering that crucial question, Ogundare, J.S.C. (of blessed memory) delivering the lead judgment of the full panel of the Nigerian Supreme Court had this to say:
“Where, however, the treaty is enacted into law by the National Assembly, as was the case with the African Charter which is incorporated into our municipal (i.e. domestic) law by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria 1990 (hereinafter is referred to simply as Cap. 10), it becomes binding and our Courts must give effect to it like all other laws falling within the Judicial power of the Courts. By Cap. 10 the African Charter is now part of the laws of Nigeria and like all other laws the Courts must uphold it. The Charter gives to citizens of member states of the Organisation of African Unity rights and obligations, which rights and obligations are to be enforced by our Courts, if they must have any meaning… No doubt Cap. 10 is a statue with international flavour. Being so, therefore, I would think that if there is a conflict between it and another statue, its provisions will prevail over those of that other statue for the reason that it is presumed that the legislature does not intend to breach an international obligation. To this extent I agree with their Lordships of the Court below that the Charter possesses "a greater vigour and strength" than any other domestic statue.”
It is important to point out that the provision of Section 12 of the Nigerian Constitution declaring null and void any treaty entered into between Nigeria and any other country/countries will acquire the force of law in Nigeria until domesticated holds no water in international law, nay before International Courts/Tribunals. What this simply means is that the Nigerian Nation cannot, under any conceivable circumstance, resile from its obligation under any international treaty by setting up its domestic law as a defence. In other words, Nigeria cannot point at its own domestic laws as constituting a limitation to the fulfillment of its obligation under any international treaty. Put more correctly, domestic laws cannot be allowed to constitute a drag on the operation of foreign laws under which a state party has undertaken to fulfill international obligations. Indeed, this is the heart and soul of Article 7 of the 1969 Vienna Convention on the Law of Treaties under International law. The argument put up by the Government of Nigeria to the effect that Bakassi Peninsula could not be yielded up to Cameroun on the principal ground that section 12 of the Nigerian Constitution would need to be complied with so as to effectively delete Bakassi as a Local Government by way of Constitutional amendment was roundly rejected by the International Court of Justice. 

The foregoing propositions of international law are founded on the jurisprudential beacon yielded by the decision of the International Court of Justice in the decided case of Cameroon v. Nigeria, ICJ Reports, 2002, pp. 303, 346.) Today, Bakassi Peninsula, formerly of Cross-River State of Nigeria, is no more a Nigerian territory even without any constitutional amendment prescribed by Section 12 of the 1999 Amended Nigerian Constitution. The Nigerian Supreme Court [somewhat unfortunately] has now accepted this position as a correct representation of the law binding on the Nigerian nation. A practical demonstration of this acceptance is made manifest in the case of Attorney-General of Cross-Rivers State vs. Attorney-General of the Federation and Anor (2005) 15 NWLR (Pt.947) pg 71 where the effect of the ICJ judgment on the erstwhile littoral State of Cross-Rivers state was captured thus;
“The effect of the judgment of the International Court of Justice dated 10/10/2002 on the land and maritime boundary between Nigeria and Cameroun is that it has wiped off what use to be the estuarine sector of Cross River State as a result of which the State is hemmed in by the new international boundary between Nigeria and Cameroun. That being the case, there seems to be any estuarine boundary between Akwa Ibom State and Cross River State with the result that Cross River no longer has a seaward boundary.”
In fact in a later 2012 case of Attorney-General of Cross-Rivers State vs. Attorney-General of the Federation and Anor, the Supreme Court (SC.250/2009), speaking through Rhodes-Vivour, J.S.C.,  was more punchy when it eloquently declared with a tone of finality that;
“This Court has no jurisdiction to decide ownership of oil wells located on oil rich Bakasi Peninsula for the simple reason that Bakasi Peninsula is foreign territory. It is Cameroun land. Supreme Court jurisdiction is restricted to Nigeria land.”

The jurisprudential floodlight proffered by the litany of authorities so far surveyed leaves us with the ineluctable view that even though the Nigerian state is sovereign over all its affairs, its [Nigerian] accession to the African Charter on Human and Peoples Right by its [Nigerian] domestication of the said Charter has effectively watered down the indivisible and indissoluble portion of our Constitution. In view of the foregoing, I see no harm [for the sake of keeping to its international obligation] if the Nigerian State decides to do the needful which is to conduct a referendum with a view to ascertaining whether the relentless agitations of the secessionists has the genuine backing of the people the agitators claim to represent or whether they [the agitators] are mere rabble-rousers. If the referendum is conducted and the majority votes clearly swing in favour of dissolution of the Nigerian Union, then let it be so for our laws provide for it. On the contrary, if the majority pendulum swings in favour of the continuity of the Nigerian Union, then the mouths of the agitators will have been effectively sealed up forever. This is the way to go. That is pure democracy which has as one of its core ingredients the accommodation of dissenting voices and plurality of reasoning.
If however the Nigerian nation does not subscribe to these democratic prescriptions, then the remaining opening left for it is to explore that option offered by the Nigerian Supreme Court in Fawehinmi’s case (supra). That option is for the National Assembly to repeal the African Charter on Human and Peoples Rights thereby ending the obligation owed the international community regarding the enforcement of the rights enshrined therein. This too is not without its own precarious consequences for the Nigerian nation both within and outside of its borders. If I were in a position to elect for her, I would choose the first which is to conduct the referendum when and if the agitators properly call for it as laid down by the laws and not in the manner they are going about it presently that constantly sets them on a collision course with the Security Agents of the Nigerian State resulting in many avoidable deaths most times. It would surprise the proponents of “One Nigeria” to discover that most citizens from the Biafrian Region would lend their unflinching support for one Nigeria contrary to the media hype of disintegration as propelled by the agitators. Most elites, wealthy businessmen, intellectuals and opinion-moulders from that region would definitely not toe the path of secession. The reasons are too plain to be seen. Their stakes [business, political and otherwise] mean more to them than having an independent state. They are not [and will never be] willing to sacrifice the former on the altar of the later. At most, what they [the leading lights from the region] want is a proper restructuring of the Nigerian Nation in a way that will make the non-discrimination provisions of Section 42 of our Constitution a reality for the people of the region. This will reflect in the quality of infrastructure, equal opportunity for federal jobs, political appointments and equal representation at the National Assembly by bringing all the geo-political zones to equal states. This is not too much for the Nigerian Leadership to consider and grant. After all, our founding fathers and the framers of our constitution desired that all Nigerians be treated equally. That is the only justification for the Federal Character principle sanctioned by the Constitution. That too is the only justification for the continuous existence of the Federal Character Commission. This way, the frequent agitations across the land would be laid to rest. Peace and tranquility [not of the grave yard] would return without which our growth would continue to be inhibited. I find here a convenient place to stop.

JOHNMARY CHUKWUKASI JIDEOBI is a Criminal Defence Attorney and Human Rights Activist based in Abuja, Nigeria. He could be reached through:
Rethinking the Indivisibility of the Nigerian Union: A Constitutional Inquiry Rethinking the Indivisibility of the Nigerian Union: A Constitutional Inquiry Reviewed by David Brunt on Monday, April 24, 2017 Rating: 5

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