This legal opinion is necessitated by recent developments as per agitations for Self-Determination by some ethnic nationality groups like the Indigenous People of Biafra and Oduduwa Nation, led by Mazi Nnamdi Kanu and Chief Sunday Adeyemo, alias Sunday Igboho, respectively.
Some legal pundits have published opinions to the effect that Self-Determination is unconstitutional under the extant Nigerian Constitution. These pundits anchor their position on the provisions of sections 2(1) and/or Section 6(6)(c) of the Constitution Federal Republic of Nigeria, 1999 (as amended), herein referred to as “The 1999 Constitution”. They posit that since sections 2(1) and 6(6)(c) of the 1999 Constitution provides to the effect respectively, that “Nigeria is one indivisible and indissoluble sovereign state and that rights contained in Chapter II (Section 13 – 24) of the constitution are non-justiceable; it goes to mean that any call for Self-Determination in Nigeria is unconstitutional since rights contained in Chapter II of the 1999 Constitution are social, economic and cultural in nature, being of the same genre with Right to Self-Determination. It is submitted that the view, supra is misleading as same is misconstrued. This is so because in reaching that conclusion, they failed to acknowledge the conflict of law situation that exists between domestic and international law when Self-Determination, a rule of International Law comes to issue and the need to resolve the conflict by juxtaposing Nigeria’s domestic law with International Law in order to arrive at a tenable resolution. Further submitted, a dispassionate resolution of this conflict of law situation will culminate in the view that Self-Determination is constitutionally backed in Nigeria. My position is anchored on the following facts, viz:
- The Right of People to Self-Determination was the basis upon which colonized people including Nigeria agitated for and got independence.
- The Right of Peoples to Self-Determination is recognized by several international instruments to which Nigeria is a signatory; most of which have been ratified and some incorporated into Nigeria’s domestic law in line with section 12 of the 1999 Constitution. Such international instruments include Article 1(2) charter of the United Nations; Article 20(1) African Charter on Human and Peoples’ Rights; Article 1 and 12 International Covenant on Civil and Political Rights; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, to mention a few.
- Nigeria incorporated the African Charter on Human and Peoples’ Rights, herein referred to as “The African Charter”; into its domestic law by virtue of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, A9, LFN 2004. The incorporation was done wholly without any reservations, pursuant to powers granted to the National Assembly under section 12 of the 1999 Constitution. The implication of this holistic incorporation is that the African Charter has constitutional flavor.
- Consequent upon the holistic incorporation of the African Charter, the Fundamental Rights Enforcement Procedure Rules, 2009, made by the Chief Justice of Nigeria pursuant to section 46(3) of the 1999 Constitution, enjoins the courts to give the constitution, especially the provisions of Chapter IV as well as the African Charter EXPANSIVE AND PURPOSIVE interpretation and application (Emphasis mine).
The foregoing gives eloquent testimony to the constitutional flavor the African Charter enjoys in Nigeria.
- Section 20(1) of the African Charter, guarantees the Right of People’ to Self-Determination. Thus, notwithstanding any argument to the contrary regarding the enforceability of the social, economic, and cultural rights contained in the African Charter. It is submitted that by the clear provision of section 12(1) of the 1999 Constitution and the legal implication of the African Charter On Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. A9, LFN 2004; all the rights contained in the African Charter including the Right of Peoples’ to Self-Determination are enforceable in Nigeria.
Section 12(1) 1999 Constitution provides:
“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” (Emphasis mine)
So, to the extent that the African Charter was incorporated into the laws of the federation of Nigeria without any reservations; all its provisions including the provision of section 20(1) have the force of law in Nigeria.
- The above depicts the attitude of the Nigerian Constitution towards International Law. Now, I shall briefly show here the attitude of International Law towards municipal law, especially as regards the Right to Self-Determination. The Right to Self-Determination is an international obligation that is “erga omnes” in character; erga omnes obligations are obligations that touch on a subject matter that the entire international community has an interest in; and which states are bound to respect. Erga omnes obligations affect both the freedom of state consent and the sovereignty of states. Thus, in the East Timor case (Portugal V. Australia)C.J Rep., 1995, PP. 90, 102; 105 ILR, P. 226. the I.C.J declared that “Portugal assertion that the right of people to self-determination as it evolved in the Charter and from United Nations practice, has an erga omnes character, is irreproachable”. Also, in Reference Re Secession of Quebec (1998) 161 DLR (4th) 385, the Canadian supreme court declared that the principle of self-determination “has acquired a status beyond “convention” and is considered a general principle of international law”.
Articles 27 and 46(1) of the Vienna Convention on the Law of Treaties, 1969; provide to the effect that municipal law may not be pleaded for non-compliance with international obligations. This is more so, where the obligation in question is one of Customary International Law with an erga omnes character. Thus, in the Alabama Arbitration Awards, Moore , 1 Int. Arb. 495 (1872); United States V. Great Britain; the tribunal held that neither municipal legislative provision nor the absence of municipal legislation could be pleaded successfully as a defense for non-fulfillment of international obligations. What is more? “pacta sunt servanda” to wit; agreements must be kept, remains a cardinal principle of International Law. Thus, Article 26 of the Vienna Convention on the Law of Treaties, 1969, provides; “Every treaty in force is binding upon the parties to it and must be kept in good faith”.
Therefore, whereas states may repudiate international obligations notwithstanding pacta sunt servanda; where an obligation incumbent upon a state is a treaty provision ratified and incorporated into its domestic laws and/or where the obligation is of erga omnes character, a state may not be heard to plead any provision or absence of a provision in its domestic law as a defense for non-compliance with such international obligation.
- Whereas, many are quick to cite “uti possidetis juris” as a bar against self-determination; the point should be clarified that uti possidetis juris is a principle of contemporary Customary International Law which seek to protect national frontiers established at independence, and it does not affect the right of people to self-determination and vice versa. Thus, in Burkina Faso V. Mali (1986) I.C.J Rep., P. 554; 80 ILR, P. 459; it was noted that the principle had in fact developed into a general concept of contemporary Customary International Law and was unaffected by the emergence of the right of people to self-determination. Opinion No. 2 Yugoslav Arbitration Commission, 92 ILR, P. 168, also supports this position.
Therefore despite uti possidetis juris, the right of people to self-determination is exercisable. Self-Determination seeks to protect the Human Rights and Rights of Minorities; thus where these rights are flagrantly violated as is the case in present-day Nigeria; and form the basis upon which the various agitations for Self-Determination are based; the right cannot be validly denied. See; Declaration on the Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union (1992); where the emphasis was given to Human Rights and the Rights of Minorities.
It is submitted that the Right to Self-Determination is constitutionally backed in Nigeria and an obligation incumbent upon the state to respect. Make no mistake; I am an advocate of “One Nigeria” but the one Nigeria I envisage is one governed on the principle of democracy and social justice; respect for the people in whom sovereignty lies and from whom government through the constitution derive its powers and authority; a Nigeria where the security and welfare of the people is the primary purpose of government, where federal character, national unity, justice, equity, and egalitarianism are public policy and promoted by government thereby earning the patriotic loyalty of the people.
I do not encourage a one Nigeria where government fails to live up to its duties; where the rule of law, the principle of separation of powers, and respect for court orders are cast overboard. A Nigeria where Human Rights and the basic principles of federalism are blatantly shackled can only beget calls for Self-Determination. The Federal Government is advised to reflect on the state of the nation and sincerely do the needful by calling for a National Dialogue in order to find a sustainable solution to the myriads of problems that threaten to sink the ship of state, instead of using brute force on people making legitimate demand upon a constitutionally backed right, without more. A responsible government commands legitimacy but an autocratic leviathan begets anarchy in the polity.
Christian Eneojo Ayegba Esq.
A member of the Nigerian Bar Association,
Writes from Kogi State.