REJECTION OF ICJ RULING: WHERE AKINTERINWA GOT IT WRONG
By
Let me begin by stating that I genuinely hold Bola Akinterinwa in very high intellectual esteem. There is no doubt that he is one of the few surviving men of letters in Nigeria who are not selfish with their knowledge or pitiably bogged down by the challenges of sheer material survival and, therefore, find no time anymore for serious scholastic reflections either as a calling or in the discharge of patriotic duties. On the contrary, he continues to prolifically enrich his readers from his deep and abundant storehouse of ideas through popular and serious writings, especially in his column in the Thisday newspaper.
Perhaps just to confirm the fact that he is a mere mortal, Akinterinwa, uncharacteristically got it a bit wrong in his outing in a piece published in the Thisday of the 28th of October, 2002 entitled: "Nigeria’s Rejection of ICJ Ruling". Ostensibly motivated by raw nationalistic instincts, he unrestrainedly poured our his sentiments like any ordinary Nigerian would, on the sad legal development that saw the country substantially losing her territorial dispute over the Bakassi Peninsula with Cameroon. In that piece, Akinterinwa wrote more like a politician than as a scholar that he is and, because he is not a politician, he expectedly failed to take the conventional preventive steps of those whose business is politics to whom double speak is the trade mark. Accordingly, he was quite emphatic in his position that Nigeria was right in her "rejection" of the duly rendered decision of the ICJ.
It was obvious that Akinterinwa did not take notice of the purely political nature of the language emanating from Aso Rock in the aftermath of the fateful Bakassi judgement: "We reject it"; "we accept it", depending on what you want to hear - everybody is happy.
What is more, Akinterinwa’s support for the government position in the infamous but popular "rejection" declaration was based on the same reasons the government itself gave, something that was quite out of character in a truly intellectual analysis where it is a paramount requirement that every proposition must be sustained and validated by externally verifiable and logical evidence. But by using the government’s case to validate his thesis is a process that militates against the intellectual tradition of claims and proof. It was therefore indicative of a predisposition not to seek the truth about the validity of the position being advanced, namely, that the FG was right in openly "rejecting" the decision of a court of law, by restating the very premise upon which the government’s claim is standing. That was exactly what the first six paragraphs of that essay did.
For the avoidance of doubt, let me reiterate Nigeria, as a sovereign nation is free to react to any decision of a court of law the best way it thinks fit. What we cannot discount is the fact that the nation should equally be prepared to take the full implications of her actions. It as simple as that; actions and reactions. Let us review the arguments and their justifications as briefly as possible.
First, since Britain did not have possession over Bakassi, it could not give it to any other entity, on the basis of the legal maxim, nemo quod nomen habet. But if we take this to its logical conclusion, our case becomes weaker because by virtue of the Order-in-Council under which Nigeria gained independence from Britain on 1st of October, 1960, Britain could not give to Nigeria what she did not possess because the whole idea was (unlike under the so-called Nyerere doctrine of selective succession to treaties from colonial powers to their succeeding independent states) that the new nation of Nigeria inherited all the territories and possession of the previous colonies comprising British Nigeria. More importantly, Nigeria as a legal and political concept did not exist in 1913. In fact, as a matter of law, Nigeria became a state and therefore, a legal entity, before international law, properly so-called, only on 1st of October 1960. So how could an entity that did not legally exist in 1913 be given audience to be disputing the validity or otherwise of a legal transaction entered into at that time? The only way Nigeria could get any right of audience in the circumstance is by way of "inheritance" and, in this case, from Britain. But if as the government and Akinterinwa are arguing, that Britain did not have that right, from where would Nigeria then get the right?
There is one point that one must briefly make while we debate the wisdom or otherwise of the purported rejection of the judgement. Nigeria has argued, and Akinterinwa enthusiastically concurs, that "Bakassi and the thirty-three villages in the Lake Chad area in issue have, from time immemorial, been inhabited by Nigerians who owe their allegiance to local Nigerian rulers, State Governments and the Federal Government" (Emphasis mine). It is really shameful that a nation as rich in intelligent people as Nigeria would indulge in this very puerile argument before a very enlightened world.
It should be clear to everyone that as a legal concept, there was NOTHING like "Nigeria" until Lord Lugard and his empire building British colonialists took hold of the territories now comprising the Nigeria. And as a matter of international law, there was nothing like the Federation of Nigeria until the 1st of October 1960! Bakassi people, like all other peoples now encased in the political entity now called Nigeria could not have been Nigerians from time "immemorial". When the colonialists came to Bakassi in 1884 they certainly did not enter into any treaty (ies) with Bakassi chiefs as "Nigerians". These were autonomous states with all the paraphernalia of sovereignty resident in them and they could not have been "Nigerians" then. So what is "immemorial" about the modern state of Nigeria and her citizenry, if one may ask?
Secondly, Nigeria embarrassingly alluded to bias on the part of the judges by saying that there was a French and British judge on the bench, forgetting that there was also a Nigerian judge, Chief Bola Ajibola, on that same bench. This should never have been mentioned, as it is too cheap and demeaning to the national integrity of Nigeria to be raising such uncivilised argument. If Nigeria was to be taken serious; then, the judicial process would become meaningless, as judges would always belong to somewhere. Even angels would still come from a place and, in this case, Heaven. That argument certainly did not belong to this century, more so, to a country claiming to be running a government based on a supreme constitution anchored on the Rule of Law.
Thirdly, because the inhabitants of Bakassi have always paid allegiance to Nigeria they are therefore Nigerians. The ICJ did not say that they are not 99.9% Nigerians. What the court was concerned about was the ownership of the territory and NOT the occupants of the land. Boundaries are not necessarily demarcated to determine nationality or the nationality of the occupants but about territorial jurisdictional limits. There are more than five million Nigerians, for example, in the Sudan who have been there even before Sudan gained independence. Does that mean Nigeria now owes a parcel of the territory in the Sudan? That would be simply ludicrous. Ex-territorial protection of the welfare of nationals wherever they may be does not extend to claiming the host territory. So if Nigeria has always dealt with Bakassi people as nationals, that does not by itself go to determine the ownership of the land they are occupying. This is a part of the brutal nature of the logic of the Berlin Conference, which we are legitimately at liberty to denounce but are trapped perpetually within its artificialities. It is common knowledge that many African families, clans, communities and nations were arbitrarily separated into different states by this process and to reverse it today would mean a return to the Hobessian sceptre of chaos.
Fourthly, that because Nigeria has been collecting taxes and other activities of statehood such as the provision of educational facilities not only "formed the basis of Nigeria's historical territorial title but also the main ingredient of the theory of effective occupation as a requirement for territorial titles in international law". If Nigeria has not forgotten her international law, it would have occurred to her that "occupation" is no longer legally acceptable for the purpose of territorial acquisition. Even Israel cannot hope to gain sovereignty over her "effective occupation" over Palestine, no matter how effective. For the avoidance of doubt, this "O" word has been banished from contemporary international law. No nation can gain territory anymore due to any form of occupation, be it effective or ineffective. What I think would have been possible was for Nigeria to encourage and promote a call for a plebiscite in that territory under the principle of self-determination. Instead, Nigeria took the position as if it was already settled that "Bakassasians" are a part and parcel of Nigeria. The duty is now on Nigeria either to resettle these people or negotiate a special protection regime for them with Cameroon since they are truly Nigerians.
Lawyers, especially international lawyers, would be amused by some of the arcane arguments that Akinterinwa went into in that piece of popular advocacy. I am personally too amused to be able to tackle them one by one. Of particular importance is his discussion of the principle of compulsory jurisdiction within the ICJ practice. Akinterinwa sounds as if something could at the same time be ‘compulsory’ and still be ‘permissive’. If the discipline of law was that commonplace, elastic and amorphous, why bother to go to the law school to study it at such great costs and time? I would like to suggest to my good friend that he research further on this subject or consult his lawyer friends for better appreciation of the legal regime of the ICJ on this subject. Looking at the matter from the prism of pure power politics is to miss the point because the issue at stake here is legal and not about nationalistic sentiments.
I am as concerned as Bola has amply demonstrated that Nigeria should not have lost Bakassi to Cameroon. But we have lost it. I am also as concerned about the domestic political implications of the judgement, especially the tendency for opposing politicians to want to unjustly blame the present government for the mess. It is legitimate and just for us to point out that the Obasanjo government is not to blame for the loss, contrary to the deliberate mis-information of members of the political class on the subject.
The truth is that the case was already lost before Obasanjo came to power. It is also well known that Abacha who was in charge then did not make use of the best legal materials available to the nation when the matter first came up.
It is obvious that it is the desire of the government to stave off the expected but totally unfounded criticisms about the loss that it decided to act tough by pretending to have rejected the judgement. It is significant that the government has in one voice declared that it will "not go to war over Bakassi" and in another be saying that it "rejected" the decision. It is simply indicative of the politics of the moment. Any sensible government in that position would do exactly the same thing, i.e., presenting an image of toughness to the domestic audience while acting realistically before the international audience.
By declaring, through the transport minister, note, not the justice minister, that it is not "obeying" the ICJ decision, the government was hoping to garner the necessary political support which wartime leaders tend to get while giving itself the elbow room to manoeuvre our murky political waters without sounding too serious. And I think that was wise, politically speaking. And if I were the President, I would capitalise on the Bakassi fever for my re-election process instead of conceding to those who are unfairly blaming him over the loss. But what is not right and, indeed outrageous, is to make virtue out of illegality. Nigeria can not afford to act like an international outlaw. First, we do not have the resources for such defiant adventure and, second, the law is clearly skewed against us making it unwise to run against the tide of global public opinion right now.
If we recall, the only reason Kuwait was able to mobilise the UN against Iraq, apart from her oil, was because the UN no longer accept aggressive military occupation of a state territory by another state. If Nigeria wanted to use force to claim Bakassi, such would have been tolerable before the judgement was handed out. To think so today would be suicidal just the same way Iraq recklessly exposed her underbelly for a global vandalisation in 1990. I can assure Nigerians that in no time, Cameroon would be complaining of "occupation" against Nigeria by holding aloft the same judgement that we have just "rejected" and the world would have no choice but treat Nigeria as the aggressor or a tenant at sufferance. To make matters worse, we have unwittingly antagonised those same nations that we would again be facing at the Security Council, if we still have the stomach to pursue the matter further, by wrongly accusing them of bias.
It would seem that there is a school in international relations circle that has no respect for international jurisprudence and our dear Akinterinwa seems to belong there. It was prominent in the hazy days of the Cold War. But it would be tragic if we allow ourselves to be decimated just because of lack of respect for the law in the post cold-war juridical international frame of mind. Before Akinterinwa comes out with the sequel of his ‘pro-rejection’ thesis, I would like to plead that he does not worsen the already bad case of the government because some people may not be able to separate his erudite political thoughts which are exuding from his prolific pen from the unpalatable prescriptions of the law.
Finally, I think, as a matter of principle, that it is wrong for government officials in Nigeria to be heard to be openly denouncing judgements of courts. It sows the seed of anarchy in society as people tend to copy their leaders rather mechanically. It was fashionable under the military for government officials to be flouting the orders of Nigerian courts and we paid dearly for it in the form of a failure of overall security and the rise of a national mob mentality. It is disheartening that even in a democracy we still continue to show manifest disrespect to judicial decisions.
How do we expect people who do not obey court orders to respect the result of elections that are unfavourable to them? Yet we all know that in a democracy there will always be losers and winners. The civilised expectation is that parties must respect the law and the verdict of the electorate in any contest. Any other view to the contrary is dangerous to a healthy society and that is why the "rejectionists" must be careful. If this nation is to grow, it must learn to play by the rules both in good and in bad times. So it is nothing to be proud of, if a party to a case chooses to reject the considered opinion of the neutral arbiter. It is the highest form of contempt of court and it is always punishable.
Nov 2002