Still on Bakassi
By
THE judgement of the International Court of Justice (ICJ) at the Hague on October 10, 2002, in the case concerning the land and maritime boundary between Nigeria and Cameroon (Equitorial Guinea intervening) awarded sovereignty over the oil-rich Bakassi Peninsula to Cameroon. The ruling of the ICJ was predicated on Articles xviii - xx of the Anglo-German Agreement of 11 March, 1913, and on the Yaounde II and Maroua Declarations of 1971 and 1975 respectively, by which General Yakubu Gowon purportedly ceded the Bakassi Peninsula to Ahidjo's Cameroon. The 150-page judgement of the ICJ has, expectedly and naturally, stirred the hornet's nest in Nigeria, and been subjected to the most scathing criticisms by a sizeable crop of erudite Nigerians.
In the opinion of a learned school of thought, Old Calabar, encompassing the Bakassi Peninsula, was, in 1913, a protectorate and not a colony of Great Britain. A "protectorate" signifies authority assumed by a strong state over a weak or underdeveloped one, without direct annexation, in contradistinction to a "colony", or a land settled by people from another country, to whose government it is, in some degree, subject. In view of this, according to this school of thought, Britain had no legal right to cede the Bakassi Peninsula to Germany in 1913, having regard to the time-worn legal maxim - nemo dat quod non habet (he who hath not cannot give). With respect, I have some difficulty in reconciling this argument with the provisions of the Foreign Jurisdiction Acts of 1890 and 1913 (consolidating statutes) under which the Crown's power of legislation was established in protectorates and trust territories. Those statues provided that "whether the jurisdiction acquired is based on treaty, capitulation, grant, usage, sufferance or other lawful means, it may be held and exercised in as ample a manner as if acquired by cession or conquest of territory." In other words, the jurisdiction available to the Crown in a country under its protection was indistinguishable in legal effect from that where the territory was acquired by conquest (see Sobhuza II v Miller (1926) AC 518 at 524. In my candid opinion, therefore, the Anglo-German Agreement of 1913 acquired validity on the strength of the provisions of the Foreign Jurisdiction Acts, particularly of 1890.
In his dissenting opinion, Justice Abdul Koroma (an African), representing a similar school of thought, stated, with aplomb and information, inter alia as follows: "To sum up my opinion, by denying the legal validity of the 1884 treaty while at the same time declaring valid the Anglo-German Agreement of 1913, the Court decided to recognise a political reality over the express provisions of the 1884 treaty..." My problem with this patriotic opinion is that it flies at a tangent from the established legal maxim - leges posteriores priores contrarias abrogant (later laws abrogate prior contrary laws).
Be all that as it may, the fact remains that between 1913, when the Anglo-German Agreement was concluded, and 1994, when Cameroon filed an application in the ICJ at The Hague for the recovery of the Bakassi Peninsula from Nigeria, was a period of over eight decades, during which Nigerians, mainly of Efik extraction, effectively occupied the Peninsula, farming without let or hindrance on the land and fishing in the continguous wasters. It is a trite that possession is nine-tenths of the law. At Independence in 1960, the Bakassi Peninsula was an integral part of Nigeria. Of the 250,000 inhabitants of the Peninsula, over 90 per cent are Nigerians, with established homesteads, infrastructural facilities and a culture that is quintessentially Nigerian.
It can be argued, therefore, that the learned Justice of the ICJ misdirected themselves when they failed, neglected or refused to take into account the doctrine of effectivitees (effective occupation) and rejected the theory of historical consolidation, deriving from the equitable doctrine of laches and acquiescence or prescription, a doctrine of universal application, requiring that remedies be sought without unreasonable delay. Quite clearly, Cameroon had been dilatory in the prosecution of its equitable claim and had consequently been overtaken by the maxim vigilantibus -et non dormientibus jura subveniunt (the laws aid those who are vigilant, not those who sleep upon their rights).
In Lindsay Petroleum Co. v Hurd 1874) L.R. 5 P.C. 221, Lord Selborne had warned that "where it would be practically unjust to give remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapses of time and delay are most material..." A delay of about81 years should have been fatal to the Cameroonian case: the ICJ decided it was not. By "requesting" Nigeria" expeditiously and without condition to withdrawn its administration and military or police forces from the Bakassi Peninsula", the ICJ would seem to have ordered that the Nigerian inhabitants of the Peninsula should immediately become Cameroonian citizens or move back to what remains of Nigeria without a thought for their effective resettlement.
But it has been vigorously and almost convincingly argued that the Yaounde II and Maroua Declarations between Gowon and Ahidjo represented a sad renewal of the 1913 Anglo-German Agreement and that time for Cameroon began to run from 1975 and not 1913. What baffles this writer completely is why Gen. Gowon, in my opinion, the most benign and successful military Head of State Nigeria ever produced, decided in 1971 (Yaounde II) and 1975 (Maroua) to cede a portion of Nigeria to Cameroon, one year and five years, respectively, after the Civil War effectively came to an end (i.e. on January 15, 1970.). contrary to the sturdy defence of Gowon's action by on of his loyal lieutenants that the Federal Military Government in the Civil War years could ill-afford to do anything inimical to the interest of Cameroon, the Yaounde II and Maroua Declarations in fact took place after (not during) the War. It was, in all probability, the performance of a contract (ratified or not by Nigeria's Supreme Military Council) in which the cession of Bakassi Peninsula was the executory consideration flowing from Gowon in exchange for Ahidjo's promise to blocks arms traffic through Cameroon to Biafra. It is sad, very sad that a nation's Head of State should cede a portion of his country to another country in consideration for an illegal, selfish and opportunistic promise by that other country to forbear from helping to destroy that Head of State's country. And all that happening long after the War! It was like a friendly gift!
Whatever may be said for or against the judgement, the fact remains that ICJ has given its ruling. That Court is to the whole world what the Supreme Court of Nigeria is to Nigeria. Under the provisions of Article 94 (2) of the Charter of the United Nations, a dissatisfied with the ruling of the ICJ may appeal to the UN Secretary Council for a review of the judgement. It is most unlikely (and I have more than a hunch) that an appeal by Nigeria to that Council against the ICJ judgement will avail any positive result. We might be throwing goof money after bad. If we decide to disobey the ruling of the ICJ, we might be tightening the noose of international conspiracies against this country. So many Western nations, itching to sell their arms and ammunition and to destabilise Africa would only be too happy to hear that was has broken out between Nigeria and Cameroon. In that event, the weaker country (Cameroon) would become the beneficiary of brazen Western support. Little -loved by African countries, Nigeria, a continental power, is seen by the first and second worlds as constituting an obstacle, a rampant, against their efforts to exploit the African continent and hang over her like the sword of Damocles. Besides, we might be stultifying the diplomatic successes and goodwill which Gen. Obasanjo's global travels have achieved for Nigeria in the past three years.
In its judgement, the ICJ took note of Cameroon's formal undertaking, given at the hearings, to "continue to afford protection to Nigerians living in the (Bakassi) Peninsula and in the Lake Chad area." The Court further ruled "that the implementation of the judgement should afford parties a beneficial opportunity to co-operate in the interests of the populations concerned, in order notably to enable them to continue to have access to educational and health services comparable to those they currently enjoy". Therefore, war-war? No. Jaw-jaw? Yes.
Nov 2002