Sus­tain­ing Nige­ria’s in­di­vis­i­bil­ity as a na­tion-state

The only form of self-de­ter­mi­na­tion within a na­tion-state gen­er­ally ac­cepted is in­ter­nal self-de­ter­mi­na­tion, which is ba­si­cally for the pro­tec­tion of mi­nor­ity groups within a state.

Financial Nigeria Magazine - - Contents - A Fi­nan­cial Nige­ria columnist, Fun­mi­layo Odude is a La­gos-based le­gal prac­ti­tioner, and a pub­lic af­fairs an­a­lyst.

Forty-seven years af­ter the end of the Nige­rian Civil War, the coun­try faces re­newed se­ces­sion­ist ag­i­ta­tions in the South-East. The loss of lives and prop­erty and gen­eral un­rest in the re­gion are quite dis­tress­ing. Some would ar­gue that the vi­o­lence and loss of lives are at­trib­ut­able to a tact­less re­sponse by the govern­ment. There are counter-ar­gu­ments, which jus­tify govern­ment's re­sponse, given the threat to Nige­ria's ter­ri­to­rial in­tegrity.

The govern­ment's re­sponse has been that Nige­ria is in­di­vis­i­ble. I sus­pect most Nige­ri­ans from the South-East are in lock­step with the govern­ment on the idea of “one Nige­ria.” But the de­bate over the ag­i­ta­tion for self-de­ter­mi­na­tion by the In­dige­nous Peo­ple of Bi­afra (IPOB) has sev­eral di­men­sions. Th­ese in­clude the ques­tion of the per­son and char­ac­ter of the self-pro­fessed leader of IPOB, Nnamdi Kanu; the al­le­ga­tions of marginal­iza­tion of the South-East re­gion; the le­gal­ity or oth­er­wise of the re­cent dec­la­ra­tion of the group by the Nige­rian Army and the Fed­eral High Court as a ter­ror­ist or­ga­ni­za­tion; among oth­ers. There is no doubt that th­ese are is­sues we must find broadly agree­able and long-last­ing so­lu­tions to.

How­ever, be­fore we find th­ese so­lu­tions, we need to ask some fun­da­men­tal ques­tions. For in­stance, what con­sti­tutes our in­di­vis­i­bil­ity as a na­tion? How sus­tain­able is this in­di­vis­i­bil­ity? What must we do to se­cure the lives and prop­erty of all ci­ti­zens of the coun­try, in­clud­ing those in the con­stituents that gave only '5%' of the votes that ush­ered in this ad­min­is­tra­tion?

Most clam­ours for se­ces­sion seek their le­git­i­macy from the right to self­de­ter­mi­na­tion en­shrined in in­ter­na­tional law. How­ever, the pre­vail­ing view seems to be that the in­ter­na­tional treaties, which pro­vide for this right, were not meant to be used as a tool for se­ces­sion­ist groups. Rather, they were de­signed as le­gal back­ing for de­col­o­niza­tion.

Ar­ti­cle 1(2) of the United Na­tions Char­ter of 1945 states that part of the mis­sion of the United Na­tions is: “To de­velop friendly re­la­tions among na­tions based on re­spect for the prin­ci­ple of equal rights and self­de­ter­mi­na­tion of peo­ples…” Ar­ti­cle 1 of the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights (ICCPR) of 1966 also pro­vides for the right to self-de­ter­mi­na­tion by which peo­ple can “freely de­ter­mine their po­lit­i­cal sta­tus and freely pur­sue their eco­nomic, so­cial and cul­tural de­vel­op­ment.” The In­ter­na­tional Covenant of Eco­nomic, So­cial and Civil Rights (ICESCR) of 1966 con­tains the same pro­vi­sions. Nige­ria has rat­i­fied all th­ese covenants.

As stated pre­vi­ously, the in­ter­na­tional law com­mu­nity leans to­wards a re­stricted in­ter­pre­ta­tion of the right to self­de­ter­mi­na­tion un­der th­ese in­stru­ments. This in­ter­pre­ta­tion favours peo­ple un­der for­eign dom­i­na­tion, not those in sov­er­eign, in­de­pen­dent states.

More­over, the only form of self­de­ter­mi­na­tion within a na­tion-state gen­er­ally ac­cepted is in­ter­nal self­de­ter­mi­na­tion, which is ba­si­cally for the pro­tec­tion of mi­nor­ity groups within a state. This is achieved by im­pos­ing an obli­ga­tion on the state to pro­tect their rights “in com­mu­nity with the other mem­bers of their group, to en­joy their own cul­ture, to pro­fess and prac­tice their own re­li­gion, or to use their own lan­guage.” (Ar­ti­cle 27 of the ICCPR).

For ex­am­ple, the Supreme Court of Canada, in a land­mark judg­ment in 1998 on the le­gal­ity of the se­ces­sion at­tempts of Quebec, held that: “The var­i­ous in­ter­na­tional doc­u­ments that sup­port the ex­is­tence of a peo­ple's right to self­de­ter­mi­na­tion also con­tain par­al­lel state­ments sup­port­ive of the con­clu­sion that the ex­er­cise of such a right must be suf­fi­ciently lim­ited to pre­vent threats to an ex­ist­ing state's ter­ri­to­rial in­tegrity or the sta­bil­ity of re­la­tions between sov­er­eign states.” The court also held that: “A state whose govern­ment rep­re­sents the whole of the peo­ple or peo­ples res­i­dent within its ter­ri­tory, on a ba­sis of equal­ity and with­out dis­crim­i­na­tion, and re­spects the prin­ci­ples of self-de­ter­mi­na­tion in its own in­ter­nal ar­range­ments, is en­ti­tled to the pro­tec­tion un­der in­ter­na­tional law of its ter­ri­to­rial in­tegrity.”

Back home on the con­ti­nent, the African Char­ter on Hu­man and Peo­ples' Rights, which Nige­ria has rat­i­fied by en­act­ing a Rat­i­fi­ca­tion and En­force­ment Act, states in the first clause of Ar­ti­cle 20: “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.” The re­main­ing two clauses of Ar­ti­cle 20 would seem to sug­gest a def­i­ni­tion of self-de­ter­mi­na­tion lim­ited to for­eign sub­ju­ga­tion. Clause 2 states:

“Colonised or op­pressed peo­ple shall have the right to free them­selves from the bonds of dom­i­na­tion by re­sort­ing to any means rec­og­nized by the in­ter­na­tional com­mu­nity.” Mean­while clause 3 states: “All peo­ples shall have the right to the as­sis­tance of the State Par­ties to the present Char­ter in their lib­er­a­tion strug­gle against for­eign dom­i­na­tion, be it po­lit­i­cal, eco­nomic or cul­tural.”

This out­look for self-de­ter­mi­na­tion is strength­ened by the fact that the Con­sti­tu­tions of most coun­tries are ei­ther silent on, or com­pletely for­bid, se­ces­sion. Ethiopia is the only coun­try I have found so far in my re­search on this is­sue that has a pro­vi­sion for uni­lat­eral re­gional se­ces­sion.

Sec­tion 2(1) of the Nige­rian Con­sti­tu­tion states that: “Nige­ria is one in­di­vis­i­ble and in­dis­sol­u­ble Sov­er­eign State.” It is, there­fore, a state­ment of law (as it stands to­day) that Nige­ria is in­di­vis­i­ble. This sense of con­sti­tu­tional fi­nal­ity over our in­di­vis­i­bil­ity is, how­ever, not car­ried over into re­al­ity. In­stead, we have a group of peo­ple from a re­gion of the coun­try who are ag­i­tat­ing for se­ces­sion and a govern­ment that is en­forc­ing our con­sti­tu­tional unity us­ing the mil­i­tary.

The choice of a group of peo­ple to with­draw from a na­tion-state would some­times be con­sid­ered. There­fore, coun­tries and in­deed the in­ter­na­tional com­mu­nity must re-think the stance of ab­so­lute re­stric­tion. From pro-Bi­afra groups in Nige­ria, to Scot­land in the United King­dom, Cat­alo­nia in Spain, and Quebec in Canada, it is ob­vi­ously not work­ing. It is time to be­gin a con­ver­sa­tion on rec­og­niz­ing this right and then set­ting the con­di­tions upon which it can be trig­gered. Ag­i­ta­tors would be re­quired to fol­low es­tab­lished guide­lines, while pro­tect­ing the sovereignty of the na­tion-state.

In­ter­na­tional in­flu­ence can be wielded on how or whether to rec­og­nize se­ced­ing states. But we should be­gin to cre­ate a le­git­i­mate process whereby peo­ple or re­gions, which seek to ex­er­cise this right would not be re­stricted. This would greatly re­duce se­ces­sion­ist con­flicts, thereby sav­ing lives. It will also pro­vide a good mech­a­nism for weed­ing out rab­ble rousers, ter­ror­ists and their spon­sors, look­ing to sway young peo­ple who have be­come gullible due to lack of proper ed­u­ca­tion, un­em­ploy­ment or big­otry. There would be no need for vi­o­lence where there is a le­git­i­mate process – in­ter­na­tion­ally rec­og­nized – to achieve their goals peace­fully.

Prof. Ja­son Sorens, lec­turer in the depart­ment of govern­ment and Pro­gram Di­rec­tor of the Po­lit­i­cal Econ­omy Project at Dart­mouth Col­lege, Hanover, New Hampshire in the United States of Amer­ica, has ar­gued in his book: “Se­ces­sion­ism: Iden­tity, In­ter­est and Strat­egy,” stat­ing that “gov­ern­ments that have tol­er­ated se­ces­sion like Bri­tain, Canada, Den­mark and Bel­gium have suf­fered less se­ces­sion­ist con­flict than gov­ern­ments that do not tol­er­ate se­ces­sion.”

De­spite the Supreme Court of Canada's stance on the il­le­gal­ity of the se­ces­sion of Quebec, the court went fur­ther to say that if a ref­er­en­dum in favour of se­ces­sion was car­ried out, the rest of Canada would have an obli­ga­tion to ne­go­ti­ate con­sti­tu­tional changes with the Quebec govern­ment to re­spond to the Que­be­cois de­sire to se­cede. Ac­cord­ing to the court, nei­ther the fed­eral govern­ment, nor the other pro­vin­cial gov­ern­ments, would have a ba­sis to deny the right of the govern­ment of Quebec to pur­sue se­ces­sion. Two pro­vin­cial ref­er­en­dums had pre­vi­ously held in 1980 and 1995. Ma­jor­ity of the vot­ing pub­lic re­jected the idea of sep­a­ra­tion.

Dif­fer­ent coun­tries have dif­fer­ent forms of govern­ment they op­er­ate. They also have dif­fer­ent eth­nic, cul­tural and po­lit­i­cal pe­cu­liar­i­ties. It is, there­fore, im­prac­ti­cal for one coun­try to adapt an­other's po­si­tion on is­sues, in­clud­ing se­ces­sion.

So, while I am not call­ing for a con­sti­tu­tional amend­ment that would al­low uni­lat­eral re­gional se­ces­sion, I do be­lieve there is a lot of wis­dom in cre­at­ing a rec­og­niz­able process for ad­dress­ing the dis­af­fec­tion of a re­gion within the coun­try. Apart from di­a­logue, the process could lead to a con­sti­tu­tional ref­er­en­dum. From the ex­pe­ri­ence of other coun­tries, se­ces­sion­ists don't al­ways win the ref­er­en­dum in well­func­tion­ing States. But the ref­er­en­dum tends to lay to rest the ag­i­ta­tion. Un­cer­tain­ties about progress in a new state would tend to out­weigh the is­sues with re­main­ing in the ex­ist­ing state. A con­sti­tu­tional path­way to se­ces­sion could also make the coun­try take ex­ist­ing na­tion­build­ing frame­works more se­ri­ously.

Nige­rian Pres­i­dent Muham­madu Buhari

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