The Indivisibility of Nigeria, the Biafra Agitation, and the Law
“Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.” Section 2 (1) of the 1999 Constitution of the Federal Republic of Nigeria
Since independence in 1960, no section of the country has agitated for separate existence more than the Igbos, but they were not the first ethnic group to make such demand. Isaac Adaka Boro, an Ijaw man, led a sizeable number of his Ijaw people to wage war against the government of Nigeria when the late General Aguiyi Ironsi, an Igbo, was the Head of State. He did this in order to carve out an independent republic for the Ijaw people of the Niger Delta. His troops were defeated and Boro, along with some of his lieutenants, was tried and convicted of treason.
Another incident that was close to the waging of war against the federal government was the treasonable trial of the foremost leader of the Yoruba, Chief Obafemi Awolowo and a number of his followers. The allegation against Awolowo was that he attempted to forcefully overthrow the Government of the Federal Republic of Nigeria, though not an attempt to carve an independent state for the Yoruba out of the country as Boro attempted.
However, the most far-reaching attempt at secession was the one led by late Col. Chukwuemeka Ojukwu between 1967 and 1970. The Federal Military Government under the then Head of State, General Yakubu Gowon, defeated the Biafran forces and today, the ethnic enclave regarded as Biafra is still part of the Federal Republic of Nigeria. Nevertheless, discontents, agitations, and complaints of injustice and marginalisation against Nigeria as presently constituted by different ethnic and regional groups that make up the country have not stopped.
However, the most far-reaching attempt at secession was the one led by late Col. Chukwuemeka Ojukwu between 1967 and 1970. The Federal Military Government under the then Head of State, General Yakubu Gowon, defeated the Biafran forces and today, the ethnic enclave regarded as Biafra is still part of the Federal Republic of Nigeria. Nevertheless, discontents, agitations, and complaints of injustice and marginalisation against Nigeria as presently constituted by different ethnic and regional groups that make up the country have not stopped.
There are groups in Yoruba land that have been calling for the restructuring of the country for many years, and ethnic groups in other parts of the country are making their demands too, but none has been more vociferous in their call for the dismemberment of Nigeria and creation of a separate and independent country than the Indigenous Peoples of Biafra (IPOB) under the leadership of Mr Nnamdi Kanu. It should be stated that while IPOB enjoys a substantial following in the Southeast of Nigeria, it is not the official mouthpiece of the region, unlike when Col. Ojukwu, as the Military Governor of the region, declared the State of Biafra in 1967. The region now has five states, namely Abia, Imo, Enugu, Anambra, and Ebonyi. Each of the states has its constituted authority. Till this moment, the governments of these states have not declared their intention to leave the federation nor demanded a separate entity out of Nigeria for their region.
In the light of the IPOB agitation, the question that arises is this: is secession lawful, whether under the Nigerian law or international law?
The Nigerian Constitution, the supreme law of the land, states that the Federal Republic of Nigeria shall be indivisible and indissoluble. The meaning is clear and unambiguous - secession is unlawful! But a question that readily comes to mind is: if a section of the country wishes to leave the federation, is it an offence or how can such a section achieve its wish? Although the Nigerian law does not declare secession an offence, it is also not a lawful act. It is an established fact that, by virtue of the Constitution, no action constitutes an offence, unless it is defined as one in a written law with punishment prescribed. So, as long as secession is not stated to be an offence under any law in Nigeria, charging any person with it may not be more than an exercise in futility. Secession is only unlawful because the Constitution forbids attempts to dismember the Nigerian federation. However, no law provides a criminal consequence for an attempt by any section or group to secede. Anyway, there is no record of any country in the world where secession is criminalised.
In spite of the anti-secession posture of the Nigerian Constitution, secession can still occur in Nigeria. There are two ways by which this can happen, lawfully and unlawfully. First, the Constitution may be amended by creating conditions to be fulfilled by any component part that may wish to break away from the federation or by removing the words “indivisibility” and “indissolubility” from the Constitution. Second, through armed struggle, though unlawful, a region or section that wants to secede may achieve its goal. This is certainly a repeat of the civil war which will not be in the best interest of either the secessionist region or the rest of the country. The latter option is clearly a criminal act and the secessionist forces will be liable to criminal prosecutions and punishments, unless they succeed in their attempt to secede.
It will be recalled that the immediate past president, Dr Goodluck Jonathan, while setting up the National Conference of 2014, declared deliberations on the re-negotiation of the continued existence of Nigeria as a no-go area for the delegates. In fact, such stance was not peculiar to the Jonathan-led administration; successive Nigerian governments have consistently maintained the same position, proclaiming the unity of Nigeria as non-negotiable. The implicit implication of retaining the “indivisibility and indissolubility” clause in our Constitution is that it empowers the Federal Government to muster all efforts to counter any component part or group that ever attempts to dismember the country. However, it is imperative to note that nothing is as desirable as giving Nigerians the opportunity to discuss and agree on the conditions and terms of their togetherness. Anything short of that portends a frightening future for the country.
In view of the position maintained earlier in this article, a question that is likely to linger in the mind of a careful reader is: if secession is not an offence, why is the federal government putting Mr Kanu and his colleagues on trial for their secessionist agenda?
The simple answer is that Mr. Kanu and his colleagues are standing criminal trial for treasonable felonies and some other offences. If such words as “secession” or “proclamation of the Republic of Biafra” appear in the charges against them, it has to be in relation to acts of violence or threats of violence or unlawful possession of firearms in the course of their agitation for the Republic of Biafra. Secession in itself, for the sake of emphasis, is neither an offence nor a treason or treasonable felony under the Nigerian law as long as violence or possession of firearms is not involved. Section 41 of the Criminal Code Act, when closely read and accorded its ordinary meaning, does not criminalise secession. Rather, the Section criminalises intention or plan to overthrow a constituted authority such as the president or a governor. Secession does not have to involve overthrow of government or waging of war. However, I am equally aware that Kanu and his men are being tried under the same Section 41 and for this reason, I will not say anything more because it offends the principle of sub judice for me to do so.
Having discussed secession under the Nigerian law, I now move on to international law. International law represents statutes that set up certain international and regional organisations to which Nigeria is a member, such as international human rights treaties, conventions and the like. Those who argue in support of the existence of the right to secede under international law have always relied on the right to self-determination under some international treaties like the African Charter on Human and Peoples’ Rights. Nigeria, though a member of the international community and signatory to a number of treaties, operates a dualist system, which means that no international treaty enjoys any status of enforceability within its territory, unless such a treaty has been domesticated by the National Assembly. One of the few treaties that have been so far domesticated is the African Charter on Human and Peoples’ Rights. Article 20 of the Charter, in particular, provides for the right to self-determination. But what does this right mean? Does it include right to secede?
There is an extensive literature on the meaning and scope of the right to self-determination. Three interpretations are prevalent. One, it means the right of every State to self-rule. This applies to countries that are still subject to foreign domination or colonial rule. Two, it means the right of people in every country to participate in their own government. And three, it means the right of an oppressed and victimised people or ethnic group within an independent country to exit such State and form their own government. This is called a right to remedial secession under international law. This has played out in Eritrea which seceded from Ethiopia, Kosovo from Serbia, and South Sudan from Sudan. However, these countries only succeeded after many years of war and victimisation from their own parent countries. Can we say that the Igbo people have suffered deprivations and flagrant human rights violations from the Nigerian State which could be likened to the case of South Sudan or Kosovo? It is not entirely clear.
It is generally believed by many Nigerians, especially among those who are not of the Igbo extraction, that the deprivations and sufferings prevalent in Igbo land are replica of what the people of other ethnic groups are also experiencing. The failure of the Nigerian State is attributable squarely to the failure of leadership and pervasive corruption. There is little evidence to support the assertion that the people of the Eastern Nigeria have been singled out for persecution, human rights abuses, and other acts of injustice. The Igbo people are the ones ruling themselves in the Southeast, no imposition of rulers on them of persons outside their ethnic background and indigenes of the region are equally members of the federal government. For instance, Dr Ike Ekweremadu, the current Deputy Senate President, is an Igbo. The Igbo people, like other ethnic groups, have always occupied key positions in government at different times. To that extent, it cannot be said that the conditions that should precede agitation for break-up are in place. This is important if a break-away State will enjoy recognition among the comity of nations. The necessity of international relations in today’s world cannot be over-emphasized as no nation can exist in isolation.
In the light of the IPOB agitation, the question that arises is this: is secession lawful, whether under the Nigerian law or international law?
The Nigerian Constitution, the supreme law of the land, states that the Federal Republic of Nigeria shall be indivisible and indissoluble. The meaning is clear and unambiguous - secession is unlawful! But a question that readily comes to mind is: if a section of the country wishes to leave the federation, is it an offence or how can such a section achieve its wish? Although the Nigerian law does not declare secession an offence, it is also not a lawful act. It is an established fact that, by virtue of the Constitution, no action constitutes an offence, unless it is defined as one in a written law with punishment prescribed. So, as long as secession is not stated to be an offence under any law in Nigeria, charging any person with it may not be more than an exercise in futility. Secession is only unlawful because the Constitution forbids attempts to dismember the Nigerian federation. However, no law provides a criminal consequence for an attempt by any section or group to secede. Anyway, there is no record of any country in the world where secession is criminalised.
In spite of the anti-secession posture of the Nigerian Constitution, secession can still occur in Nigeria. There are two ways by which this can happen, lawfully and unlawfully. First, the Constitution may be amended by creating conditions to be fulfilled by any component part that may wish to break away from the federation or by removing the words “indivisibility” and “indissolubility” from the Constitution. Second, through armed struggle, though unlawful, a region or section that wants to secede may achieve its goal. This is certainly a repeat of the civil war which will not be in the best interest of either the secessionist region or the rest of the country. The latter option is clearly a criminal act and the secessionist forces will be liable to criminal prosecutions and punishments, unless they succeed in their attempt to secede.
It will be recalled that the immediate past president, Dr Goodluck Jonathan, while setting up the National Conference of 2014, declared deliberations on the re-negotiation of the continued existence of Nigeria as a no-go area for the delegates. In fact, such stance was not peculiar to the Jonathan-led administration; successive Nigerian governments have consistently maintained the same position, proclaiming the unity of Nigeria as non-negotiable. The implicit implication of retaining the “indivisibility and indissolubility” clause in our Constitution is that it empowers the Federal Government to muster all efforts to counter any component part or group that ever attempts to dismember the country. However, it is imperative to note that nothing is as desirable as giving Nigerians the opportunity to discuss and agree on the conditions and terms of their togetherness. Anything short of that portends a frightening future for the country.
In view of the position maintained earlier in this article, a question that is likely to linger in the mind of a careful reader is: if secession is not an offence, why is the federal government putting Mr Kanu and his colleagues on trial for their secessionist agenda?
The simple answer is that Mr. Kanu and his colleagues are standing criminal trial for treasonable felonies and some other offences. If such words as “secession” or “proclamation of the Republic of Biafra” appear in the charges against them, it has to be in relation to acts of violence or threats of violence or unlawful possession of firearms in the course of their agitation for the Republic of Biafra. Secession in itself, for the sake of emphasis, is neither an offence nor a treason or treasonable felony under the Nigerian law as long as violence or possession of firearms is not involved. Section 41 of the Criminal Code Act, when closely read and accorded its ordinary meaning, does not criminalise secession. Rather, the Section criminalises intention or plan to overthrow a constituted authority such as the president or a governor. Secession does not have to involve overthrow of government or waging of war. However, I am equally aware that Kanu and his men are being tried under the same Section 41 and for this reason, I will not say anything more because it offends the principle of sub judice for me to do so.
Having discussed secession under the Nigerian law, I now move on to international law. International law represents statutes that set up certain international and regional organisations to which Nigeria is a member, such as international human rights treaties, conventions and the like. Those who argue in support of the existence of the right to secede under international law have always relied on the right to self-determination under some international treaties like the African Charter on Human and Peoples’ Rights. Nigeria, though a member of the international community and signatory to a number of treaties, operates a dualist system, which means that no international treaty enjoys any status of enforceability within its territory, unless such a treaty has been domesticated by the National Assembly. One of the few treaties that have been so far domesticated is the African Charter on Human and Peoples’ Rights. Article 20 of the Charter, in particular, provides for the right to self-determination. But what does this right mean? Does it include right to secede?
There is an extensive literature on the meaning and scope of the right to self-determination. Three interpretations are prevalent. One, it means the right of every State to self-rule. This applies to countries that are still subject to foreign domination or colonial rule. Two, it means the right of people in every country to participate in their own government. And three, it means the right of an oppressed and victimised people or ethnic group within an independent country to exit such State and form their own government. This is called a right to remedial secession under international law. This has played out in Eritrea which seceded from Ethiopia, Kosovo from Serbia, and South Sudan from Sudan. However, these countries only succeeded after many years of war and victimisation from their own parent countries. Can we say that the Igbo people have suffered deprivations and flagrant human rights violations from the Nigerian State which could be likened to the case of South Sudan or Kosovo? It is not entirely clear.
It is generally believed by many Nigerians, especially among those who are not of the Igbo extraction, that the deprivations and sufferings prevalent in Igbo land are replica of what the people of other ethnic groups are also experiencing. The failure of the Nigerian State is attributable squarely to the failure of leadership and pervasive corruption. There is little evidence to support the assertion that the people of the Eastern Nigeria have been singled out for persecution, human rights abuses, and other acts of injustice. The Igbo people are the ones ruling themselves in the Southeast, no imposition of rulers on them of persons outside their ethnic background and indigenes of the region are equally members of the federal government. For instance, Dr Ike Ekweremadu, the current Deputy Senate President, is an Igbo. The Igbo people, like other ethnic groups, have always occupied key positions in government at different times. To that extent, it cannot be said that the conditions that should precede agitation for break-up are in place. This is important if a break-away State will enjoy recognition among the comity of nations. The necessity of international relations in today’s world cannot be over-emphasized as no nation can exist in isolation.
However, the predominant view among the people of the Eastern Nigeria is that the Federal Republic of Nigeria has been incomparably unkind and unfair to their region. They complain of monumental environmental degradation due to erosion; marginalisation in sensitive political appointments and allocation of federal projects and institutions. In fact, just recently, a former national president of the Nigerian Bar Association, Dr Olisa Agbakoba, a Senior Advocate of Nigeria (SAN) and an Igbo, filed a fundamental rights class action against the federal government at the Federal High Court for himself and on behalf of the entire people of the Eastern Nigeria. Most, if not all, of the complaints captured in the law suit are the same basis why IPOB is calling for the break-up of Nigeria and the declaration of the sovereign state of Biafra. While the step taken by Dr Agbakoba is commendable, I, like many others, eagerly wait to see the precedent that his novel case is going to set, whichever way it is decided.
It is also very doubtful if the African Charter on Human and Peoples’ Rights can give a right which does not exist under the Nigerian Constitution, bearing in mind that in the hierarchy of laws, the Charter, though a legislation with international flavour, is not superior to the Constitution. Generally, right to secede is not a popular right under international law. The divisions of the Czechoslovakia and Soviet Union as well as the dissolution of the Yugoslavia Republic were not regarded as secessions by the international community. The annexation of Crimea by Russia from Ukraine- which it was formerly part of- is seen as a demonstration of Russia’s contempt for the international legal order. The Charters of the United Nations and African Union seriously protect sovereignty of independent States and their territorial integrity. As far back as 1964, African countries, under the aegis of the old Organisation of African Unity (OAU), passed a resolution to ensure that the boundaries of each African nation remain intact and undisturbed. Under international law, this is known as uti possidetis. The essence of this principle is to forestall balkanization of the continent due to the dissatisfaction with the composition of individual States in Africa as in the case of the Biafran people.
As a matter of fact, there is no country in Africa that does not have elements of discontented people who feel short-changed by the arbitrary maps and boundaries drawn up by the colonialists at the notorious Berlin Conference of 1884/85. A typical example is the on-going agitation of the English-speaking people of the Southwest and Northwest Cameroon for the declaration of the Republic of Ambazonia. Out of the ten regions that constitute Cameroon, Southwest and Northwest are the only two that have English as their official language. These Cameroonians want to secede (or separate, as some prefer to put it) from Cameroon because, according to them, they are being treated as second-class citizens by the French-speaking majority Cameroonians. While the Yoruba, for instance, recognise the flaws in the formation and composition of Nigeria and have called for its restructuring, some ethnic groups in the Southeast prefer a break-up of the country as a way out of what they have described as a fraud and a lie over the years. However, this is by no means an attempt to set up the Yoruba as a moral exemplar for the Igbo. It is rather an effort to make the Igbo see another alternative to resolving the Nigerian problem apart from seceding.
In view of the position of both national and international laws, secession does not appear an option that can give IPOB and others like it their desired objective. It is, therefore, advisable for the agitators for the Republic of Biafra to be more realistic and to think of ways to make Nigeria work where equity, justice, and fairness prevail, a Nigeria where every citizen, irrespective of his/her religious affiliation or ethnic origin, can aspire to the highest position of leadership in the land and attain it on account of merit. Discrimination in public life on the basis of gender, faith or ethnicity must stop. It is only in such environment that all the component parts that constitute the country will feel fulfilled and live harmoniously.
This article by Kehinde ADEGBITE Esq was originally published on www.ikengachronicles.com on May 8, 2017.
It is also very doubtful if the African Charter on Human and Peoples’ Rights can give a right which does not exist under the Nigerian Constitution, bearing in mind that in the hierarchy of laws, the Charter, though a legislation with international flavour, is not superior to the Constitution. Generally, right to secede is not a popular right under international law. The divisions of the Czechoslovakia and Soviet Union as well as the dissolution of the Yugoslavia Republic were not regarded as secessions by the international community. The annexation of Crimea by Russia from Ukraine- which it was formerly part of- is seen as a demonstration of Russia’s contempt for the international legal order. The Charters of the United Nations and African Union seriously protect sovereignty of independent States and their territorial integrity. As far back as 1964, African countries, under the aegis of the old Organisation of African Unity (OAU), passed a resolution to ensure that the boundaries of each African nation remain intact and undisturbed. Under international law, this is known as uti possidetis. The essence of this principle is to forestall balkanization of the continent due to the dissatisfaction with the composition of individual States in Africa as in the case of the Biafran people.
As a matter of fact, there is no country in Africa that does not have elements of discontented people who feel short-changed by the arbitrary maps and boundaries drawn up by the colonialists at the notorious Berlin Conference of 1884/85. A typical example is the on-going agitation of the English-speaking people of the Southwest and Northwest Cameroon for the declaration of the Republic of Ambazonia. Out of the ten regions that constitute Cameroon, Southwest and Northwest are the only two that have English as their official language. These Cameroonians want to secede (or separate, as some prefer to put it) from Cameroon because, according to them, they are being treated as second-class citizens by the French-speaking majority Cameroonians. While the Yoruba, for instance, recognise the flaws in the formation and composition of Nigeria and have called for its restructuring, some ethnic groups in the Southeast prefer a break-up of the country as a way out of what they have described as a fraud and a lie over the years. However, this is by no means an attempt to set up the Yoruba as a moral exemplar for the Igbo. It is rather an effort to make the Igbo see another alternative to resolving the Nigerian problem apart from seceding.
In view of the position of both national and international laws, secession does not appear an option that can give IPOB and others like it their desired objective. It is, therefore, advisable for the agitators for the Republic of Biafra to be more realistic and to think of ways to make Nigeria work where equity, justice, and fairness prevail, a Nigeria where every citizen, irrespective of his/her religious affiliation or ethnic origin, can aspire to the highest position of leadership in the land and attain it on account of merit. Discrimination in public life on the basis of gender, faith or ethnicity must stop. It is only in such environment that all the component parts that constitute the country will feel fulfilled and live harmoniously.
This article by Kehinde ADEGBITE Esq was originally published on www.ikengachronicles.com on May 8, 2017.
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