PAUL ARKWRIGHT AND THE INDIVISIBILITY OF NIGERIA: A LESSON IN INTERNATIONAL LAW
Asked about the position of Britain on the groups pushing for independence from Nigeria, the envoy said the UK remained firm in its support for one Nigeria. We have therefore taken time to painstakingly analyse this statement credited to the British Envoy and we find it very unfortunate and distasteful that a seasoned diplomat of Mr. Arkwright’s standing could have displayed such ignorance of international law and protocol. From our very careful observation, we are of the view that two factors could have been responsible for Mr.
Arkwright’s uncharacteristic diplomatic blunder. The first that immediately comes to mind is ignorance and the second, which is equally unfortunate, even more so than the first, is mischief. Riding on these assumptions, we shall now take the liberty of this press statement to address these two possible inadequacies which His Excellency might be suffering from and to clear every doubt his stance may have engendered in the minds of a largely undiscerning and docile populace. PRESUMED IGNORANCE: We would want to presume that the statement of Mr. Arkwright may have been influenced by that opening phrase in the Gen.
Abdulsalami Abubakar (Nigerian) 1999 Constitution which reads as follows: “We the people of the Federal Republic of Nigeria Having firmly and solemnly resolved, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God,…” We make haste therefore to inform Mr. Arkwright that even the most poorly lettered man on the streets of Lokoja (venue of Mr. Arkwright’s public lecture) agree that the Amended Gen. Abdulsalami Abubakar 1999 Constitution lied about itself and that the first lie in that Constitution is the wasteful phrase: “We the people”. It is the duty of IPOB to clear the illusions this deceptive phrase might have planted in the pliable mind of Mr. Arkwright and others like him.
No doubt, the above phrase seeks to convey the misleading impression that ordinary people of Nigeria willingly in a conference, meeting or assembly convened by Gen. Abdulsalami Abubakar somewhere in Abuja in 1999 agreed to vest immutable non-negotiable sovereignty on the Nigerian nation through the instrumentality of the said 1999 Constitution. This is a blatant lie, deception and fraud concocted by self serving individuals in Nigeria to deceive themselves and those not enlightened enough to know what is being done in their name. Not minding the obvious limitations and inherent defects of the Gen. Abdulsalami Abubakar 1999 Constitution by virtue of the lie "We the people....." preamble, we recognise the centrality of sovereignty in the field of International law. However, as rigid and important as this concept may be to the proponents of One Nigeria, it still admits and recognises some notable exceptions. It is therefore not immutable and cannot as a result be construed in absolute terms. In other words, sovereignty of states under international law is not cast in iron and can be broken or dissolved.
The point IPOB is making here is to the effect that, in the exercise of the sovereign powers bestowed on it, an artificial creation like the Nigerian state or indeed any other country, can limit its own sovereignty or surrender a part of same. The truth as it stands today is that the Nigerian state, has out of its own volition already surrendered Nigerian sovereignty over Bakassi Peninsular, which therefore enables any part of Nigeria or section thereof to secede when they so decide, contrary to the wishes and ambitions of the neo-colonialists like Mr. Arkwright. This is equally true and remains same for even Great Britain whom Mr. Arkwright represents in Nigeria. Let us explain.
We will use English judicial authorities to convey the message home to the British Envoy before we turn to the Nigerian judicial authorities. In the case of Blackburn vs. Attorney-General, Court of Appeal (Civil Division)  EWCA Civ J0510-2,  1 WLR 1037 where Mr. Blackburn was concerned about the application of Her Majesty's government to join the European Common Market by seeking to sign up to the Treaty of Rome. He brought two actions against Her Majesty's Government Edward Heath through the then Attorney-General, in which he sought declarations to the effect that, by signing the Treaty of Rome, Her Majesty's Government will surrender in part the sovereignty of The Crown in Parliament (British people) forever. He canvassed the view that in so doing the Government will be acting in breach of the law.
Mr. Blackburn pointed out that many regulations made by the European Economic Community will become automatically binding on the people of Great Britain: and that all the Courts of Great Britain, including the House of Lords, will have to follow the decisions of a foreign European Court in certain defined respects, including the drafting of the Treaty itself. To buttress his point Mr. Blackburn made reference to an earlier decision by the Court of Common Market Costa v. E. N. E. L. ( 1964 Common Market Law Reports, 425) in February, 1964, in which the European Court in its judgment said that: ".….the member states, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves". When this contention over the sanctity of sovereignty came before the Court of Appeal in England, a majority of the panel of judges (Lord Denning dissenting) reasoned and held that the power to enter into Treaties was itself a power of the Crown acting on advice from ministers. In simple terms, it means that sovereignty can indeed be tampered with by a government and as such cannot be held to be sacrosanct.
THE POSITION WITH THE NIGERIA STATE:
There is no doubt that the Nigerian Head of State (President) has the powers to enter into treaties with foreign nations (both bilateral and multilateral) which is binding on the whole Nigerian state. Section 12 of the Amended Gen. Abdulsalami Abubakar 1999 Constitution has laid down the procedure for the domestication of such treaties as a condition precedent to their activation as a law in Nigeria. There is no question regarding the binding nature of the Universal Declaration of Human Rights (providing among others for the right to self-determination) on the Nigerian state. Equally true is the fact that not only that Nigeria is a signatory to the African Charter on Human and Peoples’ Rights, the Nigerian Parliament has entrenched the said Charter as part of the corpus juris of the country by way of domestication in compliance with the dictates of section 12 of the Constitution earlier referred to. It should be noted that Article 20 of the African Charter on Human and Peoples’ Right most lucidly proclaims in clear language that: “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.” As we earlier stated, the African Charter on Human and Peoples’ Right became part of Nigerian laws by virtue of African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act), Cap 10, Laws of the Federation (LFN), 1990.
The status of this very important legislation came up for interpretation before the Nigerian Supreme Court in the case of Abacha vs. Fawehinmi (2001) 51 WRN 29; (2000) 6 NWLR 228, (2002) 3 LRC 296, (2001) 1 CHR 95. In answering that crucial question, Justice Ogundare (of blessed memory) delivering the lead judgment of the full panel of the Nigerian Supreme Court had this to say: “Where, however, the treaty is enacted into law by the National Assembly, as was the case with the African Charter which is incorporated into our municipal (i.e. domestic) law by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria 1990 (hereinafter is referred to simply as Cap. 10), it becomes binding and our Courts must give effect to it like all other laws falling within the Judicial power of the Courts. By Cap. 10 the African Charter is now part of the laws of Nigeria and like all other laws the Courts must uphold it. The Charter gives to citizens of member states of the Organisation of African Unity rights and obligations, which rights and obligations are to be enforced by our Courts, if they must have any meaning… No doubt Cap. 10 is a statue with international flavour. Being so, therefore, I would think that if here is a conflict between it and another statue, its provisions will prevail over those of that other statue for the reason that it is presumed that the legislature does not intend to breach an international obligation. To this extent I agree with their Lordships of the Court below that the Charter possesses "a greater vigour and strength" than any other domestic statue.” It is important to point out that the provision of Section 12 of the Nigerian Constitution declaring null and void any treaty entered between Nigeria and any other country/countries will not acquire the force of law in Nigeria until domesticated, holds no water in international law, nor before International Courts/Tribunals.
What this simply means is that the Nigerian state cannot, under any conceivable circumstance, resign from its obligation to honour any international treaty it freely entered into by citing its anachronistic domestic laws as a defence. In other words, Nigeria cannot point to its own domestic laws as constituting a limitation to the fulfilment of its obligation under any international treaty it freely entered into. Put more correctly, domestic laws cannot be allowed to constitute a drag on the operation of foreign laws under which a state party has undertaken to fulfil international obligations. Indeed, this is the heart and soul of Article 7 of the 1969 Vienna Convention on the Law of Treaties under International law.
The argument put up by the Government of Nigeria to the effect that Bakassi Peninsula could not be yielded up to Cameroun on the principal ground that section 12 of the Nigerian Constitution would need to be complied with so as to effectively delete Bakassi as a Local Government by way of Constitutional amendment was roundly rejected by the International Court of Justice. (See generally Cameroon v. Nigeria, ICJ Reports, 2002, pp. 303, 346.) Today, Bakassi Peninsula, formerly of Cross-Rivers State of Nigeria, is no more a Nigerian territory even without any constitutional amendment.
The Nigerian Supreme Court has now accepted this position as a correct representation of the law binding on the Nigerian state. A practical demonstration of this acceptance is made manifest in the case of Attorney-General of Cross-Rivers State vs. Attorney-General of the Federation and Anor (2005) 15 NWLR (Pt.947) pg 71 where the effect of the ICJ judgment on the erstwhile littoral segment of Cross-River State was captured thus; “The effect of the judgment of the International Court of Justice dated 10/10/2002 on the land and maritime boundary between Nigeria and Cameroun is that it has wiped off what use to be the estuarine sector of Cross River State as a result of which the State is hemmed in by the new international boundary between Nigeria and Cameroun. That being the case, there seems to not be any estuarine boundary between Akwa Ibom State and Cross River State with the result that Cross River no longer has a seaward boundary.” In fact, in a later 2012 case of Attorney-General of Cross-Rivers State vs. Attorney-General of the Federation and Anor, the Supreme Court (SC.250/2009), speaking through Rhodes-Vivour, J.S.C., was more punchy when it eloquently declared with a tone of finality that; “This Court has no jurisdiction to decide ownership of oil wells located on oil rich Bakasi Peninsula for the simple reason that Bakasi Peninsula is foreign territory. It is Cameroun land. Supreme Court jurisdiction is restricted to Nigeria land.” SUMMATION: The jurisprudential beacon offered by the galaxy of authorities examined above leaves us with the only conviction that Mr. Paul Arkwright’s position is out of tune with contemporary realities which reflects poorly on his standing as a seasoned diplomat. He must work hard to redeem his image which is being seen by many concerned Africans as one steeped in gross incompetence devoid of any intellectual depth.
A good starting point will be for him to acknowledge that this Nigerian state as presently constituted, created by his fellow countryman Frederick Luggard, has voluntarily, by domesticating Article 20 of the African Charter on Human and Peoples’ Right, accepted to give fillip to any section of the country wishing to secede by facilitating the exercise of that undeniable right through referendum as was recently done in the United Kingdom, where Mr. Arkwright comes from and is representing, regarding Scotland. The second duty on the part of Mr. Paul Arkwright is for him to wake up to his real duties by impressing upon the Nigerian Government the imperative of discharging its obligation (under UN Declaration and African Charter) of facilitating a referendum for a peaceful Biafra exit from Nigeria.
It is our hope that Mr. Paul Arkwright appreciates this new reality, otherwise we would be forced to draw the alternative inference that he set out ab initio to cause mischief and test the will and resolve of IPOB. This would be most unfortunate if it were to be so since the pervasive consequences of such an action will not spare anyone trying to subvert the will of the Biafran people. For record purposes, the Conservative Party led British Government of Theresa May has nothing to fear from the emergence of Biafra, after all we Biafrans are the most Anglophile of all races in Africa. Should Mr. Arkwright continue to pursue his flawed and misguided adventure of insisting on the indivisibility of their 'One Nigeria', it would be fatal and suicidal because we would never ever stop until Biafra is liberated. We wish to stop here.
Dr. Ikenna Chinaka Mrs Grace Ukpai