(Part 1 Of Riposte To Mr. Aikpokpo-Martins)

By Sylvester C. Udemezue

BACKGROUND

This is a four-part opinion, provoked by a commentary published in the June 03, 2021 edition of the Nation Newspapers, Nigeria, and titled, “Constitution requires Buhari to crush Kanu, Igboho, says NBA Vice President”, and credited to Mr John O. Aikpokpo-Martins, current 1st Vice President of the Nigerian Bar Association (NBA) and the National Chairman of the Human Rights Committee of the NBA. In the article, the author, Mr. Aikpokpo-Martins argued, in summary, inter alia, that (1). There’s is no room under Nigerian law for agitations for Self-Determination, and that (2). the Nigerian President who swore to defend the Constitution is required by the Nigerian Constitution to “crush” all and any such agitations for Self-Determination. My reaction is calculated to critically examine Mr. Aikpokpo-Martins’ said opinion with a view to determining to what extent, if any it could be said to enjoy support in extant law, both or whether of Nigeria and/or internationally. What is self-determination? What is agitation? Are such allowed by Nigerian law? How should governments handle such agitations? When did such agitations begin in Nigeria? Their dimensions, symptoms and implications for Nigeria`s unity, stability and progress? Does the Nigerian Constitution encourage Presidential “crushing” of agitations for self-determination? How do we distinguish genuine agitation (if any) from criminality under the guise of agitation? How does Nigeria avoid, forestall or minimize such agitations? I think Mr. Aikpokpo-Martins’ said commentary has thrown up a golden opportunity for comprehensive, holistic analyses of all legal issues surrounding agitations for self-determination with a view to recommending the best way out of this recurring phenomenon in Nigeria. Part 1 of this discussion (the introductory part) looks at meaning of Self-Determination and whetherto there are legal foundations in International Law or municipal law. Part 2 focuses on determining Constitutionality, Dimensions, Causes, Symptoms and Implications of Agitations for Self-Determination in Nigeria. Part 3, while critically analyzing Mr. Aikpokpo-Martins’ Call on the Nigerian President to “Crush” all agitations/agitators for Self-Determination in Nigeria, discusses and recommends reasonable, fair and legally justifiable ways of handling such agitations to promote equity, peace, inclusiveness and stability, which are basic requirements for progress. Finally, Part 4 which is expository in nature, merely chronicles the historical development of agitations for self determination in Nigeria, why such agitation keep occurring and reoccurring, and what Nigeria must do to permanently forestall or minimize such agitations in order to pave way for genuine peace, unity, stability and progress for Nigeria.

PART 1: MEANING AND LEGAL FOUNDATIONS OF AGITATIONS FOR SELF-DETERMINATION IN NIGERIA

Meaning of Self Determination

Defining the term self-determination with precision is not an easy task, although the concept has gained very wide acceptance in recent times, among the various peoples of the world.[i] Reechoing this sentiment, the Australian Attorney-General`s Department has this to say:[ii]

While there is no universally accepted agreement as to the content of the right to self-determination, it is agreed that at a minimum, it entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to pursue their economic, social and cultural development….Self-determination is a right that pertains to groups of people, not individuals.

This author believes that self-determination as a concept in customary International Law refers to the right of a people to determine their fate and have control over their own affairs as a sovereign. Self determination usually develops from the feeling of a group of people who have a common identity, understanding, usually, but not necessarily, with a common cultural, language and ethnic historical background, that they posses the right to form their own country and form their own system of governance.[iii] Self determination began as a follow-up to the concept of nationalism. Among the earliest demonstrations of the concept were the French and American revolutions.

International Legal Foundations of Self-determination

According to Cornell University`s Legal Information Institute, self determination, “is a core principle of international law, arising from customary international law, …recognized as a general principle of law, …enshrined in a number of international treaties”.[iv] Article 1, Part 1 of the International Covenant on Civil and Political Rights[v] guarantees the right of all peoples to self-determination, and proceeds to define self-determination as the right to “freely determine their political status and freely pursue their economic, social and cultural development”. The Convention also directs[vi] “The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories” to “promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations”. Although the instrument is not mandatory, but is more concerned with the need to protect expression of the right of indigenous people, the United Nations Declaration on the Rights of Indigenous Peoples[vii] grants the right to self-determination to all indigenous peoples who shall be entitled to “freely determine their political status and freely pursue their economic, social and cultural development”.[viii]

In the ICJ[ix] case of Western Sahara,[x] the International Court of Justice (ICJ) observed that the right to self-determination comprises in recognition of the right of a people to freely express their will and to determine their destiny.[xi] The United Nations` Declaration on the Granting of Independence to Colonial Countries and Peoples[xii] also recognizes the right of all peoples to self-determination, pursuant to which they may “freely determine their political status and freely pursue their economic, social and cultural development”.

Right to Self-Determination In Africa

Article 20 of the African Charter on Human and Peoples’ Rights,[xiii] in guaranteeing the right of every people to self-determination, provides as follows:

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. (2) Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community…. The African Charter on Human and Peoples’ Rights was adopted, ratifified by Nigeria and domesticated by an Act of Nigeria`s National Assembly known as the “African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act No 2 of 1983, Cap A9, Laws for the Federation of Nigeria, 2004 (it was Cap 10, LFN, 1990). The long title[xiv] of the Act states that it is “An Act to enable effect to be given in the Federal Republic of Nigeria to the African Charter on Human and Peoples’ Rights made in Banjul on the 19th day of January, 1981 and for purposes connected therewith”. The commencement date in Nigeria, of the Act, was 17 March 1983. The Preamble provides thus:

Whereas a Charter entitled the “African Charter on Human and Peoples’ Rights” has been duly adopted by divers States in Africa and Nigeria is desirous of adhering to the said Charter: And whereas it is necessary and expedient to make legislative provision for the enforcement in Nigeria of the said Charter by way of an Act of the National Assembly: (1). As from the commencement of this Act, the provisions of the African Charter on Human and Peoples’ Rights which are set out in the Schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.

The Preamble of an a legal instrument or legislation is the introductory part of a instrument/legislation, stating its purpose, aims, and justification. Article 20 of the Act, which is a replication of Article 20 of the African Charter on Human and Peoples’ Rights, provides:

All peoples shall have 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. 2. Colonised or oppressed people shall have the right to free themselves from the bonds of domination by resorting to any means recognised by the international community… (emphasis mine) This is a Nigerian enactment, an extant law in Nigeria. Discussions of legality or otherwise, in Nigeria, of agitations for self-determination is part of what Part 2 discusses.

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Now, watch out for Part 2: “Constitutionality, Dimensions, Causes, Symptoms and Implications of Agitations for Self-Determination in Nigeria”.

Thank you for reading me.

Respectfully,

Sylvester C. Udemezue (udems)., +2348109024556., mrudems@yahoo.com.

(June 03, 2021)

[i] Hannum H., Autonomy, Sovereignty, and Self-Determination The Accommodation of Conflicting Rights (2nd ed., University of Pennsylvania Press, 1990) 27

[ii] “Right to Self-Determination” (Attorney-General’s DepartmentAugust 31, 2020) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-self-determination#what-is-the-right-to-selfdetermination> accessed May 16, 2021

[iii]“Self-Determination” (Encyclopædia Britannica) <https://www.britannica.com/topic/self-determination> accessed May 16, 2021

[iv]“Self Determination (International Law)” (Legal Information Institute) <https://www.law.cornell.edu/wex/self_determination_(international_law)#:~:text=Self-determination denotes the legal,a number of international treaties.> accessed May 16, 2021

[v] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49 thereof. Available at <https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> accessed May 16, 2021. Exactly the same provisions are made in Article 1, Part of the International Covenant On Economic, Social And Cultural Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976, in accordance with article 27; available at <https://treaties.un.org/doc/treaties/1976/01/19760103%2009-57%20pm/ch_iv_03.pdf> accessed May 16, 2021.

[vi] Op Cit, article 1(3)

[vii] Adopted by the United Nations` General Assembly on 13 September 2007. available at <https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>

[viii] Article 3

[ix] Abbreviation for International Court of Justice

[x] “Western Sahara, Advisory Opinion, ICJ GL No 61, [1975] ICJ Rep 12, ICGJ 214 (ICJ 1975), 16th October 1975, United Nations [UN]; International Court of Justice [ICJ]” (Oxford Public International Law) <https://opil.ouplaw.com/view/10.1093/law:icgj/214icj75.case.1/law-icgj-214icj75#:~:text=library card number-,Western Sahara, Advisory Opinion, ICJ GL No 61, [,International Court of Justice [ICJ]> accessed May 16, 2021

[xi] Ibid

[xii] “Declaration on the Granting of Independence to Colonial Countries and Peoples” (OHCHR) <https://www.ohchr.org/EN/ProfessionalInterest/Pages/Independence.aspx> accessed May 16, 2021

[xiii] Availabale at: <https://www.achpr.org/legalinstruments/detail?id=49> accessed July 03, 2021.

[xiv] The long title is intended to provide a summarised description of the purpose or scope of the instrument.

In this article: