Some legal writers have argued the Nigeria expired on December 31 2013, by virtue of a supposed Amalgamation Treaty with which the country was amalgamated in 1914. But PRECIOUS Emeka in this piece, argues otherwise. He posits that there is no ‘Best before label’ on Nigeria; therefore, Nigeria has not , will not and can never expire through any existing legal regime.
As 2013 wound up, an argument gained considerable grounds. A supposed ‘Treaty of Amalgamation 1914’ was in focus. According to the proponents, the 1914 amalgamation of Nigeria would expire by 12.00 am on December 31, last year, when it would have lasted for 100 years. The burgle was apparently sounded by a notable lawyer and amplified by an ethnic nationality coalition.
It was alleged that Nigeria’s ‘treaty’ of amalgamation 1914 was to last for 100 years. Among the cacophony of voices was one that claimed that a consolidation of British treaties with ethnic nationalities formed an amalgamation ‘treaty’, which had a lifespan of 100 years. Are these position legally valid?
First is clarification of issues, for clear premises. The notion of a ‘Treaty’ of Amalgamation has no validity in law, fact or even history. Also the position of the emergence of a ‘treaty’ of amalgamation through a consolidation of several treaties with ethnic nationalities, is also legally unfounded. Assuming there was in fact a treaty of amalgamation, there is no rule in the Law of Treaties that fixed the lifespan of treaties at 100 years.
Contrary to the position of many of the expirationists, there is no document known as ‘Treaty’ of Amalgamation 1914 in Nigeria’s history. The British and other European traders made early contacts with some indigenous kingdoms. The kingdoms were treated with diplomacy in recognition of their sovereignty. The Europeans included the Portuguese, Spanish, French, Italians and the British, who dealt with Benin, Lagos, Bonny, Opobo, Calabar, Onitsha, Asaba, Egba, Oyo etc in trade and missions even before colonialism.
Before the treaties of cession, Europeans concluded bilateral treaties with some of these kingdoms. For example on January 1, 1852, King Akitoye of Lagos went onboard the British ship, HMS Penelope, and signed a treaty with Commodore Henry W. Bruce and Mr. John Beecroft for the abolition of slave traffic, encouragement of legitimate trade and protection of missionaries. The British imperialist scheme culminating in full colonisation was grounded in 1861 with the treaty of cession with Oba Docemo (Dosumu) of Lagos.
The Treaty of Cession of Lagos 1861 was achieved through gun boat diplomacy, literally. The ostensible reason given in extending British sovereignty over Lagos was to stop slave trade and check-mate the ravaging King of Dahomey. But with the Royal Navy’s cruiser HMS Prometheus, purposely brought into the Lagoon, and its guns pointing menacingly at Lagos, Oba Dosumu had little choice.
Dosumu transferred the port and Island of Lagos to the British Crown “forever”. Norman B. Bedingfield and William McCoskry signed for the Crown and Dosumu signed with four others. The British unfurled their flag and thus began to exercise sovereignty over Lagos, and in 1862 created it a Colony. With the return of Kosoko and his lieutenant, Tappa, to Lagos in 1863, Kosoko, who had earlier been exiled and later settled with Palma and Lekki, also ceded them to the British in exchange of pension.
With the success recorded in Lagos and environs, the British used similar device to exact treaties of “protection” from other indigenous sovereigns. Thus there was “friendship” and “protection” treaty with King Jaja of Opobo in 1884, signed onboard the HMS Flirt, anchored on Opobo River. A similar treaty of “protection” was entered with the Obi Akata and other 12 Obis and Queen Omu Nwanuka of Asaba on 1st November, 1884 with Edward Hyde Hewett.
On June 1, 1885, the then National African Company Limited (later Royal Nigeria Company) entered into a similar treaty with the Sultan of Sokoto, Umoru bin Ali, which was confirmed in 1890. Hundreds of similar “friendship” and “protection” treaties were signed with Native Chiefs across North and South. A treaty of commerce and friendship was signed with Abeokuta on January 18,1893 between Gilbert T. Carter and Alake Osokalu, which “fully recognised” the independence of the Egba country.
Apart from the Treaty with the Alake which ‘disingenuously’ (as later realised by the British after the amalgamation) allowed Egba independence as a country, the rest assigned entire territories and sovereignty to the British Crown in perpetuity. Material considerations were furnished in exchange of “protection”. The treaties were published in the London Gazette and competing foreign powers put on notice for recognition at international law.
Against this background, by January 1, 1914, British authorities would not feel the necessity for an amalgamation treaty, an action seen as mere administrative decision, in the same way a managing director would merge his Personnel department and Human Resources department for administrative efficiency. Such a chief executive officer wouldn’t need a general meeting resolution for this ‘internal re-arrangement’. Amalgamation should be understood in this sense and not in the nature of corporate mergers and acquisitions, which would have required more.
For economic reasons for amalgamation, some reports claim the Northern Protectorate ran on budget deficit, while the Southern Protectorate ran on surplus. The amalgamation was primarily to use the surplus to off-set the deficit. Some other reports indicate it was simply for ease of administration. Be that as it may, with a feeling of legitimate possession of the two protectorates “by treaty, grant, usage, sufferance and other lawful means”, Sir Frederick Lugard dispatched confidential reports to the Colonial Secretary to amalgamate the two territories.
Lugard secured approval by Letters Patent and Order in Council pursuant to Foreign Jurisdictions Act 1890; and the merger became a legal fact. The amalgamation was a creation of Letters Patent and Order in Council, and not a treaty. The new boundaries were defined by Colony of Nigeria Boundaries Order in Council of November 22, 1913, effective January 1, 1914. The only problem was Egbaland, recognised as a sovereign state by the Treaty with Carter.
Camouflaging under Egbaland’s internal unrest, the British convinced (cajoled) Egba to have her unique treaty annulled. Alake and his Chiefs consented and on September 16, 1914, Egbaland was finally placed “unreservedly under the Government of the Protectorate of Nigeria”. The Amalgamation was a product of administrative fiat same as the latter-day balkanisation of Nigeria into states by Generals Yakubu Gowon, Olusegun Obasanjo, Ibrahim Babangida and Sani Abacha.
There was no consultation with the natives and no agreement on amalgamation. The British felt on good legal standing as sole administrator based on “cession” and “protection” treaties to re-structure their new domain as they deemed fit. Allusion to any amalgamation treaty would have a corollary effect of adding indigenous consent to the act which would be a study in revisionist history.
The 1914 Nigerian was not considered legally capable of entering into a treaty with Britain, as they were considered conquered people and with their territory legitimately possessed. The amalgamation was therefore not a term of agreement, but mere administrative decision. Both at the international customary law, which governs the pre-1914 treaties and under the latter day Vienna Convention on the Law of Treaties 1969, the 100 year rule has no basis. There is no jus cogens fixing treaties to 100 years lifespan. A treaty’s lifespan is governed by rules of invalidation, termination and withdrawal. The pre-1914 treaties were made in perpetuity.
The resolution of the matter is that on October 1, 1960, the British Crown abdicated their possession to indigenous political authorities. Today, the Nigerian Government is corporately the legal successor to the abdicated British authority. Even with its much-vaunted shortcomings, the 1999 Constitution supersedes the amalgamation in succession of legal norm. Today, the 1999 Constitution is unarguably Law. Section 2(1) provides that “Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria”.
It is legally preposterous to profile Nigeria’s de-amalgamation on an imaginary treaty. The 1999 Constitution, although General Abdusalami Abubakar’s Decree No. 24 of 1999, and with its poor record of consultation, is Nigeria’s grundnorm, being grosso modo effective. I rely on Professor Hans Kelsen’s postulations on the Grundnorm in his Pure Theory of Law used for legal justification for extra-constitutional events or revolutions. This was applied in State v Dosso (1958) 2 PSCR 180 (Pakistan), Ex Parte Matovu (1966) EALR 514 (Uganda), Madzim Bamuto v Lardner-Burke (1969) 1 AC 645 (South Rhodesia – Zimbabwe), Lakanmi v AG West (1971) 1 UILR Vol. 1 201 (Nigeria) among other decisions.
The 1999 Constitution even with its poor record of consultation had attained effectiveness as Nigeria’s top Legal Norm. Nigeria did not, therefore, legally expire on January 1, thhis year. Nigeria has gone far beyond a de-amalgamation of her 1914 amalgamation. If Nigeria would be dissolved, it would be through a popular political process, not by expiration of an imaginary treaty. This is in view of Section 2(1) of the 1999 Constitution. Until then Nigeria remains. For those who wish Nigeria to expire by treaty, the disappointing news is: there is no ‘Best Before’ label on Nigeria.
• Emeka, Executive Director, Constitutional Rights Forum (CRF), writes from Lagos
