With a few days to the deadline to seek a review of the judgment by the International Court of Justice (ICJ) on the Bakassi Peninsula dispute, views are divided on how the government should handle the issue. With experts’ opinions, John Austin Unachukwu, Adebisi Onanuga, Eric Ikhilae, Joseph Jibueze and Precious Igbonwelundu suggest the way forward
It is just about a week to the shutting of all doors against any move by the country to seek a review of the October 10, 2002 judgment by the International Court of Justice (ICJ) in the dispute between Nigeria and Cameroun over the Bakassi Peninsula. And many seem unsure on the appropriate steps to be taken.
This confusion results from the fact that since the decision, no serious effort was made against the seeming determination of the country to let Cameroun have the area, inhabited by about 300,000 Nigerians, although many were opposed to the verdict.
Incidentally, the decision was not only given under a democratic government, with the Legislature in place to challenge any unpopular decision by the Executive. The Precedent Olusegun Obasanjo-government accepted the decision and proceeded to sign an agreement for its implementation, without any objection by the people’s representatives.
Although there were opposition from some quarters, particularly those affected by the verdict, key institutions were silent. It was also not in public domain that key individuals like then Presidential aide on Legislative Matters Senator Florence Ita-Giwa objected to the manner the Presidency went about the issue.
This is why, today, many are unsure what the actual motive of the major players on the Bakassi issue is. They are querying why the National Assembly waited till the wee hours of the day to pass resolutions urging the Executive, which is uninterested, to seek a review of the verdict handed out almost a decade ago.
With the Executive and Legislative arms of government maintaining opposing views on how to proceed, the public are wondering whether a Nigeria, under the watch of a President from the Southsouth, will yield Bakassi, a Southsouth community, to Cameroun without exploring all available means of preventing such occurrence.
The Bakassi crisis has been on for long. In 1981, the country almost went to war with Cameroun over Bakassi and another area around Lake Chad. There were armed clashes in the early 1990s. Apparently smarter than Nigeria, Cameroun went before the ICJ on March 29, 1994. And it took the court about 11 years to resolve the case in the plaintiff’s favour.
In arriving at its decision, the court reviewed diplomatic exchanges over 100 years. Nigeria relied largely on Anglo-German correspondence as old as 1885 as well as treaties between the colonial powers and the indigenous rulers in the area, particularly, the 1884 Treaty of Protection.
Cameroun, on its part, relied on the Anglo-German treaty of 1913, which defined spheres of control in the region, and two agreements signed in the 1970s between it and Nigeria – the Yaoundé II Declaration of April 4, 1971 and the Maroua Declaration of June 1, 1975.
Both declarations outline maritime boundaries between the two countries following their independence. The line was drawn through the Cross River estuary to the west of the peninsula, thereby implying Cameroonian ownership over Bakassi. However, Nigeria never ratified the agreement, while Cameroon regarded it as being in force.
The decision was greeted with condemnation by Nigerians, prompting the intervention by the then Secretary-General of the United Nations, Mr Kofi Annan, following which the two countries, with President Obasanjo for Nigeria and President Paul Biya for Cameroun, signed in New York, United States, an agreement – the Green Tree Agreement (GTA) on June 13, 2006 on ways to execute the judgment.
By the agreement, Nigeria elected to withdraw its troops within 60 days and to vacate the disputed area completely within two years. The government also planned to resettle the residents of the area, who preferred to remain Nigerians.
In keeping faith with the agreement, despite local opposition, the government began the withdrawal of troops on August 1, 2006 and rounded off that phase with a ceremony on August 14, marking the formal handover of the northern part of the peninsula. What was left of the area was to remain under Nigerian civil authority for two more years.
The Senate, relying on the provision of Section 12 (1) of the Constitution, responded to the withdrawal with a resolution passed on November 22, 2007 declaring that the withdrawal from the Bakassi Peninsula was illegal. But, despite the Senate’s position, the government proceeded with its programme and on August 14, 2008 completed the handover of the Peninsula to Cameroun.
Several years after, the noise now generated in the twilight of the Bakassi era has prompted many observers to ask: Why have the Nigerian authorities been complacent over this issue? Why was the Nigerian government eager to give away its territory and people without lifting a finger? Why did the Legislature fail to take steps other than mere resolutions?
They also ask: Why did the government remain reluctant to explore existing opportunities to reverse the loss of its territory? How come years after the GTA, one of its key components – the resettlement of the affected Nigerians – has not been effected, despite the huge fund allocated so far? Has the country lost out eventually?
Experts expressed varied views on what should be done, ruling out appeal. They argued that Article 60 of the United Nations Charter (under which the ICJ operates) prohibits appeal to any other court. They said the country could only seek a review of the decision on ground that it has unearthed fresh facts, within the last months, which it was oblivious of at trial.
They also suggested that the country approach the UN Security Council, relying on the provision of Article 94(2) of it’s Charter allowing the winning party recourse to the Security Council for intervention where the losing party failed to abide by the judgment.
Relying on the simple legal requirements of fairness and impartiality, which apply to all bodies vested with powers to decide the rights of parties who have submitted themselves to the decisions of the bodies, they argued that Nigeria can on this pedestal approach the Security Council, showing grounds why the judgment cannot be enforced.
These, they said, could include grounds of palpable bias, lack of jurisdiction, grand conspiracy against Nigeria, failure to take into consideration the peculiarity of Bakassi and the people living there, history and the cultural affiliations of Bakassi people, among others.
They also suggested that the country should insist that the UN gives effect to the people’s right to self determination by allowing them to decide, through a referendum, where they want to belong. Some have also suggested that the country deemphasize the legal solution and work at negotiating a buyout with Cameroun or applying force by going to war.
The Nigerian Bar Association (NBA), at the close of its 52nd Annual General Conference and Meeting in Abuja between August 26 and 31 this year, expressed displeasure over the maltreatment of Nigerians in Bakassi, despite the provision of the GTA. It urged the government to, “without further delay, apply under Article 61 of the ICJ statute of 1946, to the ICJ for a revision of what is an unjust judgment over Bakassi.
The lawyers included Felix Fagbohungbe, SAN; Yusuf Ali, SAN, Sebastine Hon, SAN, Joseph Nwobike, SAN, Former Attorney-General of Plateau State and Head, Department of International Law, Nigerian Institute of Advanced Legal Studies (NIALS), Professor Dakas C.J. Dakas, SAN, Mrs Nella Andem Rabana, SAN, Professor of International Law, Jurisprudence Akin Oyebode, and a lawyer Ahmed Adetola-Quasim.
Fagbohungbe said the suggestion that the judgment be revisited was in the interest of those affected if the situation could still be salvaged.
“I would implore the President to take wise counsel from the senators. Senators should, also, realise that they are the authentic representatives of Nigerians. So, they are the spokeperson for Nigerians; their resolutions should not be ignored particurlarly on this Bakasi issue.
Ali argued that the country was in error to have submitted to the jurisdiction of the ICJ. He said since the government appeared unwilling to apply for a review of the judgment, the least it could do was to ensure that the Bakassi indigenes were resettled properly.
“There are options under the law. Many countries of the world like the United States of America for instance, would not have submitted to the jurisdiction of ICJ on a matter like that when they are disputing on a land or any boundary.
“All countries of the world do it. US even goes further to insist that none of its citizens will be tried by the International Criminal Court; that any citizen of hers who commits an offence anywhere in the world should be brought back to the US to be tried.
“We should have done the same. If the ICJ had not made any pronouncement, the ceding of Bakassi would not have arisen.
“The least the government can do is to ensure that they are relocated and settled well elsewhere, otherwise if they do not feel the presence of government, it could lead them to the kind of agitations they are embarking on. Government must do more to address the unfortunate development that made them to become refugees in their own country,” he said.
To Oyebode, the resolution by the National Assembly at the eleventh hour seems an attempt to unscramble the egg. He said the country could only seek a review if it was sure of new facts.
“There is a tragic blunder in the way we went about the matter and I believe it is because it is close to midnight, that is why Nigeria is panicking. What it seems the National Assembly is trying to do is to force Goodluck Ebele Jonathan to swallow his vomit having earlier promised to abide by all agreements entered into by his predecessors.
“That notwithstanding, he is caught between a rock and a hard plain because he would not want to treat with indifference, the feelings of the National Assembly or have the reputation of the country at the international scene tarnished. Striking a balance between this dilemma is what I don’t know how he will achieve.
“It is a matter that has legal, geo-political as well as geo-strategic dimension. For me, law might not be a fitting way to resolve the issue. We have to explore other options such as diplomatic or in the worst case military.
“If you want me to talk very bluntly, we can negotiate with Cameroon on how to resolve the conundrum by way of making certain offers on the table, specifically, we can put a price tag on that peninsula, offer them money to buy the peninsula and it is without precedent. Exchange of territory is permitted.
“Otherwise, the worst case scenario is to use military force to change the facts on the ground. In other words, Nigeria could take a decision to overrun the territory and confront the military forces of Cameroon that are well entrenched in the peninsula right now,” he said.
Hon faulted the call for the country to apply for a review. He also faulted the argument that the non-ratification of the treaty ceding Bakassi to Cameroun by Nigeria makes it worthless.
“It has been strongly canvassed that the British Government had written to the Nigerian Government indicating that the disputed peninsula belongs to Nigeria. I see a booby trap in this. If the document existed before the matter went to the ICJ, why was it not produced or tendered? If it existed after the judgment, why did it come out that late, when the whole world, including the UK, knew of the pendency of the matter at the ICJ? And, above all, no matter the source and timing of the document, can it be seriously argued that it supercedes the treaty voluntarily entered into by the parties?
“I will rather strongly suggest that the Federal Government, as a matter of utmost urgency, should acquire the large swathe of virgin savannah between Odukpani Junction near Calabar and Ikom and resettle the Bakassi indigenes. I have also been informed that the Federal Government has voted and indeed released billions of naira for this resettlement project. Where then is the money? Over to you, EFCC,”Hon said.
To Nwobike, since the judgment was not by the parties’ consent and the Nigerian government having not undertaken not to challenge it, the right to seek its review exists and should be exercised.
“The possibility of success on appeal exists. The views expressed by some legal experts against the pursuit of the appeal should not discourage the government from pursuing the appeal in view of the extent of public support for it; particularly, the recent resolutions of the National Assembly and political implications of the judgment on the psyche of the Bakassi people,” he said.
Dakas disagreed with the call for the revision of the judgment, arguing that “it is ill-informed, distracts attention from the core issues and risks aggravating the plight of the Bakassi people.”
He suggested that the energy and enormous resources to be wasted on such exercise should be directed at improving the lot of those affected by the decision; that the country should ensure that Cameroun lives up to its responsibilities under the terms of the GTA, particularly as they affect the rights of Nigerians and that the country should press for a UN-supervised plebiscite with a view to determining the wishes of the Bakassi people.
Mrs Rabana said: “I have taken the position that the Federal government should seek a revision of the ICJ judgment because of the continuing dehumanizing atrocities being inflicted on the Bakassi indigenes refusing to change their citizenship and of course because of the fresh facts discovered within the last six months which the ICJ should be given an opportunity to accept or reject.
“Nigeria should borrow a leaf from China, USA or Britain in the way it defends its sovereign integrity and /or the rights of its citizens. The handling by China of the Diaoyu Islands is a live issue which we would all do well to study.
“Nigeria by applying for a revision shall in some measure restore confidence in its citizenry while still complying with the provisions of the ICJ statute. Nigeria’s posture before and after the judgment has been that of compliance and image building .Maybe it is time to focus on its citizens for a change,” she said.
Adetola-Quasim, who is the Director, Prisoners’ Rights Advocacy Initiatives (PRAI), said: “The ultimate decision lies with the president. I think it is only ideal that the president yield to the demand of the National Assembly as it is the reflection of the will of the people. Ideally the will of the people should supersede anyone’s will including that of the president.
“Therefore, the request of the National Assembly is not out of place. Whether Nigeria will succeed or not is a different ball game. The judgment, in my opinion, has some political undertone considering the composition of the panel, coupled with the fact that we didn’t do our homework well.
“What Obasanjo did was an illegal act as same is not valid under any law of the land. So, the Greentree agreement is inchoate. It has no status of a binding law. No nation dashes out territory on a platter of gold. Whilst I’m not encouraging disobedience of international laws, the issue of Bakassi should not be treated with kid gloves.”
