Respite seems to be on the way for the beleaguered Bakassi people as the Federal Government last week considered seeking a review of the October 2002 judgment of the International Court of Justice (ICJ) that ceded the oil-rich Bakassi Peninsula to Cameroun. Olawale Olaleye, Ademola Adeyemo, Omololu Ogunmade, Anayo Okolie and Ayodele Opiah wonder how far the government’s efforts could go in helping reclaiming a lost territory
Until last Thursday, the hope of Nigeria reclaiming the oil-rich Bakassi Peninsula was literally lost; so it seems. The Federal Government had previously dithered in making any commitment to whether it was disposed to reclaiming the peninsula that it ceded to Cameroun in 2008 following the October 2002 judgment of the International Court of Justice (ICJ).
However, last week, President Goodluck Jonathan bowed to pressure from major stakeholders, including the National Assembly and the displaced people of the peninsula, when after a five-hour meeting at the State House, he set up a committee to review the judgment, perhaps preparatory to asking the ICJ to reconsider its verdict ahead of the deadline that expires on Wednesday.
Jonathan was said to have changed the position of his administration on the matter having discovered new evidence that was not made available to the ICJ during the litigation between the two countries on the ownership of Bakassi peninsula.
Although, members of the committee were not named as at press time, THISDAY gathered that the membership comprises four members each from the executive and legislative arms of government. The committee, which had till last Friday to submit its report, had considered the new evidence and made recommendations on how Nigeria could go about recovering the oil-rich peninsula.
Those at the meeting, according to reports, included the leaderships of the two chambers of the National Assembly, Cross River State Governor, Senator Liyel Imoke, and the Attorney-General of the Federation (AGF) and Minister of Justice, Mr. Mohammed Adoke (SAN).
Others were the Director General of the National Boundary Commission, Dr. Muhammad Ahmad; Chairman of Revenue Mobilisation Allocation and Fiscal Commission (RMAFC), Mr. Elias Mbam; all members of the National Assembly from Cross River State; some leaders and representatives of selected groups from the disputed area; and presidential aides.
They were, however, briefed on the new evidence that could assist Nigeria pursue its appeal in line with Article 61 of the ICJ Statute.
Article 61, sub-sections 1, 4 and 5, which stipulate the conditions under which a review could be sought, reads: “An application for revision of a judgment may be made only when it is based upon the discovery of some facts of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.
“The application for revision must be made at latest within six months of the discovery of the new fact. No application for revision may be made after the lapse of ten years from the date of the judgment.”
History of Bakassi
During the European scramble for Africa, Queen Victoria of England, signed a Treaty of Protection with the King and Chiefs of Akwa Akpa, known to Europeans as "Old Calabar", on September 10, 1884. This enabled the United Kingdom to exercise control over the entire territory around Calabar, including Bakassi.
The territory subsequently became de facto part of the Republic of Nigeria. Although, the border was never permanently delineated, documents released by the Camerounians, along with that of the British and Germans, clearly place Bakassi under Camerounian Territory as a consequence of the Anglo-German agreements. But after Southern Cameroun voted in 1961 to leave Nigeria and became a part of Cameroun, Bakassi remained under Calabar’s administration in Nigeria until the ICJ judgment of 2002 which ceded the territory to Cameroun.
The Bakassi Peninsula occupied formally by the Bakassi people consists mostly of Efik-speaking people with an area of about 1,000 km of mangrove swamp and half submerged Island, protruding to what was formally known as Bight of Biafra but now known as Bight of Bonny. According to A. K. Hart in an official document released in 1964 titled “Report of the Enquiry into the dispute over the Obongship of Calabar”, the Efik originally lived at Uruan in Ibibioland, while Forde and Jones in 1869 said they fished the Cross River estuary. This points to the fact that the Efik, after living in Uruan, migrated and occupied old Calabar (then occupied by only the Qua and Efut) of which Bakassi was a part of.
The peninsula is also described as "oil-rich" even though in fact, no commercially viable deposit of oil was hitherto discovered. However, the area had since aroused considerable interest from oil companies following the discovery of rich reserves of high grade crude oil. At least eight multinational oil companies have participated in the exploration of the peninsula and its offshore waters.
Thus, Nigeria and Cameroun had disputed the ownership of Bakassi for many years, leading to tension and even the possibility of a war between the two countries. The dispute over Bakassi started in 1993 when Cameroun was aware of the oil deposit. In 1981, the two countries went to the brink of war over Bakassi and another area around Lake Chad at the other end of the two countries' common border. More armed clashes broke out in the early 1990s. In response, Cameroun took the matter to the International Court of Justice on March 29, 1994, seeking an injunction restraining Nigeria from claiming sovereignty over the peninsula.
The Legal Rigmarole
At the International Court of Justice (ICJ), Cameroun had asked the ICJ to determine issues "relating essentially to the question of sovereignty over the Bakassi Peninsula." Cameroun claimed Bakassi was under military possession by Nigeria and therefore asked the international court to settle the maritime boundary between it and Nigeria.
However, on October 10, 2002, citing a 1913 agreement between Germany and the United Kingdom as well as the Thomson-Marchland Declaration of 1929 to 1930, the ICJ awarded sovereignty rights of Bakassi Peninsula to Cameroun. Before the judgment, the then Secretary-General of United Nations (UN), Mr. Kofi Annan, had met with Nigeria’s former President, Chief Olusegun Obasanjo and his Camerounian counterpart, Paul Biya, to discuss the possible ways of resolving the peninsula crisis.
At the meeting, both presidents agreed to abide by the decision of the ICJ and simultaneously set up implementation mechanism with the support of the UN. A second meeting between Annan and the two presidents was held in Geneva on November 15, 2002, during which they both agreed to resolve their differences and consider all implications and ways of observing the ICJ ruling.
The agreement later resorted in the signing of the Green Tree Agreement under which the judgment was implemented. Annan also hosted another meeting with the duo on January 31, 2004, under the framework of the Cameroun-Nigeria Mixed Commission, to examine the progress made by the two countries as regards the implementation of the ruling of the ICJ.
The ICJ judgment had asked Nigeria "to expeditiously and without condition withdraw its administration and military or police forces from the area of Lake Chad falling within Camerounian sovereignty and from the Bakassi Peninsula." It also asked Cameroun "to expeditiously and without condition withdraw any administration or military or police forces which may be present along the land boundary from Lake Chad to the Bakassi Peninsula on territories which pursuant to the judgment fall within the sovereignty of Nigeria."
Some judges of the 17-member court, which included Nigeria's Justice Bola Ajibola and one Abdul G. Koroma, gave dissenting opinions to the judgment while four others agreed with the lead judgment in separate opinions. Specifically, Ajibola disagreed with the court's judgment on Lake Chad and Bakassi Peninsula, two of the five areas of disputes that the court was asked to resolve.
On the Lake Chad ruling, Ajibola said: "I voted against the decision of the court as stated in paragraph 325 1(A) and (B) of the judgment because they fail to take into consideration the submissions of Nigeria based on effectivities and historical consideration." He added that "the court in reaching its decision on Lake Chad relied heavily or perhaps, solely on certain instruments that formed the bedrock of Cameroun's case.
"Without any fear of equivocation, the decision of the court, in my view, is rather a political decision than a legal one."
But acting on the judgment, Nigeria handed over the area located in the Gulf of Guinea to Cameroun in 2008 following the understanding between Obasanjo and Biya to abide by the court's decision at a meeting in September 2002 in Paris. The court based its decision on a 1917 document between colonial powers of Britain and Germany.
A Fresh Bid for Bakassi
After 10 years of the ICJ ruling, pressure came on the Nigerian government by Nigerians living in Bakassi who claimed their lives had remained miserable since the place was ceded to Cameroun. They had resorted to different protests to register their displeasure to government’s perceived indifference to their plight. They also used their representatives in the National Assembly to push their case for Nigeria to seek a review of the judgment. The National Assembly immediately picked up the gauntlet and began the campaign for Nigeria to reclaim Bakassi by seeking a review of the ICJ ruling.
Spearheading the initiative was the House of Representatives whose committee on Treaties and Agreement was convinced something was not right with the ICJ ruling, especially that the plight of Nigerians in that area had not been properly situated within the context of the judgment. Chairman of the committee, Yacoob Dayo Bushira-Alebiosu, therefore set out to rationalise the need to review the judgment and subsequently, protect the rights of Nigerians in the area.
The committee, which met with Bakassi stakeholders at the Cross River State Council of Chiefs chambers, Calabar in August, said nobody would feel the pains of displacement than the affected. Bushira-Alebiosu who was accompanied by the member representing Bakassi/Calabar South/Akpabuyo Federal Constituency, Hon. Esien Ayi, however, assured the people that there were some provisions in the agreement that had provided the opportunity for a review of the judgment.
Consequently, the House last month asked the Federal Government to file for a review of the ICJ judgment. The House, which had earlier referred the Bakassi matter to its Joint Committee on Foreign Affairs/Justice for investigation, said Nigeria had grounds to seek a review of the judgment.
Ms Nnena Ukeje who briefed newsmen on the findings of the House said the views of several stakeholders were sought before the committee arrived at its recommendation. “There are new grounds to enter a review for the judgment. One of the issues that has come to the fore is the fact that the 1913 Treaty, which the court based its decision on, has been faulted.”
Earlier in the month and before the House’s resolution, the Senate had rejected the ceding of the Bakassi Peninsula to Cameroun and directed Jonathan to urgently seek a review of the judgment. Senate President, David Mark, assured the people of Bakassi that the Senate would go ahead with all legislative processes to ensure that the judgment is over-turned in favour of Nigeria.
“There is a host of other things, letters written to National Assembly are actually here and we on our part have not done anything. We have neither rejected it nor said anything. They just came and went like that.
“We will revisit the letters and whilst we are urging the Federal Government to go on an appeal, we on our part will revisit the letters and see what we can do from our own side; maybe to quickly again come up with a debate and then reject it and forward it to buttress our points and to buttress our resolutions arrived at today,” he added.
Deputy Senate Leader, Abdul Ningi, who led the debate, had urged Nigeria to appeal the judgment.
How Feasible is this Venture?
By government setting up a committee to review the ICJ judgment, it has evidently bought into the need for appeal. Presidency sources had told THISDAY that government was mindful of the short time it had to lodge the appeal at the ICJ, hence the committee was handed a short time to submit its report. And as priority, the Federal Government is said to be eager to submit a review before the five-day deadline and explore diplomatic channels on the issue.
First, there is the belief that since the National Assembly, a critical arm of government had not taken a position on the ICJ judgment, the ruling on Bakassi cannot be binding. That the National Assembly had even declined to ratify the Green Tree Agreement in line with Section 12 of the constitution is said to be an indication that the legislature was not convinced that Bakassi should go.
Some of the insights believed to have aided the fresh bid to reclaim Bakassi were said to have included the information provided by Justice Benjamin Njemanze on the maps and documents during the colonial era, which might have not been presented during the original case. That aside, there are agitations on what would happen to that part of Nigeria that Cameroun also conceded in the wake of the agreement that ceded Bakassi to Cameroun.
But Justice Ajibola told State House reporters that the Federal Government had shown a genuine concern for the Bakassi people. He also commended the moves to follow the rule of law, dialogue and diplomacy in ensuring that the people are not wrongly deprived of their homeland.
Imoke also said the president has shown great leadership qualities by convening the meeting and standing firm on some of the decisions taken.
Mark said the executive arm of government and the lawmakers were now on the same page on the Bakassi issue and would work together to achieve results.
However, THISDAY gathered that there are officials in the executive who do not believe that the Federal Government has a good case to make the court return Bakassi to Nigeria. These people believed it was better for Nigeria to continue to abide by the judgment of the ICJ rather than bow to pressure to seek a review that might not succeed.
A source hinted that the Federal Government had sought and obtained legal opinions from experts and that the consensus was that an application for a review would not succeed.
“Nigeria is a respected member of the comity of nations and as such should abide by the judgment of ICJ. Except people want government to seek a review just for review sake, there is no fresh facts to go with," he added.
Former governor of Anambra State, Dr. Chinwoke Mbadinuju, said the ceding of Bakassi Peninsula to Cameroun was essentially a political act and solution of the present problem which it now engendered must of necessity be political. “Of course military solution is also possible but leaders prefer to exhaust political option and allow that of military as the last resort.”
Mbadinuju, a lawyer, noted that subject to all the issues of law, history, national and international interests involved in this problem and dating back several years until today, the paramount interest of Nigeria is to return Bakassi to where it was before the Nigerian civil war. He recalled views on how past leaders had mortgaged Bakassi to Cameroun as a payback for assisting Nigeria defeat Biafra.
“True or false, we have passed that stage now, it has become history. The question generally asked now is, given the fact that all Nigerians are united in the quest to return the peninsula to where it was in Nigeria, who then will bell the cat, and how, without further loss of lives? This is where President Jonathan's intervention in the matter is a masterpiece. It was almost becoming time-bound in a matter of days but for the president, it is better late than never.”
Mbadinuju stated that Nigeria's interest is not just the oil in Bakassi but our citizens whose lives and property must be saved under our constitution. The issue now is law, not only our domestic law but international law too. International lawyers know that the ruling of ICJ cannot be reversed, but it can consider new facts and evidence that were not available at the initial stage.
“The only problem we may have may be the international jurists. The judges are human beings and are nationals of countries that may have vested interests in the outcome of the case. If some of the international judges have made up their minds one way or the other, it may be tough for us if we don't have enough friendly nations and friendly judges. The international court is not a church or mosque, nor are the judges imams or pastors to expect them to give judgment as contained in the Koran or according to the Bible,” Mbadinuju said.
House Committee Chairman on Media and Public Affairs, Hon. Zakari Mohammed, noted that Nigeria should appeal the judgment before the time lapses. According to him, “what is very key and basic in the matter is that people have been ceded to a place where they don’t belong and they are being ill-treated with the sentence or statement which just wished away the destinies of people into the land they don’t belong to.”
But another House member, Hon. Chiwendu Charles Odedo, said the judgment is the judgment of the World Court and Nigeria entered into it voluntarily. “We signed up to it before the process and the final judgment. If we are not happy with the judgment, we have an avenue for appeal and timing of the appeal will soon elapse probably before the end of this month.
“If we don’t like the judgment, we can explore that option for the court to review the judgment and of course in doing so, we also need to do like a plebiscite. Use the result of the plebiscite to show that the people of Bakassi really want to be in Nigeria. That is documentary evidence with an appeal for a review.
The President, National Association of Seadogs, Mr. Ime Owodiong-Idemeko, said the ICJ judgment came to Nigerians as a rude of shock and in the spur of the moment, occasioned by anger by Nigerians, the government immediately rejected the verdict. He said, four years later, it made a remarkable volte-face by signing an agreement on June 12, 2006 in New York, dubbed the Green Tree Agreement (GTA), to formally hand over the disputed Bakassi Peninsula to Cameroun in line with the ICJ ruling.
He, however, said it was sad that Adoke has already accepted defeat and that even worrisome is the embarrassment the nation may face in reviewing the judgment rather than the plight of the indigenous people of Bakassi who have become refugees in their own country. “We note with dismay, the neglect, abandonment and inexplicable maltreatment of the indigenous people of Bakassi after ceding their land to Cameroun.”
On his part, Mr. Femi Falana (SAN) said government has taken the right step to revisit the judgment on the Bakassi issue. “It’s a welcome development for Nigeria. The committee has found a new evident on the previous judgment of the handing over Bakassi to Cameroun. The implication is essential; the government has to consider the interest of the people of Bakassi. The people of Bakassi will be put into consideration and government has to consider the decision made on the people of Bakassi.”
Mr. Bamidele Aturu, a right activist and lawyer, said government’s decision to appeal the ICJ judgment is bound to generate a fresh controversy. He said this is because such a claim would be false, given the earlier and cavalier rejection of demands for a review by the AGF on behalf of the government. “It seems more a symptom of policy inconsistency or lack of focus coupled with an anxiety not to displease the lawmakers at the National Assembly.
“While I welcome the review on the basis of fresh facts, I do not trust this government to pursue it with required vigour. Let no one play games with us. A perfunctory application to fulfil all righteousness will be unacceptable to Nigerians. In other words, we will watch the ICJ proceedings this time around keenly. Civil society in general and Bakassi people in particular should set up a working group to put the government team on its toes.”