As the October 10 deadline for the review of the judgement of the International Court of Justice ceding the Bakassi Peninsula to the Republic of Cameroon draws nearer, the preponderance of opinion among Nigerians is that the federal government should seek a review of the case. Davidson Iriekpen writes
In the last few weeks, a cross section of Nigerians has mounted pressure on the federal government to revisit the International Court of Justice judgement ceding the Bakassi Peninsula to the Republic of Cameroon.
The judgement, which was delivered on October 10, 2002, stipulated that by the terms of the June 12, 2006 Green Tree Agreement (GTA), Nigeria should by October 2012, complete the handover of Bakassi to Cameroon.
Apparently, in anticipation of the final phase of the handover, a group, Bakassi Self-Determination Front (BSDF), had recently declared independence of Bakassi and hoisted its blue, white and red flag with 11 stars on the blue colour as well as set up a radio station, Dayspring Radio, which began transmission on 4.2MHz and 5.2MHz band since August 6.
But the federal government continues to face pressure, in what some have described as “act now or forever remain silent” situation.
On Wednesday, Senate President David Mark voiced the collective resolve of the upper chamber to reject the ICJ judgement and seek a review. The Senate resolved to formally write President Goodluck Jonathan to appeal the judgement.
Speaking on a motion sponsored by Senator Abdul Ningi, representing Bauchi Central, Mark said: “I think appeal is a line of action that should not be neglected because that is legal, since Nigeria subjected itself to the court.
“If that is what is available through the court, we should also utilise it. I think that is the most appropriate thing to do at this point in time.”
The Senate president said: “We urge the federal government to go on appeal. We on our part will revisit the letters and see what we can do, may be quickly again come up with a debate on the letters and then resend it to buttress our points and resolution that was arrived at today.”
Ningi added, “The lack of faithful implementation of the Green Tree Agreement signed by both countries thereby violates the basis of the implementation of the court judgement.”
Many analysts have been putting forward arguments and reasons why the federal government should review the judgement. Chief among the reasons are the security and economic implications of the judgement.
Some analysts have based their rejection of the ICJ ruling on alleged shoddy preparation of the case by Nigeria and the fact that the country was not represented during the trial by international law treaty experts. They also posit that those who represented the country did not put forward enough evidence which a lot of Nigerians are aware of. They term it as unpatriotic and incompetent on the part of the government to lose its the territory to Cameroon.
One area where a lot of analysts felt the federal government and ICJ failed the people of Bakassi was the failure to conduct a plebiscite to enable the people of the peninsula to determine their future. They therefore feel that rather than resort to the ICJ, the United Nations should promptly organise a plebiscite in the area, to enable the people decide whether to stay in Nigeria or go to Cameroon or assume a separate sovereign identity.
Leading the pack of eminent Nigerians pushing the new arguments is the former Minister of Information, ProfessorWalter Ofonagoro, who said he has in his possession 1822 documents which vested ownership of the Bakassi Peninsula to the Old Calabar Chiefs, by extension to Nigeria. He debunked claims that the 1913 Anglo-German treaty was the first recognised treaty on the land and maritime boundary between Nigeria and Cameroon.
According to Ofonagoro, a historian who did his Ph.D thesis on Southern Oil Protectorate, Nigeria has very strong grounds to ask the ICJ for a review of its decision because there were concrete material facts and documentary evidence that were not before the ICJ in 2002, which would have helped to guide the world jurists in their decision.
Ofonagoro said Cameroonians concealed other vital treaties during the trial and told the court that the treaties were for mere administrative convenience, stressing that more surprising is the fact that the Nigerian team did not do their home work to debunk the claims of Cameroon. Rather, Ofonagoro said, they went there to resurrect a dead treaty in their attempt to justify the 1975 Maroua Declaration which was also an illegal treaty.
He argued that if the ICJ should allow a judgement that was obtained by fraud and concealment of fact to stand, grave injustice would have been done to the people of Bakassi.
To Ofonagoro, the Nigerian defence team went to The Hague to agree with the Cameroonians that before 1913 there were no other treaties between the two colonial powers, which is false.
The academic said, “But more fallacious is the fact that the Cameroon of 1919 was not the Cameroon of 1913, because after the end of the First World War, Germany was forced to give up all its territories in Africa, which came under the mandate of League of Nations.
“Fresh facts have emerged to show that the Cameroonian legal team deceived the ICJ into believing that before the Anglo-German treaty of 1913 upon which it rested its case, there were no other treaties that delineated the land and maritime boundary between Nigeria and Cameroon, which is a fraudulent claim.
“This is not true because as far back as 1811, the British had already established a strong sphere of influence over the territories that eventually became Nigeria in 1914. The Anglo- German treaty upon which Cameroon built its case was contestable because after the First World War ended in 1919, all the territories controlled by Germany were taken away from them and given to the League of Nations.
“There were other treaties between Nigeria and Cameroon on the Land and Maritime boundaries, which were entered into in 1884, 1885 and 1886, all of which clearly demarcated the land and maritime border between Nigeria and Cameroon from the Lake Chad region down to the Akwa Yafe River, which was the land border from Akwa Yafe to Rio Del Rey estuary to the Atlantic ocean.
“When the Germans got to Akwa Yafe River, they discovered that they could not gain a direct access to the sea because going toward West of Akwa Yafe River will take them straight to the Calabar Sea Port. The Calabar Sea Port was clearly outlined in the treaty. This was the main port of entry for the British merchants, and later missionaries, who were the first to establish sphere of influence in Nigeria.”
‘Now or Never’
The Nigerian Bar Association, at its 52nd annual conference that ended in Abuja recently, also called on the federal government to seek a review of the ICJ judgement.
In a communiqué signed by its immediate past president, Joseph Daudu (SAN), the NBA said the country must make use of the window that gives it up to October 9 to ask for a review of the judgement. The body said it was aware that there were grounds upon which the government could legitimately apply for a revision of the ICJ judgement.
“If nothing is done by October, then nothing can ever be done concerning the issue. There is nothing wrong in asking for a review of the judgement as far as there are new facts to prove that the facts upon which the judgement was delivered were not complete or were wrong and there is a provision for that in the ICJ Act,” Daudu said.
At a lecture recently to mark the 79th birthday of elder statesman, Dr. Tunji Braithwaite, organised by “Women Arise” in Lagos, Nobel laureate, Professor Wole Soyinka, advised the federal government to revisit the ICJ ruling.
Soyinka noted that the deficit of views and wishes of the Bakassi indigenes before the decision by the Obasanjo administration to cede the area raised questions about the rights of the minorities.
He asked, “Were the representatives of the indigent members of the community invited to The Hague before the government accepted the ruling? The answer is no. The wishes of the people of Bakassi were never considered and that puts to the fore the issue about the rights of the minorities.”
Penultimate week, the Cross River Elders Forum rose from a meeting in Calabar with a request that the federal government should revisit the judgement. The group in a communiqué signed by Col. Pam Ogar (rtd), Senator Joseph Oqua Ansa, Dr. Ambrose Akpanika, Ukandi Gabriel Ogar, Ntufam Mathew Ojong, Mrs. Grace Ekanem, and Professor Roland Ndoma-Egba, said it had become imperative to revisit that judgement on account of new evidences that have surfaced.
As a first step in that regard, the group wants the appropriate federal government agency to “immediately ask for extension of the 10-year period for the completion of the handing over process of Bakassi beyond October 2012.”
Emeritus Professor of Law Adedokun Adeyemi has also called on the federal government to diligently pursue the review of the ICJ judgement. Adeyemi, a former Dean, Faculty of Law, University of Lagos, said Nigeria’s permanent submission to the ICJ’s jurisdiction had negative consequences on the country.
The professor of public law deplored the arbitrary signing of treaties and conventions without knowing the implications on the country and the people.
According to Adeyemi, “We had in the 60s ‘foolishly’ submitted to the jurisdiction of the court and it was obligatory that we appear before it in the Cameroon suit on Bakassi Peninsula. The concept of sovereignty provides that one cannot just bring a case against a state except the country consents to the jurisdiction of the court. Some industrialised states like the U.S. and UK have not submitted permanently to the jurisdiction of the court and are circumspect in the conventions and treaties they sign.
“Nigeria should study the implication of any treaty or convention before we ratify it. If you sign a treaty and you do not ratify it, you are not under any obligation to submit to it.
“After 50 years of independence, Nigeria should be regarded as a mature country and this should be demonstrated in international circles and reflect in how we fashion our foreign policies. The security and interest of the people should be the primary focus of government as enshrined in Section 14 of the 1999 constitution.”
The House of Representatives is not left out in the quest for review. The House has called on the federal government to commence the process for the review of the ICJ judgement
In a motion on the floor of the House of Representatives, which was unanimously adopted without debate, Essien Ayi (PDP-Cross River), said that Article 61 of the Statute of ICJ provided for application for the revision of a judgement only when some facts that are decisive factors, were unknown to the court and the party seeking revision.
He cited instances of countries like El Savador, Yugoslavia and Tunisia, which applied for review of judgements by the ICJ, saying the people of Bakassi insist on having a United Nations supervised plebiscite, where their rights to self-determination would be exercised.
All Eyes on the Federal Government
It is not yet clear whether the federal government would succumb to pressure in the coming days and apply for a review of the ICJ judgement. The Attorney-General of the Federation and Minister of Justice, Mr. Mohammed Adoke (SAN), had declared that the federal government did not intend to reopen the matter.
Adoke noted that despite the high emotions the issue had generated, there were no fresh facts for the government to base an application for a review of the judgement.
“Go and check Article 60 and 61 of the ICJ rules, there is no room for appeal. What Nigeria can do, if at all we want to act, is to call for a review of the case.
“But from what most people are putting forward as reasons for us to go back to the ICJ, they are not tenable. We would only go there to embarrass ourselves,” the minister said.
Article 60 of the ICJ Statute reads: “The judgement is final and without appeal. In the event of dispute as to the meaning or scope of the judgement, the Court shall construe it upon the request of any party.”
Article 61 sub sections 1, 4 and 5, which states the conditions under which a review could be sought, reads: “An application for revision of a judgement 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 judgement 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 judgement.”
Adoke is not alone in this line of thought. Penultimate week, a former Attorney-General of the Federation and Minister of Justice, Prince Bola Ajibola (SAN), declared that the ceding of Bakassi Peninsula to Cameroon by Nigeria was a foregone conclusion. The eminent jurist said the federal government, then under former President, Chief Olusegun Obasanjo, followed due process in the transfer of the oil-rich region to neighbouring Cameroon.
Ajibola, who was a judge of the ICJ when the judgement on Bakassi was given on October 10, 2002 in The Hague, Netherlands, advised that that activities that could breach the international agreement and peaceful co-existence of the two countries should be discouraged.
He said, “I am yet to understand what is really going on now. The due process has been taken by the government on this issue and it has concluded it with the Green Tree Agreement and that has already been taken up and concluded. Everything about the Bakassi is a foregone conclusion.
“Bakassi is not just the issue; it’s only part of the issue of the Cameroon-Nigeria dispute. The maritime dispute is there, the land dispute is there and they weigh heavily on the matter. Bakassi is just a small place, a strip of a channel but the real issues are the land and the maritime.”
Other experts in international law have also asked the federal government to ignore the calls for review of the ICJ judgement. Chairman of the National Human Rights Commission, Dr Chidi Odinkalu, and Mr Sebastian Hon, SAN, both described the call as belated.
Odinkalu said: “I think when Nigeria looks more closely at the applicable laws they may realise that such a resolution is entirely without basis in international law and could degrade the quality of our international standing.”
For Hon, the call did not only come too late, it is also capable of causing Nigeria moral dents in the international community.
“The ICJ judgement has made both parties to the dispute to change their positions. Nigeria has also officially complied with the judgement. Any attempt to challenge or torpedo the status quo will wrought serious moral dents on our international image.
“Mind you that the judges that will sit on such appeal are also human beings and are also an important segment of the enlightened international community.”
According to him, the resolution is belated chiefly because equity aids the vigilant. Hon said that the Bakassi debacle was not well handled and that Nigeria must learn to live with it.
“Even if the government of Nigeria is within time to appeal, delay in pursuing our appellate rights will definitely work against us,” he added.
However, Odinkalu said that he had visited the peninsula many times recently and that the people living there were in dire need of help. He said: “I’m also not unmindful of the fact that we have not as a country served the best interests of the peoples of Bakassi in the implementation arrangements.
There is an incipient statelessness problem that was entirely foreseeable and should have been prevented. Livelihood is also dire among the communities. I hope that the political authorities will see wisdom in involving the National Human Rights Commission in a meaningful search for solutions.”