Bakassi Anniversary Essay: Of Blunders, Lies and Opportunism

Agwu Ukiwe Okali

Tomorrow, the 14th of August, is not a date that rings a bell to most Nigerians as being significant to our country’s nationhood history – not like October 1st or June 12th, etc. One is not even sure if, and how, it is taught in schools. It should ring a bell, though, but, alas, a sad one! It was the day in 2008 that we lost a sizeable chunk of our national territory, The Bakassi Peninsula, to Cameroon following a World Court adjudication. This, mark you, is an area with vast proven mineral (oil, in particular) and fisheries reserves, inhabited by a clearly Nigerian ethnic group that has now been split up and displaced, with many “de-nationalized” from being Nigerian citizens to not being Nigerian citizens anymore!

Examination of two issues here will throw light on both the performance and the motivation of the people who handled this matter for Nigeria: first, how and why Nigeria lost the case, and, secondly, the post-judgement attitude of our Government.   

Now, the Statute of the ICJ, recognizing the doctrine of sovereign equality among States, makes submission to its jurisdiction by States voluntary (Article 36, para.2), meaning that a dispute between two States can only be taken up by the Court if both States agree. At the same time, the Statute allows States to declare beforehand their acceptance of the Court’s jurisdiction in disputes in which they are involved. This is done by lodging such declaration with the Secretary-General of the United Nations, who, in turn, circulates this information to other States. Such a declaration creates reciprocity between a declaring State and other declaring States such that any dispute between them can be taken directly to the Court, as jurisdiction already exits. Usually, States that choose to make this declaration will enter some reservations excluding matters of vital interest such as a territorial dispute.

A few States, however, (3 at the commencement of the Bakassi hearing) made their declarations without any reservations, and, incredibly enough, Nigeria was one of them, lodging its declaration in 1965. As an American would ask, “What was the Tafawa Balewa government thinking?!” Perhaps, it was “conned” or coerced into it by the British, who knows?! On the other hand, as we all know, there really are some things that happen in and to Nigeria that defy understanding, let alone explanation!  

Whatever be the case, Cameroon, realizing that Nigeria had made such a declaration accepting the Court’s jurisdiction, and without reservation, saw a critical loophole that it could exploit. It accordingly entered a declaration under Article 36(2) on 3 March, 1994, thereby gaining, as explained earlier, jurisdictional locus in relation to Nigeria; and about 3 weeks later, on 29 March, 1994, filed its suit against Nigeria over Bakassi. Nigeria thereafter made an attempt to enter a reservation to its declaration that would have excluded Bakassi-type matters, but, as the Court rightly held, this was too late to affect the Cameroon suit already instituted. Nigeria having been outmanoeuvred by Cameroon on this critical issue, the way was now open for the Court to look into the substance of both parties’ claim to ownership of the Peninsula.

Sadly for us, Cameroon’s World Court gambit paid off handsomely, coming out of the proceedings considerably stronger and richer than before – and at the expense of Nigeria. While, of course, the Court’s judgement was based on an examination of various facts and historical documents, including especially an Anglo-German treaty of 1913, the real victory lay in Cameroon’s being able to bring the suit at all and compel Nigeria to submit to the Court’s compulsory jurisdiction, thereby depriving it of its principal legal protection and tactic advantage even before the trial itself started. 

The serious setback suffered by Nigeria in the Bakassi case was essentially, therefore, self-inflicted: a blunder that began under Tafawa Balewa’s Administration and compounded over the years under successive Governments and officials: Attorney-General’s and Ministry of External Affairs Offices, in particular. The problem could be described (kindly) as culpable negligence and ignorance of one’s own legal situation owing to Nigerians’ chronic inattentiveness to details: how else to explain overlooking the vulnerability resulting from an ICJ declaration without reservations over all these years? 

The Obasanjo Administration, on whose watch things came to a head, together with the bevy of expensive legal advisers retained by it, certainly could and should have done better, with all due respect. As soon as a battle starts brewing, the first thing anyone would think of surely is his defences. Does he have any vulnerabilities that can be exploited by the enemy?  They presumably either did not search thoroughly or did not pick up anything of concern. So, it turned out in reality, that Cameroon knew our legal situation better than we did ourselves! Just think about that!  Most galling and perplexing, though, is that they actually alleged in court that they had been in regular discussions with the Nigerian authorities, who knew everything they were doing even up to the time of their filing of the suit.  Wow, so how come Nigeria waited until Cameroon had filed its case and only then tried, figuratively speaking, to close the barn doors after the horses had bolted?  To quote the Americans again, “Who does that?!” 

Something certainly does not add up here and someone should explain this!

So, we have gotten our explanation of the “blunders” part of the title of this Essay; what about the “lies” part? The “lies” here lie in the way in which this matter has been handled and the narrative put out by our leaders over it as a simple case of going to court with Cameroon on the matter and, unfortunately, losing the case. While this may be a narrative that suits President Obasanjo (then in charge) and his supporters, the reality is that our leaders have failed, then and still today, to tell Nigerians the real truth, meaning the whole truth on how and why the nation suffered this sad and sorry Bakassi debacle – and to genuinely apologize for it! They lie by leaving out of their narrative the horrible Article 36(2)-related blunders that effectively took the matter from our hands and sealed our fate!

Having gotten the “blunders” and the “lies”, what about the other aspects of our Government’s handling of this matter – the post-judgement phase? At this juncture, the issue effectively becomes to navigate the intersections between national interest, international obligations and international politics, meaning, in practical terms, a decision by the political leader whether, and, if so, to what extent to comply with the World Court’s judgement. The dilemma, of course, is that a leader of a country that counts itself a worthy and committed member of the international community feels the need to respect a World Court judgement, even one unfavourable to his country.  At the same time, however, that same leader is expected by his own people to regard preservation of the country’s territorial integrity, along with protection of its citizenry, to be his first and foremost duty – something indeed that many-a-leader in history has considered a sacred patriotic duty worthy of the ultimate sacrifice.

Given this dilemma, one would understand, even expect, that such a leader would exhibit the utmost reluctance in accepting the consequences of the judgement and explore every possible legitimate means to avoid or at least delay its implementation.  That would be the normal expectation, but those having such expectations may have forgotten that this is Nigeria, where the “normal” is often stood on its head and the exact opposite obtains! How else does one explain the truly remarkable and, one must add, unseemly, haste with which President Obasanjo pursued the aim of handing over the Bakassi Peninsula, along with its erstwhile Nigerian population, to Cameroon?!  One recalls the tense and bullying atmosphere in the country at the time, it being clearly understood that the Government (i.e. President Obasanjo) would brook no questioning about, let alone opposition to, the Bakassi handover! Hence, there was very little public discussion, not to talk of public debate, about such an important matter of national interest. In fact, one barely recalls any really serious and sustained effort to explain to the people what was going on or to engage the affected Bakassi indigenes in discussions about their welfare and future, despite protest by some of their political representatives. It was like speaking to the bulldozer demolishing your house!

All of this raises the question as to what was really going on and, in particular, why the President who, if anything should have been dragging his feet over it, was the one pushing the handover, including pressuring the Senate to ratify the Green Tree Agreement he had personally negotiated to implement the handover. While one cannot pretend to know President Olusegun Obasanjo’s real motivation in this matter, it would be equally obtuse not to notice that this was a time when his profile as an international statesman and peacemaker was on the rise following his mediation role in political crises in several African countries, and his name was being mentioned in connection with the Nobel Peace Prize and even the Secretary-Generalship of the United Nations. Pulling off a successful and peaceful transfer of Bakassi would be a great opportunity to burnish those statesman and peacemaker credentials. It would certainly not hurt!  Whether, and if so, to what extent this quest for personal glory was a factor in this whole Bakassi saga we may never know, but it is an intriguing thought!

•Dr. Okali, a former United Nations Assistant Secretary-General, is a Lawyer and Social Thinker.