ECOWAS Protocols and Regional Insecurity: Right of Establishment versus Armed Banditry in Nigeria


By Bola A. Akinterinwa

The Economic Community of West African States (ECOWAS) was initially established as a sub-regional economic cooperation outfit in 1975. Seven complementary factors were considered in establishing the economic community: need for economic and social development of all the Member States; that economico-social development requires cooperation through concerted policy of self-reliance; that sub-regional economic integration progress requires assessment of economic interests of Member States; the need for a fair and equitable distribution of the benefits of cooperation; that bilateral and multilateral economic cooperation will enable wider cooperation; that efforts at sub-regional cooperation should not conflict with similar efforts at wider level of cooperation in Africa; and most importantly, the need to eliminate all types of obstacles to the free movement of goods, capital and persons.

The Treaty establishing the ECOWAS was done in Lagos, Nigeria on May 28,1975.It was revised and signed in Cotonou on 24th July,1993. It entered into force on 23rd August, 1995. Three types of agreement are done within the framework of the 1975 ECOWAS Treaty as Revised: Conventions, Protocols, and Acts. Although there are nuances in their conception, they all create obligations for all the Member Signatories. We are more concerned here with protocols. Cognitively put, a protocol is either a summary of a treaty, or an agreement itself, or a treaty that amends or supplements another treaty. It is a procès-verbal, that is, a formal record of proceedings of a conference or of a congress.

The notion of a conference refers to the outcome of serious intellectual meetings while that of a congress refers to outcomes of political meetings. In the context of ECOWAS, the Protocols are largely a resultant from political meetings. Commitment to the obligations created by the Protocols cannot be said to be total: in the period from 1978 through October 2010, the number of Protocols and Conventions signed was 53 (fifty-three). Ghana and Togo topped the list with 43 ratifications each, followed by Sierra Leone, Mali and Senegal with 42 ratifications each. The Gambia had 41 ratifications while Nigeria and Burkina Faso were placed in the fourth group with 40.

What is noteworthy again is that the Lusophone countries had the least number of ratifications. Guinea Bissau, for instance, ratified 24 out of 51 agreements which it had signed or to which it had acceded. Guinea Bissau did not sign or accede to the Conventions on Extradition. In the same vein, the Republic of Cape Verde ratified 24 agreements out of 50 of which it is part. It should be noted that Cape Verde neither signed nor acceded to the Protocol Relating to Mutual Assistance on Defence; the Protocol Relating to the Mechanism for Conflict Prevention, Management Resolution, Peace-keeping and Security; and the Protocol on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security. This lack of total commitment to the Protocols relating to national and sub-regional insecurity largely explains why armed banditry and insurgency is thriving in Nigeria and West Africa.

ECOWAS Protocols and Regional Insecurity
The lack of total commitment to ECOWAS Protocols can be explained by the factor of tardiness in ratifying them and by refusal to even accede to some of them. In terms of number of agreements yet to be ratified as at the end of March 2009, Ghana and Togo had 10 each. Senegal, Sierra Leone and Mali had 11 each. Nigeria had 13, Liberia and Guinea Bissau had 28 while Cape Verde had 26. The implications of non-entry into force and lack of total commitment include non-creation of obligations, especially in the context of conflict prevention and management, as well as the need for mutual assistance. Apart from intra-Community assistance, some of the protocols constitute a major source of political instability as it is in Nigeria with Boko Haramism and armed banditry. Vie Internationale strongly believes that the relevant Protocols relating to regional insecurity should be revisited in order to contain the deepening level of insecurity in the ECOWAS region.

Of the many Protocols done, two categories of them deal directly and indirectly with regional security (African Union’s definition of a region as per AEC Treaty, Article 1(d) and (e). The direct Protocols are the Protocols on Non-aggression, the Protocol Relating to Mutual Assistance on Defence, and the Convention on Mutual Assistance in Criminal Matters. The issues of Free Movement of Persons, Residence and Establishment, from which complaints about armed banditry and insurgency, as well as terrorism are derived from in Nigeria, are the indirect agreements.

They include the Protocol Relating to Free Movement of Persons, Residence and Establishment; Supplementary Protocol on the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment; Supplementary Protocol on the Second Phase (Right of Residence) of the Protocol on Free Movement of Persons, the Right of Residence and Establishment; Supplementary Protocol on the Implementation of the Third Phase (Right of Establishment of the Protocol on Free Movement of Persons, Right of Residence and Establishment; and Supplementary Act A/SA.3/07/10 Defining the Role of Permanent Representatives of Member States to ECOWAS.

Explained differently, ECOWAS Protocols encourage free movement of persons, goods, their right to settle down and reside in any Member State, and more importantly, what the roles of the Permanent Representatives should be. In Nigeria, the situation of insecurity has become very critical and embarrassing to the extent that questions are now being raised on the aforementioned protocols. What have the Protocols provided for? In which way do they constitute public threats to regional and sub-regional security? What role has the ECOWAS been playing in Nigeria’s crisis of insecurity?

In the strong belief that the ECOWAS could not ‘attain its objectives save in an atmosphere of peace and harmonious understanding among the Member States of the Community and in compliance with Article 2(4) of the United Nations Charter, which prohibits threats or use of force against the territorial integrity or independence of any State, as well as in compliance with Article 3(3)of the OAU Charter, which required the respect for the sovereignty and territorial integrity of each State, the ECOWAS Authority signed the Protocol on Non-aggression in Lagos on 22nd April, 1978.

Even though the Protocol is, in design, meant to prevent any threat or use of force against one another, or encouraging or condoning acts of subversion, the provisions of Article 2 and 3 are quite relevant and interesting to the Nigerian situation. Article 2 says that ‘each Member State shall refrain from committing, encouraging or condoning acts of subversion, hostility, or aggression against the territorial integrity or political independence of the other Member States.’ In this regard, how do we interpret ‘shall refrain from…condoning acts of subversion…? An act of condoning is necessarily an act of acquiescence. Not condoning simply implies coming into the open to condemn, to join hands with the victim states to fight all manifestations of subversion. It is a truism to say that the Boko Haram insurrection has the objective of subversion of the Government of Nigeria, and in fact, an objective to create an Islamic State in Nigeria. And where an Islamic State is impossible, to have Nigeria partitioned into Muslim North and Christian South.

The apparent inadequate silence or inaction of the ECOWAS Member States on the matter of subversion is a breach of Article 2 of the Non-aggression Protocol. Perhaps more interestingly, according to Article 3 of the Protocol, ‘each Member State shall undertake to prevent Foreigners resident on its territory from committing the acts referred to in Article 2 above against the sovereignty and territorial integrity of other Member States.’ The immediate implication of this Article is that, while the Protocols on Free Movement of Persons, Right of Residence and Establishment are there for Community Citizens to take advantage of, it is still the responsibility of their host States to control and prevent the resident Foreigners from engaging in any act of subversion. Thus whether the Fulani herders creating problems in different parts of Nigeria are Nigerians or foreigners, President Muhammadu Buhari cannot have any good excuse for his inability to ensure national security in Nigeria. He is internationally liable for his inability.

Again, from the perspective of Protocol A/SP.3/5/81 Relating to Mutual Assistance on Defence, done on the 29th May, 1981 the ECOWAS Authority considered that Member States belong to the same geographical area and that there were ‘serious continuous threats of aggression on the African continent’ that may ‘constitute support forces to external aggression,’ and therefore resolved to ‘safeguard and consolidate the independence and the sovereignty of Member States against foreign intervention.’ It is against this background that the Protocol on the need for mutual assistance was done.

Article 2 of the Protocol provides that ‘Member States declare and accept that any armed threat or aggression directed against any Member State shall constitute a threat or aggression against the entire Community. And more interestingly, Article 3 of the same Protocol stipulates that ‘Member States resolve to give mutual aid and assistance for defence against any armed threat or aggression.’ Additionally, Article 4 requires all Member States to also take appropriate measures in the event of an armed conflict between or among Member States in which peaceful means of settlement becomes difficult, and particularly ‘in case of internal armed conflict within any Member State, engineered and supported actively from outside likely to endanger the security and peace in the entire community. In this case, the Authority shall appreciate and decide on this situation in full collaboration with the Authority of the Member State or states concerned.’

A cursory look at the foregoing protocolar provisions clearly shows that the Boko Haram insurgency is not simply an insurgency against the Government and People of Nigeria but also against the entire peoples in the ECOWAS region. Consequently, all the Member States of the ECOWAS have the responsibility to provide assistance to the Government of Nigeria by obligation. The insurgency has a foreign support element. Both the United Nations and the African Union also frown at domestic insurrection. And most unfortunately too, it is precisely these ECOWAS Protocols that are aimed to promote regional unity and economic integration that have been a major dynamic of insecurity in Nigeria, hence Government has been fraught with challenges that Member States have not been able to contain. In this regard, what are the relevant ECOWAS Protocols on the matter?

Right of Establishment versus Armed Banditry
Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, in consonance with paragraph 1 of Article 27 of ECOWAS Treaty that confers the status of Community citizenship on the citizens of Member States and which also enjoins Member States to abolish all obstacles to freedom of movement and residence within the Community, has it in its Article 2 that ‘the Community citizens have the right to enter, reside and establish in the territory of Member States.’

For the purposes of this right, a maximum transitional period of 15 years from the definitive date of entry into force was provided for in the Protocol, which entered into force on April 8, 1980, meaning that the transitional period should end in the first week of April 1995. More important, whatever may be the obstacles to the enablement of the Right of Entry, Residence and Establishment, the obligation is that the obstacles must have been removed within the 15-year period of transition provided for in Article 3. The article delineated a 3-phase period for the attainment of the objective.

In the first phase, 1980-1985, Member States were required to have ensured that all obstacles to the enjoyment of the Right of Entry must have been removed. The issue of Visa must have been thrown into the garbage of history. Phase II is the Right of Residence, meaning that, within the first ten years,1980-1990, the issue of visa and Right of Residence must no longer be a problem for Community citizens. The third phase, 1990-1995, is that of Right of Establishment. In this regard, the Right of Residence is about living peacefully and lawfully in the host country. The Right of Establishment is to enable engagement in business and professional activities without being discriminated against in the host Member State.

On the particular issue of Entry Permit and abolition of visas, the provision of Article 3 is quite pertinent in understanding the implication for insecurity in Nigeria. It says in its paragraph 1 that ‘any citizen of the Community who wishes to enter the territory of any other Member State shall be required to possess valid travel document and international health certificate. More important, paragraph 2 stipulates that ‘a citizen of the Community visiting any Member State for a period not exceeding ninety (90) days shall enter the territory of that Member State through the official entry point free of visa requirements. Such citizen shall, however, be required to obtain permission for an extension of stay from the appropriate authority if, after such entry, that citizen has cause to stay for more than ninety days’

And perhaps most relevantly, Article 4 says ‘notwithstanding the provisions of Article 3 above, Member States shall reserve the right to refuse admission into their territory any Community citizen who comes within the category of inadmissible immigrants under its laws.’ Additionally, even though Article 10 of the Protocol stipulates that ‘the provisions of the Protocol shall not operate to the prejudice of citizens of the Community,’ the non-application of the Protocol is still subject to the Community citizen complying ‘with the laws in general and, in particular, with the immigration laws of that Member State.’

Many issues are raised in the foregoing protocolar provisions. First, any Community citizen visiting Nigeria is not simply required to hold valid travel documents but particularly to enter Nigeria ‘through the official entry point.’ Criminals hardly use official entry points. Nigeria’s international borders are at best very porous. Even when they pass through the official entry point, the borders are open market for institutional corruption. Secondly, When a Community citizen stays beyond 90 stays, Nigeria is not a police state. There is no policy of monitoring of foreigners in Nigeria.

And true enough, President Olusegun Obasanjo once directed the Nigeria Immigration Service to open offices in all the 774 Local Government headquarters for the purposes of enhancing internal security. Can the Immigration Service explain where it is on the matter as at today? Who really is a Nigerian by blood descent or by place of birth that should be eligible to carry valid Nigeria’s passport? Many Foreigners carry Nigerian passports. How did they get them? Nigeria’s problems are unnecessarily complex. Nigerian politicians argue, on the one hand, that the Fulani-herders who kill and maim farmers on their own land need to protect themselves with AK-47 rifles, hence justification of the criminal killings. On the other hand, it is also posited that the criminal Fulani herdsmen are foreigners, but politicians ask for amnesty for the foreign criminals. Kidnapping is now the most lucrative business. Government knows and negotiates with the kidnappers but is wrapped up in the glory of political chicanery of securing the abductees. Most unfortunate!

In fact, President Buhari, rather than raise questions on foreigners living irregularly in Nigeria, simply gave six months to them to regularise their stay. For not applying for extension of stay, the illegal residents committed a criminal offence. Such regularisation completely ignored whether the visitor was eligible for admission into Nigeria in the first instance. On the basis of PMB’s directive, Nigeria undoubtedly attracted more bandits into Nigeria, a situation that now raises how to reconcile the contradiction between the Right of freedom to reside and establish in Nigeria, and preventing resident foreigners from engaging in armed banditry and insurrectional activities in Nigeria. Thus ECOWAS Protocols are not the problems per se, but the corruption-driven refusal of Government to truly control the inflow of bandits. ECOWAS Protocols can be revisited and strengthened. However, the Nigerian truth was already told by Babington Macaulay in a House of Commons speech in 1842: ”Timid and interested politicians think much more about the security of their seats than about the security of their country.” This is why Nigeria under PMB has become the terra cognita of armed banditry and boko haramism.