After The World Court Blunder; It’s Time For A U.N. Security Council Referendum In Bakassi

By

Anthony Okosun

tonyosun@yahoo.co.uk

      It was James Madison (The Federalist, No.51, 1787-1788) who declared “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”

      Contrary to the erroneous belief of many, it’s not yet over for the people of Bakassi. The good Bakassi people can still enjoy their dream of remaining in country Nigeria, with their kiths and kins in Cross River and Akwa Ibom States in Nigeria. Yes Nigeria Blundered, by agreeing with Cameroun to go the World Court, for a resolution of the Bakassi quarrel. Nigeria should have known better. The World court as an establishment designed to interpret and adhere to legal bureaucratic norms rigidly; was the very place, Nigeria should have aggressively avoided, with determination and great gusto. You could ask me why? The World Court was duty bound to decide that Nigeria should abide by the obnoxious treaty made by the European triumvirate (Germany, France and Britain) that ceded Bakassi to Cameroun. Thus going to a body, that see itself as an establishment, that was merely saddled with the responsibility of interpreting the provisions of that obnoxious and repugnant treaty, was not merely a mistake, but a great disservice to the great people of Nigeria in general and the good people of Bakassi in particular.

      This piece of writing, is not a post humus wailing and lamentation over, what could have been; had Nigeria taken and acted on the right decision. This work is about the way forward. The road to follow, to enable Nigeria retain Bakassi and help the indigenes reclaim their heritage and dignity, is not sealed yet. The next battle ground, should and must be the United Nations, Security Council. The U.N. Security Council, is the most powerful organ in the United Nations. It is the organ that has appellate superiority over the World Court. It is the organ that can order military action against any nation. It is the organ to which the World Court reports. It is the organ, that can order a referendum to be conducted in the Bakassi Peninsula. The U. N. Security Council, is the only place that Nigeria, should have agreed to have the Bakassi matter resolved ab initio. Anyway, as I shall explain in this piece, it is not yet late for country Nigeria to go to the U.N. Security Council to ask for a referendum in Bakassi.

      A referendum sometimes called plebiscite means a decree of the ballot question, in other words a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. The referendum or plebiscite is a form of majority agenda driven, direct democracy.  There are several instances, where the U.N Security Council has conducted referendum in the past. e.g  United Nations Security Council Mission for Referendum in Western Sahara. United Nations Security Council referendum in Myanmar.  The UN Security Council referendum in which the East Timorese voted for independence. The U.N. Security Council on the complaint of Government of India concerning the dispute over the State of Jammu and Kashmir passed resolution 47 (1948), “that both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite (Referendum)    

        Prior to the World Court's expected judgment, both Nigeria and Cameroon have been pugnacious and belligerent to one another. Thus many believed, that going to the World court was merely to determine the jus ad bellum for a final jus in bello over control of the Bakassi peninsula, which was never clearly marked during colonial rule. Cameroon first requested a world court ruling on the border dispute in 1994. Both nations promised before the decision to abide by the court decision. At stake are/were major oil reserves believed to be in the border area, as well as rich fish stocks in nearby waters

       In pursuit of the World Court’s judgment; On 12, June 2006, the presidents of Nigeria and Cameroon signed an agreement settling the decades-old, border dispute, following intensive mediation by United Nations Secretary-General Kofi Annan, at Greentree New York, USA. The Greentree Estate, Manhasset, New York City Concordia, executed by President Olusegun Obasanjo of Nigeria and President Paul Biya of Cameroon and witnessed by and the United Nations, Secretary General provides for the withdrawal of Nigerian troops within 60 days, with a possible 30 day extension, from Bakassi, which the International Court of Justice (ICJ) the United Nations; Court no Original jurisdiction awarded to Cameroon in 2002. Under the agreement, transitional arrangements will be completed in two years for the Peninsula, which was the last of four areas to be demarcated in accordance with the World Court’s decision.

        On or about August 14th, 2008, Nigeria completed handing over control of the oil-rich Bakassi peninsula to its neighbor Cameroon. The legal paperwork thereof, covered the tenure of two Nigerian Justice Ministers, Bayo Ojo and Michael Aondoakaa. On the Camerounian side, the country’s Justice Minister, Maurice Kanto, represented his country. At the time, Nigeria’s President Umaru Yar'Adua had this to say, "This handing-over process, as painful as it is for everyone including the president, is a commitment we have made to the international community and we have a responsibility to keep it," he said.

       A very worrisome perspective in the World court’s judgment, is the total neglect of the true intentions and wishes of the indigenous people of Bakassi to remain with their extended kith and kin in Nigeria. Was it fair for the World Court to have relied on a document that was written and executed by foreign powers, with only their selfish economic exploitation interests at heart? Was it fair for the World Court to have relied on a document that was written and executed by foreign powers, to the utter neglect and detriment of the  indigenous people, whose individual and corporate destinies were severely affected but not considered?   Would it be wrong to call the execution of the original document and the recent judgment that gave the Bakassi Peninsula to Cameroun; an obnoxious exercise in pseudo and neo slavery? Is it too late to fix these monumental travesties of justice? Nope, it’s not too late.

       The World court delivered it’s judgment and abandoned the Bakassi people to wail and lament in the cocoon of their own worries, fears and suffering. The Bakassi people have overwhelmingly decided to remain as Nigerians in Nigerian territory. One of the problems begging to be resolved is that of the resettlement of Bakassians returning from their former homeland. The Bakassi people ought to have been given the opportunity to decide their fate; through a referendum.        
       The United Nations Security Council, World Court, Cameroon, and Nigeria have never given the Bakassi natives, who are expected to leave their ancestral homeland, after so many years of abode there; an opportunity to contribute to the determination of their individual and corporate destinies. Indeed the world and especially the World Court have been very unfair to the good people of Bakassi. Now, is it possible to ensure that the good people of Bakassi, relocate in a way, that is as painless as possible? Nope, it is not possible. Are the graves of the deceased ancestors of Bakassians going to be relocated as well? Can the Bakassians be restored gracefully to their traditional ways of earning a living, with little or no dysfunction i.e. fishermen and farmers? Will the Nigerian government provide these displaced persons new lands and rivers, they can call their own? Will the Nigerian government build them new homes? Will their fishing nets, boats, farming tools etc be restored. I read somewhere that Nigeria has voted huge sums of money for the smooth relocation of these people. How much of that money, will actually get to these displaced persons.

         Well, let it be known, that until the Constitution of the Federal Republic of Nigeria is amended in such a way as to remove Bakassi from the Constitution as a territory belonging to Nigeria, the purported transfer of Bakassi to Cameroun is an illegal exercise. The implementation of the World Court’s judgment, ought to have waited for such a time, when Nigeria’s constitution, would have been amended to accommodate the mutatis mutandis status. Nigeria remains a sovereign independent state. The judgment of an international institution cannot and must not compromise Nigeria’s territorial sovereignty. 

      The World Court, which is officially called the International Court of Justice (ICJ), is the principal judicial organ of the United Nations. The function of the World Court is to resolve disputes between sovereign states. Disputes may be placed before the court by parties upon conditions prescribed by the U.N. Security Council. No state, however, may be subject to the jurisdiction of the court without the state's consent.

      Under article 94 of the U.N. Charter, if a party does not comply with the obligations imposed on it by the court, the prevailing party may seek recourse from the Security Council. In 1984, in Nicaragua v. United States, the United States temporarily withdrew its prior acceptance of compulsory jurisdiction in disputes relating to Central America. Despite the withdrawal, the court proceeded with the case and decided that the United States had breached international law by seeking the overthrow of the Marxist Nicaraguan regime through the funding of counterrevolutionary groups. Nicaragua appealed to the United Nations Security Council for satisfaction of judgment.

        Generally, the World Court has generally refrained from hearing contentious cases that are political in nature, due in part to its lack of enforcement mechanism and its lack of compulsory jurisdiction. The Court has generally found it did not have jurisdiction to hear cases involving the use of force. The World court would have been forced to suo motu, refer Nigeria v. Cameroun matter to the U.N. Security council, had Nigeria rejected the judgment. Reason: The World Court lacks the jurisdiction to order the use of force. Unlike the fear and worry of many Nigerians; appearing before the U.N. Security Council, would have given Nigeria, the opportunity to demand for a U.N. Security council referendum in Bakassi. 

       Now, let us consider the true interpretation and lawmaker intention of Article 94 of the United Nations Charter:

Article 94

If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

         Though literally interpreting Article 94, would give the impression that only the victor in a case adjudicated upon by the World Court can appeal to the Security council for satisfaction of judgment; in legal parlance; interpretation of statutes is not that parochial.  If the losing party cannot appeal to the Security council; that would amount to the existence of a lacuna in the law. A lacuna means a vacuum in law. Such a scenario, is usually avoided, by the instrumentalities of the Golden Rule of Interpretation and the Mischief Rule of Interpretation; among others.     The application of the combined legal instrumentalities of the Golden Rule of Interpretation and the Equitable Maxim that Equity is Equality would mean, that both the victor and the vanquished can appeal to the United Nations Security Council.

       The Golden rule, or British rule, is a form of statutory interpretation that allows a judge to depart from a word's normal meaning in order to avoid an absurd

it is a compromise between the plain meaning (or literal) rule and the mischief rule. Like the plain meaning rule, it gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature's intention, the judge can depart from this meaning. Where a word can have more than one meaning, the judge can choose the preferred meaning; if the word only has one meaning, but applying this would lead to a bad decision, the judge can apply a completely different meaning.

        It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further. Grammatical and ordinary sense of a word is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but not farther.    The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles of public policy, even where words have only one meaning.

        It is important to point out, that it is not too late at this juncture for Nigeria to seek a United Nations Security Council Referendum in Bakassi. That Nigeria has complied with the World Court’s judgment is not a bar to our eligibility to request for a United Nations Referendum in Bakassi. Partial (or full) satisfaction of a judgment is not a bar to the jurisdiction of an appellate court. See  U .S. Supreme Court United States v. Dashiel, 70 U.S. 3 Wall. 688 688 (1870)  When Nigeria complied with the World court’s judgment, we were only following the equitable Maxim - "he Who Comes Into Equity Must Come With Clean Hands."

This maxim bars relief for anyone guilty of improper conduct in the matter at hand. It operates to prevent any affirmative recovery for the person with "unclean hands," no matter how unfairly the person's adversary has treated him or her. The maxim is the basis of the clean hands doctrine. Its purpose is to protect the integrity of the court as a matter of public policy. Thus having complied with the judgment of the World Court; Nigeria is now in a better position to appeal the Judgment of the World Court to the United Nations Security Council. Specifically, Nigeria is now in a better position to request a United Nations Security Council Referendum. Lest we forget, the Security Council is superior to the World Court. Thus Nigeria, will not be breaching protocol nor acting in futility, by requesting a U. N. Security Council referendum in Bakassi.

      Some legal scholars and pundits may argue, that if Nigeria is appealing to the U.N. Security Council; Nigeria cannot introduce a demand for Referendum, since Nigeria did not originally demand Referendum at the World Court. Well, my answer to such persons, is that this is basically a political ruckus. The U.N. Security Council is not a regular Court. Thus it’s processes and procedures are guided mainly by equitable rules of resolving political disputations.

             It is fair and proper for Nigeria to ask the U.N. Security Council to conduct a referendum in Bakassi, because "Equity regards substance rather than form."  Equity will not permit justice to be withheld just because of a technicality. Equity will disregard formalities that frustrate justice and a better approach found for each case. Equity enforces the spirit rather than the letter of the law alone. In the instant situation, justice obviously has not been served. The people of Bakassi have been the losers all along. The proper course of action; is for Nigeria to request a United Nations Security council Referendum in Bakassi.

    Again, it is fair and proper for Nigeria to ask the U.N. Security Council to conduct a referendum in Bakassi, because 

"equity Will Not Suffer A Wrong To Be Without A Remedy." it is the traditional purpose of equity to find solutions in lawsuits. Where money will not pay for the injury, equity has the authority to find another remedy.  This maxim is a restatement of the broad legal principle: Ubi jus, ibi remedium, "Where there is a right, there is a remedy." It calls forth recognized remedies for well-established wrongs, wrongs that are invasions of property rights or personal. In the instant case between Nigeria and Bakassi; the people of Bakassi have been wronged. The World Court has been most unfair to the good people of Bakassi. I recommend that Nigeria, should seek a referendum at the U.N. Security Council

       Equity abhors a forfeiture.  A FORFEITURE is a total loss of a right or a thing because of the failure to do something as required. A total loss is usually a rather stiff penalty. Unless a penalty is reasonable in relation to the seriousness of the fault, it is too harsh. In fairness and good conscience, a court of equity will refuse to permit an unreasonable forfeiture. This maxim has particularly strong application to the ownership of land, an interest for which the law shows great respect.

        What the World Court has succeeded in doing so far, is to induce the people of Bakassi to forfeit their history, means of livelihood, ancestral graves, homes lands etc. This could be likened to a social and material holocaust.

         According to Ayn Rand "The only proper purpose of a government is to protect man's rights, which means: to protect him from physical violence... The only proper functions of a government are: the police, to protect you from criminals; the army, to protect you from foreign invaders; and the courts, to protect your property and contracts from breach or fraud by others, and to settle disputes by rational rules, according to objective law. A former two time American President (22^nd and 24^th) Grover Cleveland once declared “ Good government ………….has for it’s objects the protection of every person within it’s care in the greatest liberty consistent with the good order of society, and his perfect security in the enjoyment of his earnings with the least possible diminution for public needs.”

        Nigeria’s government owe Nigerians a duty to protect the Bakassi people. Every thing that can be done to secure Bakassi, must be done. The United Nations Security Council, has never before been explored. Now is the time to explore that option. Some folks must not sit tight in Abuja and tell the rest of the country, that all that can be done has been done. Certainly that is not true. Going to the World Court was an error. We have put that behind us. Now, Nigeria must get the best brains and the best hands; whether Nigerians or foreign experts, who are familiar with the Security Council terrain and can get things done. These folks would help to take care of the active ‘behind the scene maneuverings’ not only to get this matter tabled before the U. N. security council, but to ensure that Nigeria gets a fair deal.

       At the World Court, Nigeria was represented by some members of the Nigerian legal community. Cameroun went for some of the best and brightest legal minds in the world. We all saw the end result. It is true that Nigerian diplomats are in New York representing Nigeria at the U.N. Headquarters. It is also true, that Nigeria diplomats have not been very successful in securing Nigeria’s interest viz-a-viz other nations. We have learnt our lessons at the World Court. The battle at the United Nations must be fought and won. We should fight hard to secure and enlist the support of any of the veto power wielding nations. Who could and would come in handy to veto any anti referendum resolution.

ANTHONY OKOSUN @YAHOO.CO.UK