Alobo’s Legal Option of Self-determination for Bakassi: Fallacies and Misconceptions

By

Tatabonko Orok Edem

tatabonko@gmail.com

Introduction

Professor Eni Eja Alobo’s 53 - page 15,768 word article titled: “THE JUDGEMENT OF INTERNATIONAL COURT OF JUSTICE ON SOVEREIGNTY OVER BAKASSI: AFTERMATH, LESSONS AND THE LEGAL OPTION OF SELF DETERMINATION” delivered on the occasion of the celebration of the 60^th birthday of Retired Honorable Justice Charles Effanga Archibong in Lagos, Nigeria, on September 30 2013, in the presence of the Law School class of 1978, is a sad reminder of the level of intellectual deficit prevalent amongst our learned fellows of today and their protégés.  

Alobo holds a doctorate degree in International Law, and happens to head the Department of International Law at the University of Calabar, Nigeria. One would think that the possession of such esoteric qualifications would make him conversant with basic rule of common law and common sense, but alas, the paper is disappointing in its foundational underpinnings and conclusions. I must confess that compared to Eni Eja Alobo, my intervention is anchored on international normative theory and justice which is designed to foster order and stability in the system and encapsulates standards of behavior defined in terms of rights and obligations under International Law[1].

Alobo and the misreading of International Law

On page 2 of his paper, Alobo boldly lays out the premise for his intervention thus:

“The need for the people of Bakassi to be rescued from this institutionalized discrimination which has eroded substantially their basic human rights in social and political development, education, self-government, and autonomy must be put on the front burner.”

I want to juxtapose this with what ‘we’ the People of Efik Kingdom who own Bakassi and those who live in Bakassi really want. The gem below in italics, which encapsulates the thinking of true Bakassi people, was culled from a Conference Report[2] organized by the Vanguard Newspapers of Nigeria. Unfortunately, the person who made the comment was not named.

“But Naboth said nothing will make him sell his vineyard to the king even if it means dying for it. So the Bakassi people in this line would not agree to resettle. We are still in the peninsula in our numbers. We will not leave our Efik land to anywhere because there cannot be a second Bakassi anywhere. If there are politicians that are interested to go back and contest elections under the Nigeria constitution it is a different case.”

I am particularly alarmed that the learned Alobo does not seem to understand the process that occurred after Nigeria’s sojourn at the International Court of Justice In the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) of 10 October 2002.  After the award of the political and administrative powers to the Republic of Cameroon, the United Nation (UN) Secretary General encouraged the two countries to sign a Greentree Treaty and also appointed a Special Representative for West Africa who currently serves as the Chairman of the Cameroon-Nigeria Mixed Commission established in November 2002 to oversee and facilitate the implementation of the United Nations mandate that emanated from the decision of October 10, 2002.

The mandate of the Commission covers the following fields:[3]

(i)                 Demarcation of the land border and delimitation of the maritime boundaries between the two countries.

(ii)               Withdrawal of the civil administration, the military forces and police force, and transfer of authority in the zones concerned located along the border in the peninsula of Bakassi.

(iii)              Demilitarization of the peninsula of Bakassi.

(iv)              Protection of the rights of the populations concerned.

(v)                Development of projects aiming at promoting the economic joint ventures between the two countries and cross border cooperation.

(vi)              Reactivation of the Commission of the Basin of Lake Chad.

In other words, a law degree is not required to understand that the ICJ ruling is final; Nigeria declined her right to an appeal, the two nation States that engaged in the litigation accepted the judgment and have taken further steps to actualize the judgment. On what basis in law is Alobo now asking Nigeria to spearhead an intervention on behalf of Bakassi people? There is a legal maxim that states thus: Interest Reipublicae ut sit finis litium, which, in simple English means, that all interests in the litigation must and has come to a complete end or there must be an end to litigation.

On page 5, of his essay, Alobo states that he was offering the way forward thus: “This lecture 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 help the indigenes enforce their inalienable rights so as to reclaim their heritage and dignity.” I beg to politely disagree with that premise; his essay is a waste of time and filled with intellectual gobbledygook. The way forward is not to deceive the poor people of Bakassi on any eventual overturning of an ICJ judgment based on spurious reasons. After the entry of the judgment in 2002, Nigeria had TEN years to appeal. She did not. On what basis would there be a way forward to reverse the said judgment, with Nigeria leading the way, after she had accepted the judgment and has taken steps to affect same?

On page 14, Alobo cites Dakas, C.J., and the penalty of non-compliance, and suggests that only Cameroon is out of compliance post ICJ decision and wants Nigeria to use that as her basis for seeking a reversal of the judgment. This writer feels compelled to remind Alobo that after the ICJ judgment the UN Security Council issued a mandate backed by the force of International Law necessary to enforce the judgment should the need arise. Under that Law, the UN can only intervene in Bakassi, if, and only if, the mandates listed above are being flouted by any of the two nation states! As you can see from Mandate #s 1, 4 and 5, above, Nigeria is also non-compliant. Nigeria, in its usual way, has gone ahead to set up a Cobham Commission whose ultimate resolution was the resettlement of Bakassi refugees west of the Akpayefe River on islands that belong to the Cross River State. In the classic Nigerian sleight of hand, Nigeria also issued a Supreme Court judgment when the demarcation of the maritime boundary between Cameroon and Nigeria had not been completed; ceding the waters that washes off on these islands to the administration of Akwa Ibom State. Of what use is an island to a fisherman, if he does not have the right to fish in the waters that bathes the islands? But Alobo only accuses the Republic of Cameroon of non-compliance and wants her sanctioned at the instigation of Nigeria.

Alobo also works himself into a tizzy over the outcome of the ICJ judgment – “The decision jolted the dreams and aspirations of the Bakassi people and threw the entire country into a frenzy and delirium. It practically transformed thousands of Nigerians into aliens on their ancestral land and has resulted to deportation and relocation of the people of Bakassi, against their wish to Nigeria by Cameroonian authorities, thereby creating a general state of insecurity and uncertainties among the affected people”.(Alobo, 2013)

I submit to Dr. Alobo and the law school class of 1978, that amongst the Efik, the thinking is that Nigeria lost Bakassi, the Efik have not. Again, I would suggest that he re-read the comment made by an Efik resident in Bakassi above to understand the thinking of Efik People and not get unduly excited.

It is baffling that after Alobo rightly identified the ratio decidensis of the ICJ judgment on page 16, of his paper as being based solely on the interpretation of a pre-colonial and colonial treaty that occurred after the inception of the Westphalian notion of sovereign states, he then embarks on a voyage of discovery on page 25, by trying to hide under the intervention of Dr. Walter Ofonagoro, a historian, who came out with further evidence (after the judgment of 2002) that the area in dispute actually belonged to the Efik Nation. I want to add that Dr. Alobo, who I suspect loves Nigeria with all his might, should get down on his knees and thank the ICJ for recognizing the colonial boundaries of Nigeria as accepted by the colonial powers, as being sacrosanct. What if the ICJ had accepted Nigeria’s argument? Is Alobo aware that the same colonial powers signed similar treaties with most of today’s Nigeria’s coastal dwellers that could lay a legal ground norm for the dismemberment of Nigeria? Why is there a rabid and quixotic attempt to reverse the decision of the ICJ judgment, and yet no whimper has been heard about the Nigerian Supreme Court judgment that rendered Cross River State non littoral?

Thus, going to a body, that sees 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. (Alobo, 2013)

Let me also explain something to Alobo. The difference between the Cameroon Republic and the Federal Republic of Nigeria is like the difference between six, and, a half dozen. For those of us who have been living, inter marrying and trading with people domiciled in that part of the world, the tendentious dislike of being in Cameroon is superfluous. It is trite that if a State is completely annexed or dismembered, that is, if complete state succession occurs, its rights and obligations do not survive it. See Haile Selassie v. Cable and Wireless, Ltd., No. 23, England, Court of Appeal Chap. 182, 195 (1939) It is also a well known point in International law that every inhabitant of a ceded state automatically becomes a national of the receiving state. See A. B. v. M. B.., 6^th April 1951, Tel Aviv District Court, Pesakiim Mohozim, 111, 263 (1950 – 1951). As a professor of International Law, Alobo ought to know that under International Law, real property rights of individuals are usually protected in cases of state succession, as indicated in the U.S. Supreme Court ruling, which held that it was civilized usage to honor such arrangements despite succession of the United States to Spanish Florida). See U.S. v. Arredondo, 31 U.S. [6 Pet.] 691 (1832). Thus, to us Efik People, the cession of Bakassi to Cameroon, is not different from the cession of James Town to Akwa Ibom State, and if Nigeria is sincere, let charity begin at home. Return our territories to us here in Cross River State that is within Nigeria’s jurisdiction. Conduct a plebiscite in these areas that forms part of the Efik Nation within Nigeria before you worry about parts of the Efik Nation that is within another country’s borders. James Town is part of the Efik Kingdom by an act of discovery, and Tom Schott Island is part of the Efik Kingdom by act of conquest. The Efik, ipso jure, exercised territorial sovereignty over the two islands.

There is nothing ‘novel’ about the issue of plebiscite.

It would have been very funny but for the tragedy of the situation for Alobo ensconced in the Faculty of Law, University of Calabar, to show up in 2013 to espouse the issue of plebiscite. Please be informed that in a letter addressed to the ICJ on April 15, 2000, this writer wrote to the ICJ on behalf of Bakassi people requesting for a plebiscite to be conducted in the area in dispute.  A copy of the letter was also addressed to the following:

a)      Agent of the Republic of Cameroon, Embassy of the Republic of Cameroon in the Hague, Amaliastraat 14, 2514 JC the Hague

b)      The Attorney General of Nigeria and Minister of Justice, c/o Agent of the  Federal Republic of Nigeria, Permanent Mission of Nigeria to the United Nations, 757 Third Avenue, 20^th Floor, New York, NY 10017, USA

Suffice it to say that the President of the ICJ Gilbert Guillame, who presided over the matter between Cameroon and Nigeria wrote back and on May 12, 2000 acknowledging receipt of the letter and stating that he understands that a comparable letter has been “sent to the Registrar of the Court who will not fail to answer you in the nearest future.” In a letter dated July 26, 2000, # 105986, the Registrar of the ICJ Mr. Philippe Couvreur, wrote back and cited Article 34, of the Statute of the International Court of Justice, “only States may be parties before the Court”. Though not informed, it is trite that a copy of the response was also sent to the governments of Nigeria and the Cameroons. Thus, even though the initial letter asking for a plebiscite did not gain traction within the ICJ, the ICJ and the State parties to the jurisdiction were made aware of the issue of plebiscite in 2000, two years before the entry of the decision. Therefore, if Nigeria with her $500 million dollars legal war chest did not raise the issue of plebiscite during the litigation, it is laughable for Alobo to talk about plebiscite almost fourteen years after the entry of final judgment, thus: “Plebiscite must be organized for them, to decide whether they want to go with Cameroon, or remain with Nigeria.” Where was Alobo before the decision was entered in 2002?

On page 49 of his paper, Alobo goes on further to compound his error “Although a Plebiscite may not reverse the decision of the ICJ on sovereignty over Bakassi, it will help to facilitate the protection and resettlement of Bakassi people.”  It is befuddling for a trained lawyer of Alobo’s status not to detect the incongruousness of his recommendation. Is the ICJ judgment final? Yes. Was there room for an appeal when all the issues now raised by Alobo would have been brought up? Yes. How long was the time to appeal before the ICJ could become final and binding? TEN years. Did Nigeria make any attempt to appeal the judgment? NO. Did Nigeria take any steps to execute the judgment? YES. On what legal platform could a lawyer argue for a revisit of a judgment that is final and has been consummated? The absurdity displayed by Alobo is frightening. He states above that “Although a Plebiscite may not reverse the decision of the ICJ on sovereignty….” Excuse me, what is the motive behind the call for a plebiscite in another sovereign country if, according to you, it “may not reverse the decision of the ICJ on sovereignty….”? Under what law known to man can a sovereign country call for a plebiscite in another sovereign country? Cameroon has sovereignty over the Bakassi Peninsula.  Territorial sovereignty, in this instance, confers on Cameroon the exclusive rights to display the activities of the State within her borders. Territorial sovereignty also means that Nigeria cannot under International Law and norms interfere in the activities of the Cameroonian State within its borders. Is there something that Alobo does not understand here?

Self-determination versus territorial integrity

By page 34, Alobo decides to get into the gravamen of his argument on self determination. He asks that Nigeria lead the push for this self-determination. Alobo forgets that a State must protect the rights of other States within its own territory and may not lawfully use its own territory as a base of operations designed to injure neighboring states. Would a self determination thrust conducted by Nigeria injure the interest of Cameroon? It is hereby conceded that national self determination tends to challenge the principles of territorial integrity (or sovereignty) of states as it is the will of a people as exhibited in a plebiscite or referendum that makes a state legitimate. Can a push for self determination be legitimately led by a neighboring sovereign state or by the indigenes of the locality so affected?

In the matter of Bakassi, there are no Bakassi people but Efik People[4]. Thus, in other to push for self-determination, the Efik Nation must be the one asserting such a right and not the people living on Bakassi. It must further be submitted that there is a realist theory of international relations that insists that territorial sovereignty is more important than national self-determination[5]. The reality in the Bakassi imbroglio is that not only has the ICJ moved the boundaries of Cameroon westwards from the Rio de Rey to the Akpayafe River, but Nigeria’s own Supreme Court based on a map submitted by the Nigeria Boundary Commission[6], in her judgment in the case: A-G, CROSS RIVER STATE V. A-G, FEDERATION & 1 OR [SC 250/2009] has also moved the boundaries of Akwa Ibom State from the banks of Oron to the Akpayafe River. The ratio decidendi of the Nigerian Supreme Court reads:

“Akwa Ibom State has a 128Km coastal stretch all having contiguity and connectivity with the sea on the Gulf of Guinea. Cross River State on the other hand has no coastal area having contiguity with the sea.  The estuary entering Cross River leaves the State helmed in and land locked without any contiguity to the sea. That being the case, Cross River’s connectivity, rather than contiguity, to the sea crosses maritime territory of Akwa Ibom State and Cameroon, thereby wiping off any claim to offshore oil wells”.

Compare the ratio of Nigeria’s Supreme Court above to what the International Maritime Law states:

Article 4 of the Convention of the Territorial Sea and Contiguous Zone Chapter 4 provides:

1.  In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from the breadth of the territorial sea is measured.

2. The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea lying within the lines must be closely lined to the land domain to be subject to the regime of international waters. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State.

I further submit that Akwa Ibom State does not have any maritime boundary with the Republic of Cameroon and that was the main reason the Nigerian state quickly entered a judgment without waiting for the maritime boundary between Nigeria and the Republic of Cameroun to be determined as per the ‘mandate’ of the UN Security Council. This is an act of bad faith by Nigeria and further example of her refusal to comply with a UN mandate. What is the meaning of the words ‘connectivity’ and ‘contiguity’ and which ‘sea’ is the Nigerian Supreme Court talking about? Is there a body of water between Bakassi Peninsula and Akwa Ibom State? Does the Atlantic Ocean wash directly on the shores of Cross River State? What this tells us Efik People is that our future is NOT in Nigeria. We joined Nigeria with territories starting from the present Abia State seawards to the banks of the Atlantic Ocean; the judgment rendering us landlocked is a handshake that has extended beyond the elbow. So, it is not Bakassi indigenes that would be looking for self determination, it is the Efik Nation that will. Assuming that the Efik Nation moves out of Nigeria, where would her seaward boundary be? Would it be based on the fraud perpetrated by the Nigerian State or what International Law says? Allen Buchanan a renowned author and international law experts supports the “Remedial Rights Only Theory” where a group has "a general right to secede if and only if it has suffered certain injustices, for which secession is the appropriate remedy of last resort."

Donald Duke and his 76 oil wells

Alobo visits the fallout of the loss of Bakassi to the economy of Cross River State and asserts that:

“The Cross River State government was initially insouciant, due to federal pressure and dominance, until the economic consequence of the ICJ’s judgment became apparent. The Revenue Mobilization, Fiscal and Allocation Commission [RMFAC] in first quarter of 2009, stripped Cross River of oil producing status.”

Please be it known to all and sundry that at no point in time did the Efik Nation confer rights or abdicate her rights to Mr. Donald Duke to cede our access to the Atlantic Ocean to Akwa Ibom State. Neither were we ever consulted over a political decision / trade off, that took place within the People’s Democratic Party of Nigeria. Such an agreement also does not satisfy the legal maxim of nemo dat quod non habet. Assuming but not conceding that James Town and Tom Schott’s Island had been politically administered in Oron Division since the breakdown of the colonial provincial system, did the cession of the two islands in any way or form, constitute cession of the Cross River Estuary? What political, economic, religious or social activity has Akwa Ibom State ever performed in/on the Cross River Estuary? Is there a way any neutral maritime draughtsman would draw a line from any point on these two islands that would prevent the three archipelagic islands of Kwa, and Dayspring 1 and 11, from having direct access to the Atlantic Ocean? What and how does the Nigerian Supreme Court define “connectivity with the sea?” Which sea are they referring to? I further submit to Alobo and Nigeria that we Efik People that occupy the maritime chunk of Cross River State could care less about oil fields, but we would die if you deny us access to the Atlantic Ocean. We came into Nigeria with our access to the sea, and if Nigeria does not want us anymore, we plead that we be allowed to leave…with it. International Maritime Law confirms that though our islands are located inwards. Straight lines are normally drawn directly outwards towards the open sea. It is one thing to proclaim that Cross River State is not entitled to 76 oil wells, it is quite another to state that Cross River State is a non-littoral state. Our first port of call is the forthcoming national conference; we want our access to the sea back, Nigeria and Akwa Ibom State can keep her 76 oil wells and Nigerians should be aware that there is a limit to human endurance.

Conclusion

In conclusion, based on the content of his paper and this writer’s assertions, it is obvious that Eni Eja Alobo lacks a clear understanding of the issues of Efik Nation as they relate to Bakassi or International Law. His paper appears to have been written to impress his audience and not designed to usher in any viable change or suggestions.  In the present situation Efik people find themselves; we do not want do-gooders who do not understand the law to mislead our people. Nigeria lost Bakassi, the Efik did not, and if, and when, we embark on self-determination, it will be the Efik Nation rising to demand our rights, not the Efik people resident in Bakassi only. The Bakassi Peninsula is still located between the Rio del Rey and Akpayafe Rivers. It has not moved.

In this writer’s opinion, it is a tragicomedy that members of the law class of 1978 sat through the reading of Alobo’s 53 - page paper and no single one of them had the presence of mind and the kindness to tell Professor Eni Eja Alobo, that Nigeria is estoppeled from bringing up the matter of retrieval of Bakassi, as it is time-barred.

Mtscheeew…