…the greatest argument against the current Biafran agitation is that the agitation is not coming from the constitutional governors of the Igbo state, who have rather taken a stand to condemn the movement. Thus, there are no grounds to ascertain that the Igbo people no longer wish to stay in the Nigerian nation. As such, there is no ground for asking the government to conduct a referendum nor for the other federating units to enter into dialogue with the Igbo nation.
The resuscitated agitation for a sovereign state of Biafra has taken a new dimension with the setting up of Radio Biafra and many other internet fora carrying on the struggle for the break-up of the Federal Republic of Nigeria. Unlike other initiatives directed towards achieving the same objective, the current attempt seems to have achieved greater notoriety and succeeded in galvanising certain segments of the Igbo community who feel victimised and alienated by the current arrangements in Nigeria into a renewed hope and zeal for the secession of Biafra from Nigeria.
We will in this piece give a brief account of the international law rules on self-determination applicable to this situation, especially on the subject of secession. We, however, quickly point out that oftentimes questions of international law cannot be divorced from international politics, and the behaviour of states on any question like self-determination may depend on their perceived state interest.
International Law and the Right of Self-Determination of Persons
Agitators for Biafra claim that they have a right of self-determination as indigenous peoples guaranteed by the United Nations Declaration on the Rights of Indigenous People.
They also assert that Biafra has a right to revert to the pre-1914 ethnic arrangements that existed in the territory currently called Nigeria and that Nigeria is an artificial entity created by the British for their own selfish interest. And that they should not be forced to co-habit with other groups in Nigeria who they claim hate and persecute them.
We will provide the response to these two assertions below.
First, international human rights law recognises the right of people to self-determination in articles 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, article 20 of the African Charter on Human and People’s Rights and a host of other regional human rights instruments and Resolutions and Declarations of the United Nations. For indigenous peoples this right is contained in article 3-5 of the Declaration on the Rights of Indigenous Peoples.
Self-determination refers to the legal right of peoples to decide their own destiny in the international order, that is, the right to determine for themselves how and by whom they wish to be governed. International law distinguishes between internal and external self-determination and stipulates the various situations in which either of these rights is applicable.
Internal self-determination is a right available to minority groups within a state for their protection. This right imposes an obligation on the state to give the minority groups the ability to speak their language, effectively participate in the political affairs of the country and to practice their culture in a meaningful way. This is the variety of self-determination available to people living within a validly constituted state which is not under colonial rule or subject to alien or foreign domination and subjugation.
External self-determination or secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane. States do not view secession favourably, even though the International Court of Justice in a recent decision (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo) held that there is no international law rule against declarations of independence.
…arguing from the perspective of indigenous people’s rights to self-determination, Biafrans can only successfully agitate for internal self-determination within the Nigerian nation and are not permitted to engage in any action that would dismember or impair, totally or in part, the territorial integrity or political unity of Nigeria.
In international law, the right to secession or external self-determination belongs to those under colonial rule, and alien or foreign domination and occupation. A third category of people entitled to self-determination could also be deduced from the Saving Clause of the 1970 Declaration on Friendly Relations, namely, those whose government is not composed of the entire peoples living on its territory and who could not exercise their right to self-determination within the parent state, because the state seriously violates their rights.
In the Canadian case of Re-Secession of Quebec, the Supreme Court of Canada held that “a right to external self-determination (which in this case particularly takes the form of the assertion of a right to unilateral secession) arises only in the MOST EXTREME CASES, and even then under carefully defined circumstances”.
It is in the light of this legal position that the Declaration on the Rights of Indigenous Peoples, while recognising the right of indigenous peoples to self-determination was explicit in showing that it was a right to internal self-determination, not secession. It reads in articles 4 and 5:
“Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State”.
It finally put this beyond doubt in article 46 where it provides that “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”
Therefore arguing from the perspective of indigenous people’s rights to self-determination, Biafrans can only successfully agitate for internal self-determination within the Nigerian nation and are not permitted to engage in any action that would dismember or impair, totally or in part, the territorial integrity or political unity of Nigeria.
They therefore must demonstrate credibly that Nigeria seriously violates the human rights of the Igbos and makes it impossible for the Igbos to exercise their right of internal self-determination and that there are no other effective remedies under municipal or international law apart from secession.
If we also look at it from the general right of peoples to self-determination, even though the Igbo nation will definitely qualify as a ‘people’, since they do not fall into the category of people under colonial rule or alien domination and occupation, they must needs prove that they belong to the third category of people that may under the ‘remedial rights only’ theory be entitled to secession.
They therefore must demonstrate credibly that Nigeria seriously violates the human rights of the Igbos and makes it impossible for the Igbos to exercise their right of internal self-determination and that there are no other effective remedies under municipal or international law apart from secession. In the light of the fact that the Igbo’s are represented in the Federal Government and are also given a right to govern themselves, it may be a really uphill task convincing the world that the agitation for secession is justified in international law.
Second, the argument that African states are artificial lumping together of diverse ethnic groups and that state borders were arbitrarily drawn up by the Colonial masters without paying heed to the wishes of the peoples being lumped together and therefore calling for a redrawing of the map of Africa to dismantle multi-ethnic states reflects what jurisprudence considers as the conflict between the ‘is’ and the ‘ought’, which we will not bother with in this brief exposition.
However, the current position of African regional law is couched in a concept referred to as “uti possidetis” which demands that colonial borders should be left undisturbed. The African Union and its predecessor the OAU adopted this position in article 4(b) of the Constitutive Act of the African Union and in AHG/RES 16(1) on BORDER DISPUTES AMONG AFRICAN STATES by the Assembly of Heads of State and Government at its first Ordinary Session held at Cairo, Egypt from the 17-21 July 1964.
This has also been reflected in the case law of the African Commission dealing with communications brought before it on the question of self-determination and secession, especially the question of Katangese secession from Zaire and the Southern Cameroon case of Kevin Mgwanga Gunme et al./Cameroon. In the Kevin Mgwanga Gunme case, the Commission held:
“The Commission states that secession is not the sole avenue open to Southern Cameroonians to exercise the right to self-determination. The African Charter cannot be invoked by a Complainant to threaten the sovereignty and territorial integrity of a State party… It is the view of the Commission, however that, in order for such violations to constitute the basis for the exercise of the right to self-determination under the African Charter, they must meet the test set out in the Katanga case, that is, there must be: “concrete evidence of violations of human rights to the point that the territorial integrity of the State Party should be called to question, coupled with the denial of the people, their right to participate in the government as guaranteed by Article 13.1.” … Going by the Katanga decision, the right to self-determination cannot be exercised, in the absence of proof of massive violation of human rights under the Charter. The Commission states that the various forms of governance or self-determination such as federalism, local government, unitarism, confederacy, and self-government can be exercised only subject to conformity with state sovereignty and territorial integrity of a State party”.
Very few countries have freely accepted the results of referendums on independence that have taken place and we can cite examples like the Soviet Union, Yugoslavia, and the Danish government. The first independence referendums were held in Texas, Tennessee and Virginia in 1861. Even though they all voted for secession, their wishes were not granted and rather resulted in the American Civil War.
In the Katangese Case, it held that “the commission is obligated to uphold the sovereignty and territorial integrity of Zaire, a member of the Organisation of African Unity and a party to the African Charter on Human and People’s Right. In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in government as guaranteed by article 13(1) of the African Charter on Human and People’s Right, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.”
This is why only two cases of secession have been successful in Africa, the case of the secession of Eritrea from Ethiopia (after about 30 years of war) and the secession of South Sudan from Sudan in 2011 (after about 22 years of war). The surrounding circumstances of protracted violence was a key factor that necessitated the exception. The initial attempt by Biafra to secede in 1967 was condemned by the Organisation for African Unity as detrimental to African interests, incompatible with the goal of African unity and that it would set a precedent that could lead to the further balkanisation of the continent. The organisation issued a Resolution at its fourth ordinary session in Kinshasa, Congo, from 11 to 14 September 1967 condemning secession in any member state, reaffirming its adherence to the principle of respect for the sovereignty and territorial integrity of member states and recognising that the war in Nigeria was an internal affair.
Before closing this section, we must also comment on the argument put forward that Nigeria must follow the example of Britain and conduct a referendum for Biafra to decide whether it should be a part of Nigeria or not, as well as the consistent reference to the self-determination claims in Catalonia as being a precedent that applies to the Biafran agitation.
First, in relation to these two situations, the most striking difference between Biafra and Scotland or Catalonia lies in their form of government. Scotland enjoyed autonomy and self-rule in their association with Britain, while Catalonia is an autonomous region. Biafra, on its own part is not even clearly defined and simply consists of disputed states which all have their different governors. Thus whereas the other two situations could easily articulate their stand, it is not feasible or possible in the Biafran situation.
Equally, one needs to be aware that the Scottish referendum was a result of a lengthy dialogue and negotiation between the British Government and the Scottish government resulting in what was called the Edinburgh agreement in which the two governments agreed to make an exception to the general ban on independence referendums. It was not the result of the Scottish government overawing the British government or bringing it to its knees to grant them a referendum.
That is why currently in Catalonia, the Spanish government has vowed to resist Catalonia’s intended forced and unilateral referendum for independence. You may also wish to note that the United Nations General Secretary has made the position of the UN clear on the Catalonian self-determination claim, stating that Catalonia is not on the UN’s list of non-self-governing territories, countries which the UN designated as places where people had not achieved self-government and are primarily colonial entities of the US, the UK and France.
Very few countries have freely accepted the results of referendums on independence that have taken place and we can cite examples like the Soviet Union, Yugoslavia, and the Danish government. The first independence referendums were held in Texas, Tennessee and Virginia in 1861. Even though they all voted for secession, their wishes were not granted and rather resulted in the American Civil War.
Constitutional Secession Under Municipal Law
In Re: Secession of Quebec, the Canadian Supreme Court examined the question of the possibility of secession under its municipal law and international law. Even though the Canadian Constitution is a confederal constitution, its arguments can be extended to the Biafran situation. It is also important to state that the decision of the Canadian Supreme Court is not binding on a sovereign state like Nigeria but its arguments may be persuasive, especially as it claims to be an exposition of the tenets of constitutional democracy.
It held that the constitution confers a right to initiate constitutional change on each participant in confederation and that this right imposes a corresponding duty on the participants in the confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions for change in other provinces.
It went further to hold that the exercise of popular sovereignty through a referendum or majority vote alone would not permit a secession as this would circumvent the constitutional provisions. But that the constitutional rules can be amended to permit secession only through a process of negotiation that will safeguard, respect and reconcile the constitutionally defined rights of all the parties.
It further stated that the corollary of a legitimate attempt by one participant in a confederation to seek an amendment to the constitution is an obligation on all parties to come to the negotiating table. It held that no negotiation would be effective if this ultimate outcome, secession, is cast as an absolute legal entitlement based upon an obligation to give effect to that act of secession in the constitution. Such a foregone conclusion would undermine the obligation to negotiate.
On the other hand, it also rejected the reverse proposition that a CLEAR expression of self-determination by the people would impose no obligation upon the other provinces and the federal government. It held that the continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of the clear majority of Quebecers that they no longer wish to remain in Canada, but everything must be done with due consideration to the right of others.
Even though the reasons advanced by the Court for holding that the Union was indissoluble and perpetual does not apply to the Nigerian situation, the American position serves to buttress the fact that the prerogative to allow or deny secession is that of the state and not its component parts. It is also this peculiar position of America that makes it wary about supporting secessionist claims.
Finally, it pointed out that refusal of a party to conduct negotiations in a manner consistent with constitutional principles and values would seriously put at risk the legitimacy of that party’s assertion of rights.
To juxtapose this with the American jurisprudence, the Supreme Court of Alaska held in Kohlhaas v. Alaska (147 P 3d 714 (2006) that a referendum on secession would be unconstitutional. The jurisprudence of the US Supreme Court simply stated that it is unconstitutional to break up the union.
In White v. Texas 74 US 700 (1868), the US Supreme Court had also held that Texas was not constitutionally permitted to hold an independence referendum. It stated:
“The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation… The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States”.
Even though the reasons advanced by the Court for holding that the Union was indissoluble and perpetual does not apply to the Nigerian situation, the American position serves to buttress the fact that the prerogative to allow or deny secession is that of the state and not its component parts. It is also this peculiar position of America that makes it wary about supporting secessionist claims. That was why in recognising the seceded state of Kosovo, it made it clear that Kosovo was a peculiar case and could not be taken as constituting a precedent.
Conclusion
In the Nigerian context, the Nigerian Constitution is unequivocal in its exclusion of the possibility of secession when it provides in its section 2(1) “Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria”.
However, as absolute as that section may seem, unlike the American Union, it does not rule out the idea of negotiations and lobbying between the component units in the federation for an amendment of its provisions. Thus, section 9 of the constitution in essence provides that for the provision making Nigeria indivisible and indissoluble to be amended, there is need for the support of not less than 2/3rd majority of all the members of that House of the National Assembly and approved by resolution of the House of Assembly of not less than 2/3rd of all the states. In other words, the Houses of Assembly of 24 states of the federation have to approve the amendment.
The difficulty in securing a unilateral secession or amendment of the constitution to permit secession, therefore further highlights the indispensability of dialogue and negotiations if there will ever be a change that will make secession possible. In this regard, the suggestions and call for the federating units to sit down and renegotiate the terms of their co-existence which led to the convoking of the National conference was a step in this direction.
The attempt by the agitators to “bring the zoo to the ground” or arm twist the government into granting its request neglects the essential requirement of negotiation for such a venture as secession. The virulent verbal attacks on other ethnic groups and religions constitute actions that can disrupt international peace and security. The war rhetoric fails the test of rationality and calls into question the motives of the agitators. The failure to strategise and seek the cooperation of the constitutionally recognised leaders of the Biafran states and other dissatisfied groups within the Nigerian state in order to achieve the required critical mass, smacks of conceit and arrogance.
However, the greatest argument against the current Biafran agitation is that the agitation is not coming from the constitutional governors of the Igbo state, who have rather taken a stand to condemn the movement. Thus, there are no grounds to ascertain that the Igbo people no longer wish to stay in the Nigerian nation. As such, there is no ground for asking the government to conduct a referendum nor for the other federating units to enter into dialogue with the Igbo nation.
The attempt by the agitators to “bring the zoo to the ground” or arm twist the government into granting its request neglects the essential requirement of negotiation for such a venture as secession. The virulent verbal attacks on other ethnic groups and religions constitute actions that can disrupt international peace and security. The war rhetoric fails the test of rationality and calls into question the motives of the agitators. The failure to strategise and seek the cooperation of the constitutionally recognised leaders of the Biafran states and other dissatisfied groups within the Nigerian state in order to achieve the required critical mass, smacks of conceit and arrogance. The advocacy of a doctrine of Igbo Superiority over other tribes is, according to the dictates of rationality and the United Nations Declaration on the Rights of Indigenous Peoples, racist, scientifically false, legally invalid, morally condemnable and socially unjust. Whatever advancements the Igbos have made is due to personal self-development and other tribes also have great things to boast of.
I reiterate my earlier position that one of the dangers of this current agitation is the number of Igbo youths that are daily being indoctrinated into a desensitised, radicalised, intolerant, unquestioning and absolutely heartless subhuman specie. The nature of the indoctrination going on, can only produce terror networks who see those who disagree with them as animals who do not deserve to live and who should be eliminated so they can achieve their own paradise. Instead of realising that in the competitive contemporary global village, the key to success and relevance is self-development and mastery and that the days of the local champion are fast fading away, unfortunately our youths are being taught that their failure is because of their enemies from other tribes.
The idea of Biafra which encompasses the Igbo state and some of their neighbours is at present a nebulous one. It is imperative that the agitators rather than levying war against the Nigerian state or verbally attacking all other ethnic groups and races, should rather re-strategise and seek for a rapproachment with such groups that will benefit humanity and the Igbo People.
Without denying that the Igbos have experienced some injustices in the Nigerian State and great misunderstanding about their go-getter attitude, we still insist that even if the right to secession was available under the law, it would still not be the most viable solution. The Igbos must employ their native resilience and ingenuity to find a solution within the Nigerian state.
In the light of international customary and treaty law and state practice, it is apparent that “Biafra” just like Catalonia does not have a non-self-governing status and thus is only entitled to internal self-determination. The idea of Biafra which encompasses the Igbo state and some of their neighbours is at present a nebulous one. It is imperative that the agitators rather than levying war against the Nigerian state or verbally attacking all other ethnic groups and races, should rather re-strategise and seek for a rapproachment with such groups that will benefit humanity and the Igbo People.
Nonso Robert Attoh is a law lecturer in the Faculty of Law, University of Nigeria, Nsukka, Enugu State.
