Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Sustaining Nigeria's indivisibility as a nation-state 12 Oct 2017

President Muhammadu Buhari at 72nd UNGA meeting
Nigerian President Muhammadu Buhari delivering his speech at the 72nd United Nations General Assembly in New York

Forty-seven years after the end of the Nigerian Civil War, the country faces renewed secessionist agitations in the South-East. The loss of lives and property and general unrest in the region are quite distressing. Some would argue that the violence and loss of lives are attributable to a tactless response by the government. There are counter-arguments, which justify government's response, given the threat to Nigeria's territorial integrity.
The government's response has been that Nigeria is indivisible. I suspect most Nigerians from the South-East are in lockstep with the government on the idea of “one Nigeria.” But the debate over the agitation for self-determination by the Indigenous People of Biafra (IPOB) has several dimensions. These include the question of the person and character of the self-professed leader of IPOB, Nnamdi Kanu; the allegations of marginalization of the South-East region; the legality or otherwise of the recent declaration of the group by the Nigerian Army and the Federal High Court as a terrorist organization; among others. There is no doubt that these are issues we must find broadly agreeable and long-lasting solutions to.

However, before we find these solutions, we need to ask some fundamental questions. For instance, what constitutes our indivisibility as a nation? How sustainable is this indivisibility? What must we do to secure the lives and property of all citizens of the country, including those in the constituents that gave only '5%' of the votes that ushered in this administration?

Most clamours for secession seek their legitimacy from the right to self-determination enshrined in international law. However, the prevailing view seems to be that the international treaties, which provide for this right, were not meant to be used as a tool for secessionist groups. Rather, they were designed as legal backing for decolonization.  

Article 1(2) of the United Nations Charter of 1945 states that part of the mission of the United Nations is: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…” Article 1 of the International Covenant on Civil and Political Rights (ICCPR) of 1966 also provides for the right to self-determination by which people can “freely determine their political status and freely pursue their economic, social and cultural development.” The International Covenant of Economic, Social and Civil Rights (ICESCR) of 1966 contains the same provisions. Nigeria has ratified all these covenants.

As stated previously, the international law community leans towards a restricted interpretation of the right to self-determination under these instruments. This interpretation favours people under foreign domination, not those in sovereign, independent states.

Moreover, the only form of self-determination within a nation-state generally accepted is internal self-determination, which is basically for the protection of minority groups within a state. This is achieved by imposing an obligation on the state to protect their rights “in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” (Article 27 of the ICCPR).

For example, the Supreme Court of Canada, in a landmark judgment in 1998 on the legality of the secession attempts of Quebec, held that: “The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states.” The court also held that: “A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.”

Back home on the continent, the African Charter on Human and Peoples' Rights, which Nigeria has ratified by enacting a Ratification and Enforcement Act, states in the first clause of Article 20: “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.” The remaining two clauses of Article 20 would seem to suggest a definition of self-determination limited to foreign subjugation. Clause 2 states: “Colonised or oppressed people shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.” Meanwhile clause 3 states: “All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.”

This outlook for self-determination is strengthened by the fact that the Constitutions of most countries are either silent on, or completely forbid, secession. Ethiopia is the only country I have found so far in my research on this issue that has a provision for unilateral regional secession.

Section 2(1) of the Nigerian Constitution states that: “Nigeria is one indivisible and indissoluble Sovereign State.” It is, therefore, a statement of law (as it stands today) that Nigeria is indivisible. This sense of constitutional finality over our indivisibility is, however, not carried over into reality. Instead, we have a group of people from a region of the country who are agitating for secession and a government that is enforcing our constitutional unity using the military.

The choice of a group of people to withdraw from a nation-state would sometimes be considered. Therefore, countries and indeed the international community must re-think the stance of absolute restriction. From pro-Biafra groups in Nigeria, to Scotland in the United Kingdom, Catalonia in Spain, and Quebec in Canada, it is obviously not working. It is time to begin a conversation on recognizing this right and then setting the conditions upon which it can be triggered. Agitators would be required to follow established guidelines, while protecting the sovereignty of the nation-state.

International influence can be wielded on how or whether to recognize seceding states. But we should begin to create a legitimate process whereby people or regions, which seek to exercise this right would not be restricted. This would greatly reduce secessionist conflicts, thereby saving lives. It will also provide a good mechanism for weeding out rabble rousers, terrorists and their sponsors, looking to sway young people who have become gullible due to lack of proper education, unemployment or bigotry. There would be no need for violence where there is a legitimate process – internationally recognized – to achieve their goals peacefully.

Prof. Jason Sorens, lecturer in the department of government and Program Director of the Political Economy Project at Dartmouth College, Hanover, New Hampshire in the United States of America, has argued in his book: “Secessionism: Identity, Interest and Strategy,” stating that “governments that have tolerated secession like Britain, Canada, Denmark and Belgium have suffered less secessionist conflict than governments that do not tolerate secession.”

Despite the Supreme Court of Canada's stance on the illegality of the secession of Quebec, the court went further to say that if a referendum in favour of secession was carried out, the rest of Canada would have an obligation to negotiate constitutional changes with the Quebec government to respond to the Quebecois desire to secede. According to the court, neither the federal government, nor the other provincial governments, would have a basis to deny the right of the government of Quebec to pursue secession. Two provincial referendums had previously held in 1980 and 1995. Majority of the voting public rejected the idea of separation.

Different countries have different forms of government they operate. They also have different ethnic, cultural and political peculiarities. It is, therefore, impractical for one country to adapt another's position on issues, including secession.

So, while I am not calling for a constitutional amendment that would allow unilateral regional secession, I do believe there is a lot of wisdom in creating a recognizable process for addressing the disaffection of a region within the country. Apart from dialogue, the process could lead to a constitutional referendum. From the experience of other countries, secessionists don't always win the referendum in well-functioning States. But the referendum tends to lay to rest the agitation. Uncertainties about progress in a new state would tend to outweigh the issues with remaining in the existing state. A constitutional pathway to secession could also make the country take existing nation-building frameworks more seriously.

A Financial Nigeria columnist, Funmilayo Odude is a Lagos-based legal practitioner, and a public affairs analyst.