By Chris Oti, Esq
ABSTRACT
It is not in doubt that every nation has its own issues and challenges, but what is important and is a show of good leadership and respect to peoples’ voice and right is in how they are resolved. Nigeria, historically, is a marriage of different tribes that had distinct culture, beliefs, language and leadership, but were mainly compelled for the larger good of Britain to be amalgamated in 1914. It is this compulsion leading to the formation of Nigeria that is the bane of the current insecurity and secessionist agitations in the country, which is rather heightened at this time, hence the unhappy union.
At the root for the call for secession, is the right to self determination of a nation or a people. The right to self-determination is that collective right of a people to govern themselves in line with their own sovereign rules. This right to self-determination is rightly contained in many international instruments like, the United Nations Charter and the African Charter on Human and Peoples’ Rights, and has been affirmed by the International Court of Justice.
The 1999 Nigeria Constitution (as amended) provides that the country is one indissoluble and indivisible sovereign nation[1]. However, this indivisible and indissoluble phenomenon has been trounced with threats of collapse since the civil war in 1966 when the declaration of Biafra was made[2]. It is for so many reasons canvassed by secessionists; that they have been marginalized and not given control to some of their resources. Prominent among these groups are the Indigenous People of Biafra (IPOB), MASSOB, Niger Delta Avengers, The Oduduwa Republic group, Arewa group, and most recently the Sunday Igboho group calling for a declaration of a Yoruba nation.
It is in the light of the foregoing that this author will contend that the legal framework of Nigeria should be renegotiated considering the right of a people to govern themselves, and for a true nation to emerge. It is further contended that those who lawfully clamour for their right to self-determination should at best be brought to the metaphorical round table for dialogue, instead of an unrestrained show of force in the guise of protecting the sovereignty of the country.
Key Words: Union, Renegotiating, Legal Framework, Insecurity, Secessionist, Agitation
INTRODUCTION
Historically, Nigeria became an independent country in 1960, but it was evident that there were varying ethnic interests and loyalty that eventually led to the first coup in 1966 and was further followed by the civil war between 1967 to 1970. It is imperative to state that the end of the civil war was not as a result of peaceful and amicable settlement, but because the Biafra secessionist surrendered to the Nigeria army. Consequently, the disunity and grievances that was not reconciled and sorted out persists today in the form of secession agitations.
The legal framework of Nigeria is first birthed in the constitution, and has been proclaimed in the preamble to be the will of the people, but the average Nigerian can attest otherwise. The constitution recognizes the unity of all concerned entities and is emphatically silent on secession but identifies the means to the creation of states within the country[3]. As it stands, International law does not have any apparatus or tool with which to sit over the liquidation of an independent state. Secession is not a right under international law but it is equally not prohibited, thus, it maintains legal neutrality, making secession not so much of matter of law but fact based on the capability (politics) of its purveyors[4].
It must be emphasized that the rising vices in the country including varying acts of violence and insecurity reflects some people’s reaction to perceived injustice, leadership failure, segregation and marginalization. It can be concluded that the failure of the present legal framework of Nigeria, having not made provision for secession of any kind, would continue to raise the various secession agitations in the country, as such the need for a renegotiation of the legal framework is pertinent.
RENEGOTIATING NIGERIA’S LEGAL FRAMEWORK
We have already established here that, the constitution is the legal framework of Nigeria as it is the source where other laws find their root, and with the various grievances of different groups left unaddressed, the spate of insecurity and secessionist agitations would increase. However, it is contended here further that secession need not be external as it can take an internal shape. It therefore depends on the agreements that may be reached if those at the helm of the affairs of the country can indeed renegotiate with the various groups involved.
But how can this renegotiation be? It is posited here that the way a sector of the country is being treated as more important than other parts should not be the mindset that should be employed in the negotiation table. The fact that there is a need for renegotiation, suggests that there is a supposed contract, which may help guide how a negotiation will take shape.
It is canvassed however that, the issue of renegotiating the fulcrum of the constitution brings to mind the arguments from several sectors whether what is intended is an amendment or a contracting/making of a new constitution. It is the opinion of this writer that any renegotiation of the constitution as the legal framework of Nigeria should be a making of a new constitution as no amendment can seriously assuage the ill-feelings and grievances of the people. The truth remains that it can be likened to a torn cloth which has been stitched repeatedly, but each time, it is only good for the time being but it cannot go back to being a new one. It therefore reduces in value, calling for a new one.
The Nigeria constitution cannot indeed be deemed as the people’s own despite the wordings of the preamble, or the little consultation which the then military government took in handing the 1999 constitution to the country. Nigerians need to be involved in the contractual terms that would guide them to better cover the necessary fields left bare by the present constitution.
In law, parties are at liberty to mutually agree, orally or in writing, to dissolve, annul, add to, subtract from, vary, or qualify former agreements and therefore enter into a new one[5]. In Wayne v. Ekwunife[6], the Supreme Court held as follows:
“Now it has not been disputed that parties to a contract may effect a variation of the contract by modifying or altering its terms mutual agreement…. In such cases, mutual abandonment of the existing rights of the parties under the agreement as distinct from forbearance to suit, is sufficient consideration.”
It is therefore necessary to state that there are issues beneath the insecurities and secessionist agitations, which can be described as triggering events that must be addressed in the light of the current legal framework of the country to foster a happy union. Therefore, it is imperative that we take a look at some aspects of the current constitution that urgently needs to be renegotiated which would lead to the placating of the agitations of the various groups.
POSSIBLE CONSTITUTIONAL RENEGOTIATING POINTS
At the outset, it should be stated that the idea and character of the federal government of Nigeria as presently constituted to treat some persons from other parts of the country who are clearly perpetuating varying acts of insecurities and label them as bandits, whilst ascribing and proclaiming secessionist from the south-eastern parts of the country as terrorists is a most unfortunate triggering situation. It is recommended that dialogue remains the key in reaching a serious renegotiation. Although, agitations around Biafra have drowned out other separatist agitations, giving the wrong impression that Biafra is the only separatist threat in the country[7]. The truth is that there are separatist agitations in virtually every area in the country-underlying the fact that the foundation for Nigeria’s nationhood remains on shaky ground[8]. The following are in this writer’s opinion, the different negotiating points that need be processed legally and can be seen as the way forward to curb or sizeably reduce the spate of insecurity and secessionist agitations in the country.
- Power Sharing
The first issue for renegotiation is in the method of selecting who leads the country, and understandably so, it is one major cause for the insecurities and secessionist agitations in the country. The banter on who becomes the president of the country is a huge national discourse as such a time as this, particularly when the different tribes gets the sense of marginalization when a leader from their extraction is not the president. It will be helpful to institutionalize or codify the existing conventional system of power sharing and rotating the presidency between the different groups or within the south and north of the country[9]. Federal Character Commission (FCC), an agency created in 1996 to ensure fairness in the distribution of jobs and socio-economic amenities among different parts of the country, would help build trust among groups. Making it a mandatory requirement that certain federal appointments and distribution of infrastructure must have the imprimatur of the agency will reduce the suspicion that the ethnic group in power will privilege its in-group and disadvantage others.[10]
- Referendum Clause
According to Merriam Webster Dictionary, a referendum is an event in which the people of a country, state, e.t.c., vote for or against a law that deals with s specific issue: a public vote on issue. Referendum provides an opportunity for the different tribes in the country to discuss on their issues or views nationally. It shows the strength of support the leaders of the group have been able to garner to back their position from the people. Following from this idea, perhaps Nigeria should consider a constitutional provision allowing for a referendum among nationalities that want to secede from the union, say, once every 30 years. This will allow earnest conversations between the supporters and opponents of each separatist movement[11]. It may be argued that this may permit many groups to secede from the country, but the benefit remains that those who decide to stay will do so because they actually want to stay together and not as a result of brute force.
- Enforceability of Chapter Two of the 1999 Constitution
At first, it must be stated that it is a dismal position for the state obligation of government not to be enforceable as the present legal framework denote. Whereas, the tenor of section 13 of the constitution appears to be mandatory, it signifies no force in law. It provides that it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this chapter of this constitution. The chapter went on to encapsulate different security, economic, political, educational, social, cultural, environmental, and foreign policy objectives, but remains unenforceable.
It is contended here that this chapter of the constitution ought to be made enforceable, because, underlying the challenges of insecurity and secessionist agitations is the failure of the different governments to fulfill these fundamental objectives to the people. As such, this should form a vital basis for renegotiation of the legal framework to ensure the enforceability of these objectives.
- Total Fiscal Federalism
The position of federalism as it is presently practised in Nigeria does not in true sense give room for total fiscal federalism. The current situation where the states are being doled out funds by the Federal government essentially from revenue derived from many of these states is a major factor for the consistent fracas among the various groups. It is a known fact that many of these States contribute little to nothing to the federation revenue, but do take home a huge chunk from the revenue sharing. This does not breed trust among the groups, as there will be deep politics in the sharing formula, nonetheless the thirteen percent derivation formula. Take for instance, the many acts of violence from the Niger Delta region as it pertains to their call for better stake in the generated revenue from their region. There is no State that, do not have the capacity to produce and sustain itself if the region truly look inwards for the generation of internal revenue.
It is argued that the control of the minerals, mineral oils and natural gas in, under or upon any land in Nigeria, by the federal government is incompatible with the principle of true federalism, and the law that he who owns the land owns all that is found therein, and particularly as the Land Use Act which draws its present existence from the constitution had vests all lands in a state on the State government[12]. This issue needs to be renegotiated if the insecurities and secessionist agitations must abate; the constitution cannot give a right to the State government with one hand and withdraw same with the other.
It is this author’s suggestion that the States or regions should be allowed to invest and derive their own revenue and only give a set out percentage, say ten percent, to the Federal purse. That way, the people of the State and their leaders would have the deep drive to hugely invest in their region because they are aware that the fate of their region is entirely dependent on them and not on the handouts they are likely to receive from the federal government, even if they do not produce much. In the same vein, there must be a reduction of the powers of the central government and devolve same to the regions or State governments.
CONCLUSION
Arguably, at the centre of the many calls for secession by different groups is the fact that they are unhappy in this present constitution of Nigeria. As such, the leadership of the state must show a true sense of national building, by entrenching the rule of law, separation of powers and justice in the affairs of the nation. A lot of the citizens or regions feel left out in the play of things in the country; the cure would be for a holistic approach to the tinkering of the constitution or a making of a new one.
This work has only made an attempt to x-ray the root cause for the insecurities and secessionist agitations as being the need for the right to self-determination, and has provided pointers to how a renegotiation of the nation’s legal framework may likely take shape. There are of course other factors that may be necessary in the discourse such as the case for independent candidacy, exclusion of the traditional rulers/heads from the government control, independence of the judiciary, etc, but it is believed that the points made above can serve a great deal to assuage the ill-feelings of those engaged in violence as a way to make their voices known or heard by the government; and the secessionists would be in a good place to truly decide whether they want to remain in the country or otherwise.
[1] Section 2 [1999] Constitution of the Federal Republic of Nigeria
[2] O.W. Igwe; et al, The Right to Self Determination Under Contemporary International Law: The Case of Minority Groups In Nigeria, (2020) Seahi Publications, accessed at www.seahipaj.org., on 21/08/21.
[3] Olawale Ogunmodimu, The Ambiguity of Constitutional Silence on State Secession In Nigeria: Looking Beyond Politics of Compassion and Prejudice (2018) accessed at www.papers.ssrn.com. On 21/8/21
[4] Olawale Lawal, The Position of International Law on Secession and Secession and Self-Determination, (2021) accessed at www.vanguardngr.com., on 21/8/21
[5] E.J. Olorunmaiye, Renegotiation of Commercial Contracts, (2020) Sefton Fross, accessed at www.mondaq.com., on 22/8/21
[6] (1989) 3 N.S.C.C. 325
[7] Jideofor Adibe, Separatist agitations in Nigeria: Causes and trajectories (2017) accessed at www.brookings.edu., on 22/8/21
[8] Ibid
[9] Jideofor Adibe, Separatist agitations in Nigeria: The way forward (2017) accessed at www.brookings.edu., on 22/8/21
[10] Ibid
[11] ibid
[12] Section 44(3); 315(5) (1999) Constitution of the Federal Republic of Nigeria
