This article was written when the Bakassi Peninsula was being handed over to Cameroon. The aim was to put the historical facts straight that Nigeria has no claim to the disputed Bakassi Peninsula and to corroborate the Resolution of the ICJ that justice was fairly served.
Three major issues compelled me to start this essay. First, Nigeria is the most populous country in Africa and one of the emerging democracies, and one of the characteristics of any democratic system is adherence to the rule of law at the municipal level and obedience to and respect for the decisions of the International Court of Justice (ICJ) at the global level. Secondly, the Bakassi dispute predates Nigeria’s independence and most people have not painstakingly traced the historical roots of the conflict. Such people who are confined to the present may be vulnerable to contemporary illusion. This class of people is made up of dangerous agitators who are capable of dragging Nigeria into needless confrontation with her neighbours and as such create opportunity for internal insurrection as is becoming evident in recent times. The interminable crisis between India and Pakistan over Kashmir, the crisis in Chechnya, and the Azebaijan-Armenian dispute over Nagorno-Karabakh are just few examples. Thirdly, in international relations all nations irrespective of their sizes, power or natural endowments are equal. Ipso facto, Nigerians seem to be overplaying the Bakassi issue, sometimes reducing it to raw politics thereby negating the concentric circle theory, which has guided Nigeria’s diplomacy in Africa and provided a major plank for the stability of the nation over the years.
In September 2002, President Olusegun Obasanjo of Nigeria and Paul Biya of Cameroon met in Paris and agreed to uphold the ruling of the ICJ. On October 10, 2002, the ICJ awarded the Bakassi Peninsula to Cameroon based on the 1913 Anglo-German agreement and the Thomson Marchand Declaration of 1929-1930. After meditating on the issue for about 14 days, President Obasanjo rejected the rulings on the ground that the ICJ did not take into cognizance the rich Nigerian history in the Bakassi Peninsula and the fact that Nigeria would lose access to her naval bases in the Atlantic Ocean. He also rejected it for selfish reasons namely: the fear that Nigerians would vote him out in the April 2003 General Elections. Now let us turn to the historical roots of the “Bakassi palaver”.
Historically speaking the area popularly called “Bakassi Peninsula” came under British protection on September 10, 1884. Following the Berlin conference of 1885, Britain and Germany defined their territorial spheres of influence in Africa in November 15, 1893. When the two installments of amalgamation were proclaimed in Nigeria in 1906 and 1914, the Bakassi Peninsula subsumed under the frontiers of Southern Cameroon. Then the London Treaty of March 11 1913 established clear-cut regulations on navigation on the Cross River. The end of World war I brought Bakassi under British Cameroon. During the interwar years, the Franco British Declaration of July 10, 1919 Bakassi and what became known as British Cameroon’s were placed under British mandate and were administered conterminously with Nigeria. In 1946 following the end of World War II Britain divided the Cameroon’s into Northern Cameroon and Southern Cameroon.
Although Southern Cameroon was distinct from the Eastern Region and the Calabar Province, the United Nations requested the Trusteeship council to clarify the geography of Cameroon. Thus when Nigeria attained independence on October 1, 1960, Bakassi, was clearly under Cameroon. On February 11 th and 12 th 1961, a plebiscite was held to clarify the wishes of the people of Cameroon. The results of the plebiscite indicated that a preponderant population of the Cameroonians voted to join Northern Cameroon. Thus from the Tafawa Balewa administration through General Aguiyi Ironsi to the end of the Nigeria Civil War Bakassi was administered as part of Cameroon.
However, the colonial masters did not clarify the maritime boundaries and the navigable portion of the Calabar estuary. The then Attorney General Taslim Elias, who later became President of the World Court, advised the Gowon administration based on the post-colonial agreements, Nigeria had no legal basis for contesting the Bakassi Peninsula. But the technicality as per the Anglo-German Treaty of 1913, did not clearly define the navigable portion of the waters. The status of Bakassi never came up as an issue. There is however a popular version that when the civil war was intensified, the Federal government of Gowon reached an agreement with President Ahmadu Ahidjo of Cameroon requesting the latter to close the maritime borders where the Biafran soldiers obtained their supplies. That was the economic blockade that ended the war. In return, on June 1 st 1975, Gowon and Ahidjo signed the Maroua Declaration for the extension of the 1971 maritime boundary.
When Murtala Mahammed overthrew the government of Gowon on July 29, 1975, he tried to smear Gowon’s reputation and discredited his foreign policy. He accused Gowon of giving out Bakassi cheaply to Cameroon thereby discrediting Gowon’s foreign policy in the African continent; even though Nigerian official maps from the period showed Bakassi in Cameroon’s territorial. However, successive administration in Nigeria did not muster up the political will to resolve the crisis until it snowballed into a conflict that attracted world attention.
On October 10, 2002, the International Court of Justice at the Hague ceded to Cameroon the Bakassi Peninsula, whose ownership has been disputed for upwards of three decades. Initially, the Obasanjo administration rejected the ICJ resolution, but this only led to tension and arms buildup in the area. The mounting interest of the two countries in the Peninsula is attributable to two reasons. First is the huge oil deposit in the area. Second is the strategic importance of the area in the Atlantic Ocean. In addition, the prolific fishing grounds also provided an additional attraction to the peninsula.
The October 10, 2002 judgment was based on historical facts but Nigeria claimed that the judgment did not take cognizance of the right of traditional Chiefs and people as the true owners of the land. Based on this grandstanding, the Nigerian media clamed that about 90% of the inhabitants of Bakassi were Nigerians of the Efik ethnic nationality.
The basic thesis of this essay is that the Nigeria-Cameroon face-off over the Bakassi would not have been if crude oil was not discovered in the Peninsula. For several decades neither Nigeria nor Cameroon showed interest in the area. The people who inhabited the area lived in abject lack, destitution and unimaginable squalor. The contenders only became interested when the liquid gold was found. The underpinning factors in the Bakassi imbroglio are the rich oil reserves and prolific fishing grounds in the Atlantic Ocean. So the Bakassi peninsula crisis is precipitated by the capitalists’ hegemons whose aim is to appropriate and corporatize the commonwealth and sentence the mass of humanity to absolute poverty and misery.
In recent times, the International Court of Justice (ICJ) has dealt with many disputes of State responsibility for illegal occupation. Basically, territorial disputes are usually submitted to the ICJ by special agreements. However, the Republic of Cameroon instituted a case against Nigeria asking the Court to determine that Nigeria, by illegally occupying the Bakassi Peninsula and the Lake Chad area, had incurred State responsibility and had an obligation to provide reparation including pecuniary compensation.
Cameroon in addition to requesting Nigeria to repair the military equipment destroyed during military actions, wanted Nigeria to pay for the collateral damage of physical infrastructure and profits due to the abandonment of economic activities related to oil and fisheries.
In paragraph 316, the ICJ decided to put aside Cameroon’s claims of reparation but handed down a standard declaratory judgment, followed by an order that Nigeria should withdraw from the Peninsula. In the opinion of the ICJ, Nigeria’s withdrawal was enough remedy for whatever injury that might have been caused as a result of the military incursion. Both the Geneva Convention and International humanitarian law provides copiously for such special rules of State responsibility.
The Bakassi border dispute was rendered more complex by the fact that both Nigeria and Cameroon traded accusations for being aggressors. Nigeria should accept the ICJ Resolution since one of the bastions of Nigeria’s foreign policy is to promote friendly relations among member nations and maintain International peace and Security.
President Obasanjo should not be crucified because the National Assembly did not duly endorse the ICJ resolution. While it is necessary for the President to seek the consent of the NASS, the President might have been advised by his legal luminaries that the Geneva Regime as encapsulated in the corpus of International Law is superior to the municipal laws of any member nation of the United Nations.
The President of Nigeria epitomizes the integrity and Sovereignty of the State. Nigeria is not a pariah nation but an indispensable member of the international community and as such Nigeria is obliged to respect and abide by the opinion of the ICJ. The boundary dispute at issue is not an electoral process which can be manipulated by the NASS and INEC. International Protocol and modern diplomatic practice demand that Nigeria subscribes to the decisions of the ICJ and this is not negotiable.
An objective examination of the Nigeria – Cameroon imbroglio at the Bakassi Peninsula reveals three main positions:
• The Bakassi problem was a creation of the imperialists, colonialists and capitalists who for selfish reasons placed the map of Africa on a table and butchered the continent for their own economic interest. The same imperialists have intensified the conflict between Nigeria and Cameroon.
• The real issues in contention are economic and strategic. The Peninsula only became attractive when huge oil reserves were found. Again the prolific fishing grounds in the Peninsula and its strategic location at the Atlantic Ocean is another added advantage.
• There are many Nigerian émigrés in the Peninsular. In fact it is estimated that 90 percent of the inhabitants of Bakassi are Nigerians of Efik extraction. Most Nigerians in the area are either traders, or fishermen who seek greener pastures and better means of livelihood. But the Maroua Declaration signed by Gowon and Ahidjo was to compensate Cameroon for her neutrality during the 30-month civil war in Nigeria.
The illegal acquisition of territories has been a source of grave concern in the world. This is more so because every State maintain its territorial Sovereignty, which is one the legal attributes of statehood under international Law. Some analysts may be tempted to embark in some jurisprudential elaboration on the consequences of violating the territorial sovereignty of another State.
It should be noted that all across time and space, the violation of the territorial integrity of a State has been a major cause of wars (casus belli). From the findings of the ICJ, Nigeria might have forcibly occupied the territory in negation of the rules of jus ad bellum, and by implication Nigeria has prima facie responsibility to abide by the resolutions handed down thereto. An analogy that readily comes to mind is the “Corfu Channel case,” in which the content of due diligence obligations and the responsibility incurred by the States for breach of such obligations was determined. The ICJ admitted that Nigeria crossed the threshold of international responsibility by occupying territory beyond the uti possidetis line. Nigeria’s submission took due cognizance of the uti possidetis according to the 1913 Treaty and in 1961 and it continued to negotiate its maritime boundary with Cameroon under that assumption.
Another strand of the argument is that albeit the people of Old Calabar claimed that their rights had been encroached upon, the Nigerian Government’s inaction since 1961 and until the Marouoa Declaration invariably conferred the title of ownership of Bakassi to Cameroon. From the elaborate literature on the matter, the ICJ might have taken due cognizance of its broader role within the United Nations system with a view to resolving disputes through mediation, negotiation, arbitration and judicial system.
For the Nigerians who are questioning the decision of the ICJ, my humble advise is for them to go through the elaborate literature on the Bakassi Pennisular imbroglio. They should painstakingly study the historical under-currents and exigencies of social and political dynamics against the background of the informed judicial opinion of the ICJ. Understandably, most people would not want to loose an inch of the oil-rich Bakassi Peninsula on patriotic grounds. But matters concerning territorial integrity cannot be subjected to the vagaries of sentiments or the shallow confines of patriotic sensibilities.
Nigeria and Cameroon made representations at the ICJ; both countries made their submissions by tried and tested legal luminaries – these submissions and the overwhelming historical evidences constituted the basis for the ICJ judgment or opinio juris.
A fundamental principle of International diplomacy is pacta sunt servanda, a principle which espouses that agreement or treaties are binding on all parties under International Law. Therefore it is trite argument that the modus vivendi of 1913 is still binding upon the parties and must be executed in good faith.
An interesting dimension to the Bakassi imbroglio is the claim by the Ambazonians or the people of Southern Cameroon. Specifically, the Ambazonians subsume under the people of the UN Trust territory under the administration of the United Kingdom. The Ambazonians claim that they formed the Social Democratic Front Political Party, which was taking power in Cameroon in 1992, but the election was rigged confirming the fact that Southern Cameroonians were never Cameroonians. This is contrary to a Communiqué signed by the Ambazonians in 1961 endorsing Southern Cameroon to form a federation.
In that same year, the UN passed Resolution 1608 of April 20, which empowered the North and South to implement the plebiscite results. Rather the North conducted the plebiscite in such a way as to compel the South to be subservient to Northern Cameroon.
Accordingly, the Ambazonians were compelled to disclose some declassified documents to the effect that Cameroon had made frantic efforts to annex portions of Nigeria in the OBUDU surroundings. These are the dialectics of the Bakassi dispute between the British Southern Cameroon and the Republic of Cameroon (French Cameroon). The Ambazonians were maltreated by the Cameroonians. The Ambazonians also claim that the plebiscite was inconclusive and the people are determined to rely on the doctrine of estoppel.
The nitty-gritty of the Ambazonians was to seek to redress the imbalance between the two Cameron’s or terminate the relationship outright. In International Law, an estoppel is defined as the contractual theory that justifiable reliance by one party, upon the encouragement of the other party, should bind the other party to perform its apparent promises. It is similar to the doctrine of pacta sunt servanda, which obliges States to consummate their promises especially in relations to treaties. As a result, President Paul Biya of Cameroon was obliged to either contest the lawsuit or honour its judgement.
An estoppel is a legal technique seldom used by lawyers to demand an uncompromising opponent to show cause why the judgement or conditions stated within the case should not be binding on them.
The estoppel in the Ambazonians versus Cameroons concerned the following issues:
• That the modus vivendi of 1913, which defined and implanted pillars in the ground delimiting the Nigerian Cameroon boundary was the only authentic tool in the resolution of the 1961 dispute over the Obudu Cattle Ranch.
• That Southern Camerouns was a distinct International entity from both Nigeria and Cameroon and this status was respected by both the British & French during the colonial epoch.
• That in both 1916 and 1922, the League of Nations and the colonial masters admitted the distinct identities of three States and that Northern Cameroons had no such distinction.
• That in the ICJ at The Hague, Cameroon admitted that it was the 1961 plebiscite that empowered it to claim Sovereignty, without which the claim would have been null and void.
• That Nigeria also admitted that Cameroon’s sovereignty over Southern Cameroun was only by way of the 1961 plebiscite, and ipso facto, Nigeria equally had Sovereignty of the then Northern Cameroons.
But Nigeria argued that the British had denounced the Anglo-German Treaty of 1913 and claimed that Bakassi is part and parcel of Nigeria because it was once part of the Old Calabar two centuries ago. It was considered that Nigeria’s claim to the Bakassi peninsula based on antiquity – a period spanning 200 years is not tenable in International Law. Besides, prior to Nigeria’s political independence in 1960, Bakassi had since been part and parcel of Southern Cameroun. Moreover the plebiscite of 1961 afforded the Bakassi people the opportunity to vote and clarify their positions as Cameroonians.
What has perhaps added stamina to the argument is the claim that when the British accepted to redefine the boundary between Cameroon and Nigeria, they disregarded Bakassi because they saw it as a marshy, uninhabitable land. Thus the boundary between Ambazonia and Nigeria in the disputed area is the mouth of Calabar River where the Akwayeffe River empties into the Atlantic Ocean. Thus the landmarks are the King-Point and Bakassi-Point both of which lie west of the Peninsula and North of James-Town respectively.
The Ambazonians are believed to be about six million in population as against the ten million Cameroonians. They claim that by the sheer smallness of their size, they are incapable of defending themselves against the Cameroonians and their big brother Nigeria with a population estimated at 140 million people. The Ambazonians therefore claim that the struggle for their territorial integrity will affect both Nigeria and Cameroon. The Ambazonians are also struggling for recognition as a separate State at the ICJ. They also believe that their can never be peace in the area without Nigeria and Cameroon giving recognition to the Ambazonians. For them bowing the oppressive regimes of both Countries is nothing but accepting the “reign of evil” on Earth. Obviously the claims to sovereignty of the Ambazonians have added a complex twist to the Bakassi imbroglio.
The ICJ acknowledged that the Nigeria – Cameroun border has four sectors. The first is Lake Chad. The second is River Gamana – eastwards to the Kombon Mountains. The third sector is the Boundary at the Cross River, while the fourth sector runs from the Cross River down to the Atlantic Ocean. Again, the ICJ recognized the fishing rights of the native population of the Bakassi Peninsular in the Estuary of the Cross River.
The nitty-gritty of the Ambazonians is that since the Anglo-German Treaty of 1913, set the boundaries, the treaties were still binding because no other treaty or agreements have it set aside or dissolved the international boundaries of the latter. On the contrary, whereas the boundaries are still authentic, both Nigeria and Cameroon are not respecting the boundary agreements.
From the Ambazonian viewpoint, Nigeria now wrestles with Cameroon to get a chunk of the Ambazonian land – which both Nigeria and Cameroon now regard as “no-mans-land”terra nullis. The question now is: what is the position of the Ambazonians? Will that territory be engulfed by Nigeria and Cameroon?
The Ambazonians also claim that way back in 1954 the Nigerian Government inaccurately determined – but to its own advantage, the border leaving out the Obudu Cattle Ranch – which lies inland, north of Bakassi. The Ambazonians claimed that the Obudu Cattle Ranch dispute also emanated from a Shell Company aerial survey map, which showed that Obudu Cattle Ranch was in Cameroonian territory.
From the foregoing, it is obvious that the Bakassi Peninsula problem is deeply rooted in history like the case of ‘Kashmir’ between India and Pakistan. The tasks this writer now imposes on the honourable members of the National Assembly are threefold. First, all members of the NASS should endeavour to obtain comprehensive materials on the history of the Bakassi Palaver, with emphasis on the role of the colonial masters and the treaties made in respect of the area thereto.
Secondly, granted that the honourable members understand the nuances of the historical, diplomatic and economic undercurrents that underpin the Bakassi crisis, they should also understand that the treaties in question predated Nigeria’s independence and determine their validity or otherwise in the light of contemporary realities. This should be considered against the background of the protracted litigations on the matter at the ICJ.
Thirdly, the honourable members should critically study the judgment of the ICJ on the Bakassi Peninsular. What is more important is Article 94 of the UN Charter – obliging members of the UN; to comply with judicial opinions of the ICJ – and this cannot be subjected to the vagaries of any qualifications or interpretation by the Municipal Courts or Legislative arms of governments. Whether the National Assembly ratifies the decision or not is immaterial and does not invalidate the efficacy of the ICJ decision. We have a responsibility to weigh the national interest of Nigeria against the international legal regime. The NASS should differentiate what is politically necessary and diplomatically expedient and define the limits of Nigeria’s national interest on the Bakassi issue.
Nigeria is a country generously endowed with some of the best brains in jurisprudence and international law. What the NASS should do now is to seek the informed legal opinion of qualified lawyers in the area and possibly re-open the case and not to deride or cast aspersion on ex-President Obasanjo.
Ex-President Obasanjo has not taken a course in International Law and Diplomacy and that was why Nigeria was ably represented by tried and tested legal luminaries like Justice Richard Akinjide, while Prince Bola Ajibola headed the Commission that implemented the ICJ Resolutions. No doubt, while it is not the contention of this writer that the ICJ decision is final, it is all too obvious that the World Court might have considered a mass of historical evidence – which weighed heavily against Nigeria’s claim to the Peninsula. Again, the Ambazonians who are caught in the crossfire between Nigeria and Cameroon cannot be considered to be Stateless, as ‘they’ like the people of Kashmir are vehemently struggling for recognition. They do not inhabit terra incognito or terra nullis. Nigeria cannot push her interest too far without consideration for the Ambazonians who seem to have been relegated to the background by Nigeria and Cameroon. They are like the proverbial grass that suffers when two elephants fight.
These are the complexities we Nigerians must consider before dragging an already unstable, wobbling Country into another bout of wanton instability. In the event of any war, it is the coastal areas that are coterminous with Bakassi that will be badly hit not the law makers in Abuja. Presently, Nigeria is acutely harassed by poverty and unemployment, crime and militancy, corruption and criminality in governance where those entrusted with public money grow rich at the expense of the people. Nigeria is wrestling with the provision of basic infrastructure such as roads and power supply, health and educational infrastructure. Our leaders are largely not accountable and that has increased the centrifugal forces of pull and tear.
Our leaders should rather give account of what they have done with the resources accruing from the Niger Delta before dragging the nation into an unnecessary territorial expansionist policy, which is largely driven by the gluttony of Nigeria’s comprador bourgeois class feeding fat from the crude oil wealth derived from the Niger Delta. As a nation, we should be able to differentiate between our national interest and the demands of a self-aggrandizing, oppressive leadership class.
Written by Idumange John, a University Lecturer and Activist.
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