NIGERIA AND CAMEROON ON BAKASSI PENINSULA SAGA
It will be of importance and foundation for the very legal argument to be posited on the above issue, that the historical background must not in any way be left to the shadow. It will be necessary to recall that the settlement of the Europeans to Africa was only for economic means of livelihood and growth of their own industry over back in Europe.
It would be of great fact in issue to know and probably recall that the “Bakassi” was founded by the EFIK Kings as back as 1450 A.D. and it was reared along with the cultural and political disposition and governance of the Kingdom of the old Calabar people. On September 10th 1884, the kings and chiefs of the old Calabar signed a treaty of protection with Britain. And it thus became necessary for the British government to shield and protect the people of the old Calabar region which included the so called Bakassi: yet, it should be noted that the “treaty” did not in any way mean that the Old Calabar province seceded the region to the British government for total control.
But on November 15th 1893, the government of Britain and Germany defined and essentially divided their boundaries in Africa and which was supported also by another agreement on March 10th 1906. And this was broad over to both British and German territories from Yola to Lake Chad.
It is of principal magnitude to make a clean breast that protectorates became Colonies and of which the Obong of Calabar and his chiefs were neither consulted nor did they also resist by virtue of key in declarations made and also enforced in 1900, 1903 and 1906, which created the colonies of Northern Nigeria and Southern Nigeria.
Alas, in 1913, Britain with its colonies of both southern and northern Nigeria, alongside Germany with its colony of Cameroun reached and signed an agreement on their border from Yola to the sea. The first agreement was signed in London on March 11th, 1913: and the second was signed at Obokum on April 12th 1913. And which strictly addressed the precise demarcation of the Anglo-German Boundary between Nigeria and Cameroun from Yola to the Cross River; and of which Bakassi was also involved.
But a vital enquiry to be posed is that what led the British government to have seceded the “Bakassi peninsula” to Germany?
The Germans were interested in Shrimps in Bakassi peninsula particularly. And Britain was more wooed by the want of having an uninterrupted and secure sea lane access to Calabar, which was a key trade post. So in exchange for this, the British government conceded the Bakassi peninsula proper to Germany; note greatly that NIGERIA did not exist yet.
By the order-in-council of November 22, 1913; the northern and southern protectorate were amalgamated into a single protectorate of Nigeria...but it came into force on January 1, 1914, thus creating Nigeria. The amalgamation though was due for the British selfish economic reasons. But the British and German maps of Nigeria from January 1914 clearly showed Bakassi peninsula in Cameroun. So, this means that from 1914, the British government’s maps and those of the German government’s maps too, protruded clearly well that Bakassi peninsula was in Cameroun. Though in 1914, Nigeria was amalgamated; and neither the Obong nor any other traditional ruler, Emir, or Chief anywhere in Nigeria was consulted about it. And as at then, this act was carried out all for the sole purpose for British economic reasons...so as to extend the railway system of Northern Nigeria to the sea and to use excess tax revenues derived from southern Nigeria to correct a budget deficit in the northern Nigeria.
It is of great historical relevance and even a legal cue to argue with, that after the disastrous First World War in the year 1914, the Treaty of Versailles in the year 1916, deposed the German government of the title to the ownership of the territory of Cameroun and its environs. The British government invaded German Cameroun and all German territories were divided between Britain and France. And the then League of Nations, placed the “occupation of terra nullius” of the Cameroun territory under the mandate of Britain and France.
But by the virtue of agreement between the British government and the French government of “Franco-British Declaration of July 10 1919 by VISCOUNT MILNERI, the Bakassi peninsula and its environs became known as “British Cameroun”: it was then placed under the British mandate and administered conterminously with Nigeria; but it was not actually merged. Yet, the old 1913 border lines remained intact.
Also, another agreement emerged on December 29, 1929 and also on January 31, 1930 between Sir Graeme Thompson, the then Governor of the colony and protectorate of Nigeria___ and Paul Marchand, the then Commissaire de la Rèpublique Françoise au Cameroun. Yet, the maps of this period of political emergence in Africa, particularly in Nigeria and that of Cameroun depicted Bakassi peninsula within “British Cameroun” and not the colony and protectorate of Nigeria. Yet the Obong of Calabar and his chiefs, alongside with his people did not object, resist this action and neither did they protested of any sort to the British government like they did in 1913 when they got hold of the draft of the 1913 Anglo-German treaty...to the extent that they then sent delegates to London to register further their grievances to the Queen and to the British members of the parliament. And of which the Queen of England reiterated by affirming that her government will not in any way contravene the agreement it had with the Obong of Calabar and his people to protect them and so on July 14, 1913, the Majesty’s government denounced the “Anglo-German treaty” and effectively withdrew from it and Germany was then not allowed to re-enter and claim any protectorate over the Bakassi peninsula.
After the Second World War in 1939, the UN agreements re-ratified the prior borders and maps of that period, and still showed Bakassi peninsula in Cameroun and not in Nigeria.
After the war, the British and French League of Nations mandated over the southern and northern Cameroun were replaced by trusteeship agreements under the new United Nations. And this was approved by the General Assembly on December 13, 1946. These United-Nations agreements re-ratified the prior borders as codified by the previous Anglo-German and Anglo-French agreements.
By August 2nd 1946, Britain divided Cameroun into two___ Northern and Southern Cameroun. The 1946 “Order in council”, contained detailed provisions describing the border separating these two regions, now conveniently administered from Colonial Nigeria. But it was not part of it. By the year 1954, the Secretary of State for the colonies, issued a legal order, defining the border between Nigeria’s “Eastern Region” and the “Southern Cameroun”. Bakassi peninsula was in the “Southern Cameroun”; different and totally distinct from the Eastern region and the Calabar province and maps from that period show this very clearly. As at this time, General Gowon had not yet joined the Nigerian Army and neither did the Obong of Calabar nor his people nor any other native Nigerian protested.
It should be noted that in the year 1959 March, the United-Nations asked Britain to clarify the wishes of the people living in Northern and Southern Cameroun trusteeship territories in the run up to the “independence of Nigeria and Cameroun”. Yet, maps of this era showed Bakassi peninsula in the Cameroun and not in Nigeria.
It should be noted that on January 1 1960, the French Cameroun became Independent: while Nigeria became Independent on October 1, 1960. Yet the maps as at that time showed the Bakassi peninsula in “Southern Cameroun” and not Nigeria properly.
By February 11th and 12th of 1961, a PLEBISITE was held to clarify the wishes of those living in both Northern and Southern Cameroun.
By the year 1962, the Late Tafawa Balewa government exchanged enough diplomatic notes with Cameroun; acknowledging the fact that Bakassi peninsula was not a Nigerian territory.
Also, in the year January 1966, the Major General Aguiyi Ironsi government, respected all prior international agreements made and undergone by the Late Tafawa Balewa government. Yet the maps showed Bakassi peninsula in Cameroun.
By July 1966, Lt.Col. Gowon had come to power and also toed the footsteps of Major General Ironsi whom was his military predecessor by respecting and keeping allegiance to all international treaties, conventions, committees and all agreements signed by Nigeria. Yet the maps showed the Bakassi peninsula in Cameroun.
But by the year 1970, there were moves and thoughts to clarify and define the maritime border which was vaguely defined by the 1913 Anglo-German treaty. Yet, Bakassi peninsula was still in Cameroun; but the offshore boundary was not vivid, clear, open, defined, conspicuous or even glaring. And this was due to the absence of a detailed demarcation of the “navigable portion” of the approach channel to the Calabar Estuary. It should be noted greatly too, that in the year 1970, the Nigerian and Cameroonian government reconstituted the joint commission, which accepted the Anglo-German Agreement, which was visited as its reference point.
So it was though pertinent to consult the Chief Law Officer of the country then, in the honourable Legal demagogue of the Attorney-General of the Federation then, in the person of Teslim Elias. He was addressed to advise the Gowon led government and he posited that, “Nigeria had no legal basis for contesting the Bakassi peninsula but that work to delimit the offshore boundary and vague sections of the Land boundary should proceed at full speed in accordance with the original Anglo-German treaty of 1913”.
The technical problem thus became deciding exactly what part was navigable and what part was not navigable. And this was the matter that was addressed and particularly discussed on April 4th, 1971 at YAOUNDE, when Nigeria’s head of state then, in the person of General Gowon and the Cameroonian President, in the person of President Ahidjo. And also to the signed agreement being witnessed, were large delegates___ who saw and witnessed the signed “COKER-NGO” Line on British Admiralty Chart No. 3433 as far as the 3-nautical mile limit. Yet the status of Bakassi peninsula then was not properly and if at all, debated. Maps from that period still showed Bakassi peninsula in Cameroun.
There were series of meetings between the Ahidjo and Gowon led government in those past years. And this resulted into the “Maraua Accord of 1975”. This accord was certainly concerned with the Cameroonian sovereignty over the Bakassi peninsula but was not ratified as required by Nigerian constitution.
By July 29th 1975, General Murtala Mohammed toppled the General Gowon led administration and then proceeded to question all the domestic and foreign diplomatic policy decisions made by General Gowon. It should be noted that General Murtala Mohammed, who’s Supreme Military Council, is the highest policy making and governing body of Federal Republic of Nigeria refused to ratify it. And some of the questioned foreign policy included the “offshore maritime border with Cameroun”. General Mohammed’s decision to renege on Gowon’s agreements with Ahidjo resonated with a section of the population which had been hoping for a way to get out of its commitments to Cameroun; deriving from the 1961 Plebiscite and the colonial heritage, dating back to 1884. Still, Nigerian official maps from that period and continuing till today, except a few that were reprinted based on orders from the General Ibrahim Badamosi Babangida led government in 1991, showed Bakassi peninsula in Cameroun. General Gowon’s administration was labelled by the General Murtala Mohammed’s administration as__ “GIVING AWAY BAKASSI”. General Mohammed proceeded with the action of subsequently repudiating the Maraua Accord agreement.
But the unfortunate though unsuccessful coup dè etàt brought the General Olusegun Obasanjo led regime to power in Nigeria. General Obasanjo led regime, also toed the footstep of neglecting, disallowing and repeatedly repudiating those agreements; especially the Maraua Accord agreement.
However, by the year 1976, the Nigerian National Atlas was first published. And again here, showing all but the Bakassi peninsula in Cameroun__ as all maps had shown since the year 1961. The forward of the Nigerian national atlas was written and signed by the then General Obasanjo.
It is of great importance also to note that, the 1979 constitution of the federal republic of Nigeria, made no mention of anything as a “Bakassi Local Government”.
On May 12th 1982, a professor in Cambridge University, Professor Geoffrey Marston LLB LLM PhD; submitted a detailed report commissioned by Nigeria to the then Chief Law Officer of the Federal Republic of Nigeria. In the person of the then Attorney General of the federation and its Minister of Justice, Chief R.O.A. AKINJIDE; an excerpt is quoted as follows:
“The boundary regime established by the Anglo-German agreements of March 13th and 6th July 1914, is binding on both Nigeria and Cameroun by the virtue of a rule of “Customary International Law”, reflected in Article 11 of the Vienna convention on succession of states in respect of treaties: and also in 1978, as well as in the Declaration of the Organization of African Unity (OAU) of July 1964 and in respect of Nigeria, the Exchange of Notes with the United Kingdom of October 1960.
TAKING A LEGAL POSITION AND DETERMINING FACTS OF THE ICJ ON THE BAKASSI PENINSULA
On October 10th 2002, the International Court of Justice (ICJ) seated at Hague in Netherlands, in the case concerning the Land and Maritime boundary between Cameroon and Nigeria___ (CAMEROON vs. NIGERIA) (Equatorial Guinea Intervening).
· The foremost principle of acquisition of territory which the ICJ deduced in procuring its judgment; was that, by the virtue of the Anglo-German treaty of 1913; there was a CESSION. And also by the League of Nations order to Britain and France to take charge of Nigeria and Cameroon, hereby affecting the lure of Bakassi peninsula into the hands of the Cameroonian government by the French, was by PRESCRIPTION or say by treaty or agreement or Order given to France by the League of Nations and then by Britain to administer part of the territory.
· The court refused to recognize the international status of the kings, chiefs and the people of Calabar and the 1884 treaty of friendship and protection which they signed with Britain.
· The court refused totally to accept the grounds of the facts that the Obong of Calabar and the chiefs of Calabar as that then protested against the 1913 treaty of the Anglo-German; signed by the British government over to the German government.
· Also, it should be noted, that the court held unto the fact that, Nigeria by her several actions and signed treaties with several government of Cameroun had conceded to the mere acceptance of ownership of the Bakassi peninsula over to the Cameroonian government.
· The court also based its judgment on the notion of the fact that, Nigeria, having sort Legal advice from her most Chief Law Officer, that is, the person of the Attorney General as at 1970 in the person of Teslim Elias, had realised that the Bakassi peninsula belonged to the Cameroonian government and its people.
· Also, the court held unto the fact that, by the General Gowon led regime, signing the Maraua Accord with the Cameroonian government; the court held it was immaterial to start account to the fact whether, the so called agreement was ratified by the Nigerian National Assembly or its Supreme Military council or not.
· The ICJ continued that, it was also an “obiter dictum” if the ICJ will then accept Nigeria’s claim that the Maraua Accord was signed by General Gowon as a token to the Cameroonian government over the role they played in supporting the Nigerian government during the civil war: or that the ratification of the Maraua Accord was null and void because of its none ratification by the Nigerian legislative arm because of the dictatorial nature of the military governance of General Gowon.
· The ICJ also based its decision on the fact that, maps over the decades have shown the Bakassi peninsula hanging at the edge of the Nigerian border line of territorial waters and not within the vivid edge of the Nigeria territory.
· It will be very important to note that the ICJ faulted Nigeria’s position also on the fact that Nigeria had long been silent on the issue. And further that Nigeria had not for once recognised that during the Plebiscite in Cameroon, the people there voted as Cameroonians.
· The ICJ also went further to buttress the point by avowing critically well that the Nigerian government failed to realise that it had citizens at the Bakassi peninsula; because if Nigeria actually realised tht notion, Nigeria would have long ago gone to seek for redress on attaining the ownership of the Bakassi peninsula. And that, the Cameroonian government had been the one providing basic necessity owned by a government to its citizens to the people of the Bakassi peninsula. Not neglecting the fact that, Nigeria only had her army in the Bakassi peninsula region because of the economic trade affair of Nigeria and so as to serve the security interest of the larger Nigeria and shield it from attack. The ICJ actually battered the argument of Nigeria here by actually enforcing with concrete evidence that the Nigerian army are there only as security for the larger Nigeria and not for the people of Bakassi.
· But the ICJ in its decisions failed to recall that there was a time of bloodshed of some 36 men at that Bakassi peninsula region where it was accounted that 35 out of the 36 were Nigerians and the remaining one was a Cameroonian. The ICJ failed to recall the death and murder of three Nigerian soldiers at the depth of the Bakassi peninsula territorial waters during the period of carrying out their duties as security men for the people.
· The court failed to see that the treaty did not in any way give the British power to alienate all or any portion of the land which they were supposed to protect.
· The court failed to realise that Bakassi peninsula was originally part of the land the British government swore to protect which they later claimed to have in 1913 allegedly ceded to Germany.
· The court disregarded the inalienable rights of the kings, chiefs and the people of Old Calabar to their lands and ancestral homes: and also upheld the Anglo-German Treaty of 1913 by which Britain ceded the Bakassi peninsula to Germany.
· This 1913 treaty was the essential basis of the judgment giving sovereignty over Bakassi peninsula to Cameroon. The court without justification whatsoever failed and refused to follow its own judicial precedent set in the ADVISORY OPINION on WESTERN SAHARA. This was where it recognized the local people’s possession and title as superior to other forms of title. The case of Bakassi peninsula is that, the root of title belongs to the kings, chiefs and the people of Calabar.
· It is quite vivid, obvious and well observed that it was with total, absolute and wholly dismay that due to political reasons, the court headed by a French president, upheld a legal position which is contrary to all known laws and conventions; and by that way and virtue, promoting the interest and argument of the former colonial powers at the expense of Nigeria and her faithful innocent inhabitants.
· The French president of the court, the English judges and the German judges ought to disqualify themselves since the countries which they represent are in actual reality and essence, parties to the action.
· Let it be on record of history and law that Nigeria was legally raped by the virtue of these judges as citizens of the colonial powers whose action had come under scrutiny of international law, have acted as judges in their own cause and thereby rendered their judgment virtually null and void.
· A protectorate treaty which was signed to without jurisdiction should not take precedence over a community as title rights and ownership existing from time immemorial...and this was what Britain could not have given to Germany what it did not actually possess. And more cogent a reason is that Germany could not have actually given or transferred any land whatsoever to Cameroun; since it lacked the jurisdiction, authority, power, right and even title of right and title of transfer of right of ownership to Cameroun. And this can be substantiated with that Latin maxim which posits that, “NEMO DAT QUOD NON HABET”.
· It will be re-called that the old Calabar chiefs travelled all the way to London to protest against the treaty; the colonial secretary declared in the parliament that the treaty did not affect the status of Bakassi peninsula; and thereby no title was transferred to Germany. Also recall that the Queen denounced the treaty signed on March 11th 1913 and had effectively withdrew from it; and the Queen had restricted Germany from re-entering and claiming any protectorate over the Bakassi peninsula. And by this virtue, the British government had no title of transfer of ownership of right over the Bakassi peninsula to Germany and of which it could not be in any way then be argued to have been ceded to Cameroun by the German government_____ Lord Denning(MR) in the case of MACFOY vs. UAC said,
“...you cannot put something on nothing and expect it to stay there; it will fall”.
· There was an elapse of over eight decades between 1913 when the Anglo-German agreement was concluded and 1994 when Cameroun filed an application in the ICJ at the Hague for the recovery of the Bakassi peninsula from Nigeria: and of which Nigerians, mainly Efik tribes had effectively occupied the Bakassi peninsula region with farming and serious fishing business.
· It should also be noted as a matter of practice, that the learned Justice of the ICJ misdirected themselves when the failed, “probably forgot”, refused or maybe neglected to assume to reason that the doctrine of effective occupation and rejected the theory of Historical consolidation. And of which this is derivable from the equitable doctrine of Laches and Acquiescence or Prescription. This is a doctrine requiring that remedies be sought without any unreasonable delay.
Though it has become crystal clear that the Latin maxim___ VIGILANTIBUS ET NON DORMIENTIBUS JURA SUBVENIUNT (the law only aid those who are vigilant and not those who are indolent.) had aided Cameroun.
· But as a matter of fact and cognizance, a delay of 81 years should have been fatal to the Cameroonian case. Would the ICJ then neglect to recall that the Nigerian inhabitants of the Bakassi peninsula be naturalized into Cameroonian citizens or move back to what remains of Nigeria without a thought for their effective resettlement?
· Now it is very unfortunate to know that Nigeria’s silence over the years could have been equated to mean consent to the Bakassi peninsula belonging to Cameroun.
· Though one of the reasons given by the ICJ to have handed over the Bakassi peninsula to the Cameroonian government is that, it stated very clearly that, the Cameroonian government had signed a commitment at the hearing to be faithful to its traditional policy of hospitality and tolerance and that it will continue to afford protection to Nigerians living in the Bakassi peninsula.
· The ICJ held that in consequence of the Anglo-German treaty signed in 1913, that the sovereignty belonged over to Cameroun...but the ICJ failed to realise that the treaty was faulty based on the fact that it was once rejected by the Queen of England. The German government was over-thrown after the First World War. And that, that region had inhabitants of Efik who were Nigerians living in it.
· The ICJ failed to realise that the 1913 treaty was defective and abrogated by virtue of the Treaty of Versailles of June 28th 1919.
· The ICJ also failed to note and pin-point that every treaties concerning acquisition of colonial territory by Germany had to be approved by the German parliament and that the so called Anglo-German treaty of 1913 was not in any way approved by the German parliament.
· Worst still to note is that, the 1913 treaty elapsed when Germany lost the First World War and was terminated by the treaty of Versailles of 1919.
· The ruling of the ICJ in this case is no more than a political ruling. There is an urgent need to actually reconcile the ownership of the land by the Cameroonians and the ownership of the people and history by the Nigerians.
· The ICJ declared that sovereignty over the Bakassi peninsula belonged to Cameroun by virtue of International law. The question is what International law is being referred to here?
· Nigeria upheld the serving of the writ but under the international law jurisdiction, there was no reciprocity on the part of Cameroun. of which Cameroun later did so on March 3rd 1994 and lodged its application against Nigeria with the court just some three weeks later on March 29th 1994.
· However, if by the one-sided agreement that the Bakassi belonged to Cameroun, why did Cameroun agree that the region was ceded to her by the MAROUA ACCORD of 1975?
· Also it should be noted that Cameroun anchored her argument on the Maraua Accord of 1975 which invariably does not have a force of law in Nigeria. This is because the agreement was merely signed by General Gowon.
· The so called Maraua Accord had no issuance or exchange of ramification papers while the prospective instrument of ratification was not deposited with the United Nations as requested by International law.
· Why should such a crooked and legally defective instrument be the basis of litigation by any civilized country?
· Most inhabitants of the Bakassi peninsula region are Nigerians. And not less than 99% of the population are from Nigeria. There is this recognized principle of “UTI POSSIDETIS” in international law. And this means that respect must be given to the sanctity of colonial frontiers. And Cameroun has breached this principle by waiting till 1975 for a gratitude showing Gowon ceded the region to her.
· It is necessary to point out that the legal base of that agreement was faulty and the entire legal scenario was inconclusive because of non-ratification. Thus the legal contractual principle of “EX TURPI CAUSA NON ORITUR ACTIO” applies.
· The above fact nullifies this instance of issue and by this the principle of “LEX POSTERIORI DEROGAT PRIORI”___ meaning the most recent law takes precedence over an old law on the same subject. The 1975 purported treaty was void ab initio because its premise was legally faulty. It could not be considered as the recent law on the subject matter in the issue.
· And finally, let it be known that the court refused to consider the possession and ownership of the people, their culture, tradition and their human values. The ICJ in its impatient and crooked judgment blind folded integrity to the people of the Bakassi region by giving them away to the government of a Land they never owed the social contract theory of governance. The court of ICJ was more interested in the boundary than the people. But won’t it be a question of human natural justice to mull over the fact that, only when the subsistence of populace on a particular land subsist, that the concern of boundary can be defined?
This is the map of Nigeria as at the year 2000 to the year 2002; show casing the Bakassi peninsula at the edge of Nigeria; though, cut-angled by the drawn lines of the Cameroonian territory.
This is the Bakassi peninsula shown during the Civil war crisis in Nigeria. Depicting vividly well that, the Bakassi peninsula was not in any way assumed into the territory of Cameroun.
PAUL BIYA, THE CAMEROONIAN PRESIDENT AND PRESIDENT OBASANJO OF NIGERIA EXCHANGING HANDS AFTER THE ICJ JUDGMENT AND IN BOUND OF THE GREENTREE AGREEMENT SIGNED IN THE YEAR 2002.