Joshua Omenga
Besieged every day by the news of Biafra – the increasing agitation by the youths, the tacit support of wary and pragmatic elders, the incessant clashes resulting in carnages imaginable only to one used to a blood-obsessed country like Nigeria etc. these contradictions of co-existence disturbs the peace of even the most insouciant. These evil tidings have become more unavoidable now that the situation has been compounded by economic meltdown and abject lack of security for the life and property of the citizenry, so much so that each everyone has become his own police and well-meaning citizens now hail the activities of those disrupting the peace of the Nigerian polity. It is against this background that the Igbo’s cry for Biafra does not seem as preposterous as it would have seemed some years ago.

A case is always made in the dismissal of these agitations that the Nigerian State is an inviolable unit and no ethnic group has a right to secession – and the 1967 failed attempt at secession is cited as a warning. These assertions may well be true – but they are a truth of history which reality refuses to tally with. At the other extreme of the divide is the claim of the agitators, in the guise of self-determination, that Biafra is a State and should be freed from Nigerian suzerainty to achieve its ‘God-given mission’ of shining as a sun to the African world. The two contenders, armed with international law concepts, each preach the rightness of its course, and in the midst of these contradicting anthems, one offers support only as a matter of tribal affiliation. But let there be no mistake about it: for as long as people do not get what they want, and the government continue to resist attempts at secession, there will be no peace for either the people or the State.
Questioning Biafra’s Statehood
David Ijalaye’s question, ‘Was Biafra ever a state in international law?’ is less rhetorical than he supposed, for only a few will bother themselves with the legalese of international law in their definition of a state. Many, like Achebe, would insist that Biafra was a country; and these many seek its renascence. These people do not understand why the international community of states, even while excoriating the subjugation of Biafran nationals and the incessant violations of rights in Nigeria, do not come to their aid in securing release from the ‘Nigerian bondage’. The truth may as well be put bluntly: states do not recognise another entity as a state unless it fulfils certain conditions of statehood. These indicia of statehood are enumerated in Article 1 of the Montevideo Convention on the Rights and Duties of State, viz: permanent population, defined territory, government, and capacity to enter into relationship with other states. Applied to Biafra, it fulfils the first and second criteria, cannot fulfil the third while still under Nigeria’s dominion, and would need full sovereignty to fulfil the last criteria.

Then without much argument, Biafra was never a state in the international community of states, and this is the reason why even sympathetic states do not hurry to offer their support. But that said, much premium should not be placed on non-recognition, for even the Montevideo Convention provides that recognition is not a precondition for statehood; prior to recognition, an entity has a right to defend its integrity and assert its independence and to organise itself as it sees fit. According to Article 5 of the convention, recognition of a state merely signifies the readiness of the recognising state to accept the personality of the recognised state under international law.

This much is certain: while Biafra does not qualify as a state under international law, it is not to be concluded that its right to seek sovereignty of its region is foreclosed, neither is it to be inferred than because it is not a state, it has no right assertable under international law. This is the right to self-determination.
Biafra’s Right to Self(ish)-Determination?
Self-determination – let it be noted from the onset – is a vague and indeterminate concept capable of attracting any self-serving interpretation. There is no definition of it in the two international instruments providing them – the United Nations Charter and the UN Declaration on Granting of Independence to Colonial Peoples. Meanings assigned to the concept include: end of colonialism and creation of new states; sovereign equality which defines the relationship among extant states; the protection of individual and collective human rights and popular democratic rule, etc. In this babel of meanings, one thing certain in international practice is that self-determination applies only in a colonial situation, particularly in the 1960’s when it was recognised as a right entitling colonised peoples to freedom from their colonial masters. Beyond decolonisation, international law has no further business with self-determination question, so that an ethnic group in a multi-ethnic independent state like Nigeria has no claim to self-determination under international law. The reason for the reluctance of international law to meddle in self-determination struggles beyond decolonisation will soon be obvious – but first, it should be understood that even though closely related, self-determination is not synonymous to the right to secession. In fact, there is no right to secession, only perhaps a justification for it.

Self-determination – internal since decolonisation – involves the right of people to seek equitable involvement in the government of the land, equitable distribution of resources, and non-discrimination in government especially in a heterogeneous state where power is concentrated in the hand of one ethnic group. Mere insertion of democratic principle would not suffice as the majority ethnic group would always subjugate the minority by sheer number. So while self-determination is a feasible claim in an independent state, secession is frowned at, except in rare situation of threat of genocide as in Rwanda. This of course does not preclude the parent state from willingly granting independence to a faction – but that is about as feasible as arming an opponent as a matter of courtesy.

When Quebec declared independence from Canada, the legitimacy of that declaration was put forward for determination by the Quebec Superior Court. Judge Lesage found that a unilateral declaration of independence was ‘manifestly illegal’. However, the Court remarked that a state seeking to preserve its territorial integrity must observe the principles of internal self-determination, failure of which the faction seeking secession will be justified. The advisory opinion of Professor James Crawford worsened the case for secession. He pointed that per opinio juris sive necessitatis, no unilateral right to secession exist for a people outside of colonialism; any decision for secession is to be made by the parent government; secession is not a right recognised even in a situation of merged colonies; and that the need to protect the integrity of state territory overrides any claim to secession, provided that the state observes principles of self-determination in its internal arrangements.

The summary of this legal rhetoric is: that any state freed from imperialism has little need for self-determination, whereas the right to secession is entirely foreclosed. Decolonisation as a cure-all solution is understandable in a homogenous post-independent state, but not in a heterogeneous one. The theory of foreclosure of secession post colonialism ignores what Karen Parker regarded as ‘imperfect decolonisation’ – a situation where formerly independent states were merged together under imperialism. Reason dictates that upon decolonisation, except by willing cooperation, the disparate entities are bound to continue their separate existence. This was the situation in Burma and Indonesia and Nigeria. In the first two states, the heterogeneity of the states was put in consideration in the decolonisation process, so that each faction was free to seek its separate existence in the failure of the federation. This was not provided for in the Nigerian situation, obviously deliberately as the unfolding of events has shown.

Now, it should not be imagined for a moment that the lack of international sanction makes Biafra’s claim to independence a futility. International law, unlike domestic law, is a very weak system of law, with much words and near-nihil action. The reason should now be understood why international law does not take the side of the oppressed in this matter. The doctrine of uti possidetis (that a state may possess its territory) and the principle of non-intervention preclude states from meddling in the internal affairs of other states. And since secession is a domestic matter, even sympathetic states cannot offer overt help. Therefore, a secessionist faction has to rely on its strength to achieve its independence, and thereafter seek recognition from other states.
What Nigeria Forgets
A state’s existence is dependent on the people within it, for a state is not a mere geographical expression, and therefore, there is no basis in the assertion of the sacrosanctity of a state’s territory, for beyond the myth of sacrosanctity lies the reality that the Nigerian people are determinants of what happens to Nigeria’s boundaries. It should be recalled that the social contract theory of Hobbes and Locke posits that people have given their mandate to the government of the state in return for security, and if the state breaches this contract – by say, failure to reasonably provide security – the people can repeal their mandate by dissolving the government and constituting a new one. The pacta unionis et pacta subjectionis doctrine preserves the relationship between the state and the people. Section 2 and 14 of the Nigerian Constitution boldly vests sovereignty in the people, meaning – at least theoretically – that a deficient government can be dissolved by the people.

It will do no good to go into the jeremiad of recounting the many instances of failures of the Nigerian government which entitles the people to revoke their mandate, but it should be said even if only in passing that such revocation carries dire consequences. But the polemics of social contract and the ‘we-the-people’ charade apart…

Nigeria forgets that while international law does not accord the right to secession, the international community does not hesitate to embrace a faction which by peace or force has managed to secure independence for itself. In fact, international law follows reality, not the other way round; so that a de facto achievement of independence suffices for acceptance in the international community, no matter what the international law on the matter may be. What is necessary is that the violent should take his freedom by force. Violence served the Serbs in seeking freedom from Yugoslavia, and the world imitates the successful. Biafra has only to exert maximum force in attaining its claims. BUT VIOLENCE AND FORCE COME WITH A DREAR CONSEQUENCE…
For the Sake of Humanity
Loss of lives is inevitable on both sides of the struggle – the manifestation is already sobering – and the victor often finds he has lost more than he has gained. The many lives that have been lost and will be lost are of people who understand nothing of the politics of war. The bachelor who dances to the cadence of war drum must realise that war swallows heads. For this reason, the conference table is still the best option for the realisation of Biafra’s independence. For the sake of these many who have died and will die, both divides should find a meeting point to resolve their differences.

It is often asserted as a second choice that Nigeria should integrate and provide infrastructures for agitating groups as a means of quelling them. Alas, it is feared the time for such subornation is long gone. The continual betrayal, the utter insensitivity of the central government to the plight of the subjugated, the monstrosity of the crimes commited by government against the Nigerian peoples, the abject lack of security which has made each man his own police, the degenerate economy resultant of years of pilfering by public servants: are these the crimes that the aggrieved peoples will easily forgive for few morsels of bread? Time was when such expiation might have placated them. The divide is beyond ethnic; it has now become political and religious. Especially religious, that many-headed hydra which robs devotees of reason and makes the bad seem good. And the national curse called oil. It is perhaps a blessing that its value has dwindled, so that none may seek tenaciously to hold on to it for economic sustenance. There is therefore no pretence for remaining under one roof when the marriage has collapsed irretrievably. The one road left for Nigeria to ply is dissolution – it will not do to cling to some fantastical hope as this would merely prolong the anguish of the peoples. Perhaps even the faction agitating for independence will find that it has not gained much; but at least the cockroach does not regret its death in a pot of oil.
(Space has restricted the exhaustive discussion of some salient issues, but hopefully, subsequent write-ups will address them. In this dearth of everything including time, I appreciate your effort in reading this to the end.)
© 2016 Joshua Omenga



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