Bakassi: Dilemma of the Rule of Law

On August 14, 2008 at precisely 11 o’clock in the morning, Nigeria ceded the Bakassi peninsula to Cameroon. This handover ceremony is a culmination of years of diplomatic maneuvers, legal battle and military tension between Nigeria and Cameroon. Following the International Court of Justice verdict which ruled in favor of Cameroon and subsequently the Green Tree agreement, Nigeria accepted to hand over the disputed peninsula. The ceding of this peninsula has generated mixed reactions amongst Nigerians. One main ground of condemnation is that the government has not followed due process in handing over Bakassi. Government action has been seen by many as a brazen disregard for the rule of law.

One of the grounds for this assumption is that under section 12 of the 1999 Constitution, for a treaty to be law, such treaty must be enacted into law by the National Assembly.’, ‘Furthermore, Bakassi and its boundaries are listed in the Constitution and this singular act of the Federal Government has altered the Constitution without due process. More worrisome is the fact that there was an existing court order restraining the Federal government from ceding the peninsula. That order was not vacated before the handover of Bakassi. For a country that lays claim to a rule of law culture, there is cause to worry.

The paradox which this situation presents is that the federal government claims it is obeying an international court order and honouring Nigeria’s obligation not just to Cameroon but to the international community. The troubling question is: How do we balance this obligation of due process to the international community and the procedural requirements of our constitution?

In answering this question, it is important to briefly address the rationale of separation of powers and wisdom of sharing complimentary roles between the Legislature, the Executive and the Judiciary especially in matters of this nature. The federalist papers of the founding fathers of the American democracy clearly demonstrate that the separation of powers is a necessary safety net to protect the country from the tyranny of any tier or organ of government.

Separation of powers is not a cosmetic provision but a fundamental oversight structure which allows each of the organs of government to check the activities of the other. Ignoring the principles espoused in this time celebrated concept is hitting at the root of democracy and the principle of the rule of law. The right of the Executive to drive the foreign policy of Nigeria is not in doubt. However when Nigeria obligates itself under any international treaty, the national assembly is empowered by the constitution to ratify such an obligation or agreement before it becomes law.

As straightforward as the above argument may be, there is dilemma in the Bakassi conflict. There was no National Assembly when Nigeria submitted itself to the jurisdiction of the international Court Justice. Would it not amount to a breach of the rule of law principle for Nigeria to refuse or delay to obey a valid judgment of the International Court whose jurisdiction it accepted? Furthermore, in an event where the necessary procedural actions would delay such obedience, can the Federal Government unilaterally give effect to such agreement? Is the principle of necessity in place here? Can good faith justify procedural impurity? These for me are valid questions that will help us resolve or appreciate the dilemma the rule of law has presented.

This writer does not lay claim to having all the answers but I must say that there is a valid obligation on the part of Nigeria to honour its international agreement. It is a duty which is tied to our avowed commitment to rule of law and due process locally and in the international scene. Refusing or legislating ourselves out of such obligation is morally and legally wrong. The African Commission in one of its resolutions clearly stated that countries cannot legislate themselves out of an obligation which they signed up to internationally. Yes the municipal laws especially in a dualist state may provide further requirements before an international treaty may become binding, such provisions only seek to broaden the circle of participation. Honouring a treaty like in the case of the Green Tree Agreement is necessary and compelling.

In an event where procedural requirements or participants in the process become a clog to achieving a municipal ratification, the Executive must seek dialogue. You cannot give effect to due process and rule of law by going outside the law. As much as it is compelling for us to give effect to the judgment of the International Court, I would submit that the Federal government should have sought solution to the dilemma of the Bakassi within the ambit of legality and constitutionality.