Whether or not Nigeria’s unity is negotiable

The need for this article arises from the recent statements credited to the Federal Government on the unity of Nigeria being non-negotiable

It is therefore pertinent to address this question especially in the light of the currents agitations all over the country for a renegotiation of the status quo.

Let us start from the highest law of the land, the constitution of the Federal Republic of Nigeria 1999 (as amended) (the constitution) of which section 12 makes provision for the implementation of treaties between the federal government and other countries.

Therefore notwithstanding her sovereignty the Nigerian state’s accession to the African Charter on Human and Peoples Right (the charter) effectively watered down the “indivisible and indissoluble” portion of her Constitution as contained in the preamble.

On account of section 12 of the constitution the Universal Declaration of Human Rights is therefore valid Nigerian law in so far as she is signatory to the Charter, same having been domesticated.

The Charter became part of Nigerian law following the enactment of the African Charter on Human and Peoples’ Rights Ratification and Enforcement Act), Cap 10, Laws of the Federation (LFN), 1990.

Under article 20 of the Charter: “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination.

They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.”

This provision was considered by the Supreme Court in the case of Abacha vs. Fawehinmi (2001) 51 WRN 29; (2000) 6 NWLR 228, (2002) 3 LRC 296, (2001) 1 CHR 95 wherein the court said:

“Where however, the treaty is enacted into law by the National Assembly, as was the case with the African Charter which is incorporated into our municipal (i.e. domestic) law by the African Charter on Human and

Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria 1990 (hereinafter is referred to simply as Cap. 10), it becomes binding and our Courts must give effect to it like all other laws falling within the Judicial power of the Courts.

By Cap. 10 the African Charter is now part of the laws of Nigeria and like all other laws, the Courts must uphold it. The Charter gives to citizens of member states of the Organization of African Unity rights and obligations, which rights and obligations are to be enforced by our Courts if they must have any meaning… No doubt Cap. 10 is a statue with international flavor.

Being so, therefore, I would think that if there is a conflict between it and another statute, its provisions will prevail over those of that other statute for the reason that it is presumed that the legislature does not intend to breach an international obligation.

To this extent, I agree with their Lordships of the Court below that the Charter possesses “a greater vigor and strength” than any other domestic statue.”

In the circumstance, Nigeria cannot buck from its obligation under international treaty using its domestic law as a defense. To do so would contravene the provision and essence of Article 7 of the 1969 Vienna Convention on the Law of Treaties under International law.

In light of the above, if the writer were counsel to the Nigerian State, would advice to do the needful in honour of her international obligation with regards to article 20 of the charter.

This would be to conduct a referendum with a view to ascertaining whether the agitations reflect the true views and wish of the people. The outcome of such an exercise should be put into effect as representing the position of the law.

After all a true democracy is one with accommodation for dissenting views and plurality of opinions.

In the event that the federal government does not subscribe to the option of a referendum, the alternative would be to repeal the Charter.

The provisions under article 20 concerning the right to self determination and that of the constitution on indivisibility and indissolubility of Nigeria cannot co-exist, they are incompatible. The domestic law must give way to an international obligation.

It is therefore dictatorial for the federal government to maintain the position of Nigeria’s so called unity being non- negotiable
Nigeria’ unity is indeed negotiable, what is not negotiable is the right of the people to self-determination. This is the law.

Bar Ogakwu is an Abuja based lawyer