THE CONTRIBUTIONS OF NIGERIA TO THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW IN AFRICA AND THE WORLD
PAPER PRESENTED AT THE MINI CONFERENCE ON NIGERIA AT FIFTY ORGANIZED BY THE NIGERIA STUDIES ASSOCIATION HELD ON THURSDAY, NOVEMBER 18, 2010 AT THE GOLDEN GATE UNIVERSITY SCHOOL OF LAW, 536 MISSION STREET, SAN FRANCISCO CALIFORNIA, UNITED STATES OF AMERICA.
I was contacted one year ago by the President of the Nigerian Studies Association, with a request to provide a venue in San Francisco for the Annual Association’s Conference on the theme “Nigeria at Fifty” as the nation celebrates its fiftieth independence anniversary. What other venue could have been more appropriate for the Conference on Nigeria at Fifty than under the auspices of the prestigious GGU School of Law Center for Advanced International Legal Studies located in the great historic city of San Francisco where the Charter of the United Nations was crafted and adopted in 1945, which by the grace of God is under my charge at this point in time.
I would like to start by thanking the Law School Dean, Dru Ramey immensely for granting my request for a space at the University to hold this important meeting under the auspices of the Sompong Sucharitkul Center for Advanced International Legal Studies. It is not often that African events of this nature are held in this part of the world. The Nigerian Studies Association’s decision to hold this year’s Conference in the West Coast of the United States is a wonderful initiative of bringing Nigeria closer to the people of California. This conference follows another very important conference on Africa hosted last year by the Center.
Nigeria’s vast population and oil wealth and her willingness to intervene in regional conflict situations made the country a regional giant or power in West Africa and a political force across the continent. As a member of the United Nations Organization from her independence in 1960 from the United Kingdom, Nigeria worked very hard to defend and uphold the primary purposes and principles of the United Nations Organization as enshrined in its Charter.
I have decided to speak on the contributions of Nigeria to the progressive development of International Law in Africa and the World. Nigeria is very unique as no other nation is comparatively identical to its history, development, temptations and contradictions. The Nigerian dynamic is one case of success within Africa of how 400 ethnic nationalities and language groups despite the attendant problems survived 50 odd years---- a plus for Africa’s giant country ---- despite all odds. Many nations do not have the same history.
I shall examine briefly a number of selected areas of international law to assess how effectively they are applied within the country’s legal system. Obviously, the international legal community has a great deal to learn from a country that experiences and navigates one of the greatest functional hybrid legal pluralisms in history, over encompassing, combining western English common law, customary and traditional with Islamic religious laws. Thus, the important question of how Nigeria incorporates and enforces international law domestically becomes very interesting. How does the legal framework of Nigeria treat international law and treaty obligations? One other very important issue of our topic that is worthy of special and detailed examination is Nigeria’s role in the prevention, management and resolution of conflicts on the African continent. Some writers have argued strongly against Nigeria’s deep involvement in most of the conflicts in the African continent and that the country should take a cue from the practice of other states that invest in such ventures only if their nations stand to record substantial gain there from.
2. THE PRINCIPLES AND OBJECTIVES OF NIGERIA’S PEACE INITIATIVES
The foreign policy objectives of a State are to be found in its basic law which is the constitution. Sometimes, the objectives are expressed very clearly. At other times they are not very clear, but can be implied. We have submitted elsewhere that although such foreign policy objectives would not necessarily articulate clearly a State’s disposition towards international law, they could give a clear indication of the manner of behavior of a State in specific regional or international conflict situations. The foreign policy of any state in relation to its constitution cannot be discussed without an objective examination of those policies which are within a State’s purview yet may nevertheless have international repercussions.
Accordingly, before we examine the role of Nigeria in some conflict cases in Africa, it is important to identify and highlight Nigeria’s fundamental principles and objectives of peace initiatives launched by her in the continent of Africa since independence.
Certain fundamental principles and objectives have found concrete expressions in almost all the former numerous constitutions in the country, but in particular, the operating 1999 Constitution which provides in parts as follows:i. commitment to peace, security, territorial integrity and economic prosperity, of Nigeria and the promotion of Africa’s interests as the major plank of Nigeria’s foreign policy;ii. commitment to good neighborliness by cultivating and maintaining, through bilateral and multilateral mechanisms, excellent relations with the neighboring countries of Benin, Niger, Chad, Cameroon, and those across the Atlantic Ocean, namely Equatorial Guinea, Sao Tome et Principe;iii. commitment to economic integration and sub-regional peace in West Africa through the Economic Community of West African States (ECOWAS), as a building bloc for the integration and unity of Africa. iv. respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication, including non-interference in the internal affairs of other states; andv. the promotion of international cooperation for the consolidation of universal Peace and mutual respect among nations, including the fostering of respect for the dignity and welfare of peoples of African descent all over the world.
Nigeria holds the strong view that peace cannot be divided. The threat to peace anywhere in Africa is considered by Nigeria as a threat to peace anywhere on the continent. Africa at war and in distress is a threat to peace and security. The very hard lessons from the Biafra War have made the country to avoid war in the solutions of its national problems and those who believed that there would be another war in the country and invested massively in war mongering equipments failed and consequently lost their assets.
Nigeria rightly believes that Africa cannot meet the challenges of poverty reduction and the elimination of diseases such as HIV/AIDS without peace and security across the continent. Regrettably, statistics have shown that African women are the most vulnerable to this killer disease.
Further more, the country cannot ignore its teaming population of about 150 million in the need to work for regional peace, security and prosperity in Africa. It has become a truism that one in every six Africans is a Nigerian. Also, that one in every ten black persons in the world is a Nigerian. There is virtually no part of the planet you do not find a Nigerian.
3. NIGERIA’S ROLE IN SELECTED AFRICAN CONFLICT RESOLUTION CASES
Nigeria has not been immune or spared from many internal conflicts in its life as an independent country. The most critical and devastating of such internal conflicts with some international law issues and dimensions was the Biafra Civil War which lasted for nearly three years. In addition, Nigeria experienced oppressive and deplorable bad governance in the hands of many successive military governments in its life after independence. All the same, she survived the conflicts and has not moved away from the observance of the principles and objectives of her foreign policy outlined and examined herein in dealing with the challenge of resolution of conflicts both nationally and internationally. Within the West African sub-region, she has made the promotion of peace and security her primary consideration under the framework of the Economic Community of West African States (ECOWAS). When Nigeria launched ECOMOG, the military arm of ECOWAS in August 1991, nobody gave it the slightest chance of any significant success. Relative peace and democracy recorded presently in countries like Liberia, Chad, Sierra Leone, to mention a few examples, would not have been possible without the determined fight put up by Nigerian Peacekeepers at huge human and material costs under the framework of OAU and ECOMOG. In furtherance of Nigeria’s policy of maintaining peace and security in the continent, Sudan and Nigeria have worked closely and share a long history of relations in Islamic learning and exchanges.
Thus, Nigeria facilitated the signing of a comprehensive Peace Accord between the Sudanese Government and the Sudanese Peoples Liberation Movement. (SPLM). Nigeria’s strong commitment to finding a lasting solution to the lingering Sudanese conflict in Darfur must be seen in President Obasanjo’s appointment at different times, of General Abdulsalammi Abubakar, a former Nigerian Military Head of State, and Ambassador Baba Gana Kingibe, a former Foreign Minister of Nigeria as Special Envoys to Sudan. The few lessons that can be learned from the efforts of Nigeria in her peace efforts in the continent:• History continues to evolve. National boundaries and the consequences or ripples of colonialism and human interventions in history represent Nigeria as one great act of mischief by the British which turns out gradually to be a blessing in disguise.• Nigeria at 50 is set to grow and to be a future market and political anchor nation.• The resources within the country make it potentially rich and a future emerging market.• Nigeria’s contribution to regional peace missions in Liberia and Sierra Leone cost the country $10 billion apart from the loss of the many gallant men and women of the Nigeria Armed Forces that paid the supreme sacrifice in the cause of peace • The African countries must learn to be self reliant and take the lead in resolving their problems without waiting for the rest of the world. • Irrespective of Nigeria’s huge resource endowments, the huge population of the country poses difficulty to the allocation of available resources for other equally competing needs such as poverty eradication, job creation, supply of public goods and the promotion of economic prosperity to the people. • Nigeria must keep its natural frontline position and continue to provide the necessary courageous leadership, either alone or in close partnership and consultations with other countries in resolving African conflicts. • Nigeria at 50 has infrastructure and buildings especially in the South East which are owned by the people directly and not by banks. In other countries, mortgages and banks own virtually everything. She remains a country with indigenous technology and latent opportunities.• The only country where internal entrepreneurs control the importation and distribution of goods from overseas. No other country in Africa South of the Sahara has this privilege. Lebanese, Indians, Chinese, Europeans, and others have taken over these markets these markets but Nigeria alone controls its internal market.
4. DEVELOPING INTERNATIONAL LAW IN NIGERIA
During the period of my graduate studies in law as a young scholar, which I commenced about four decades ago, I devoted my time and energy to the study and understanding of international law generally. In more contemporary times, my interest in the study and understanding of international law has shifted to its usefulness and application to the Nigerian legal system in particular, as well as the legal systems of other developing nations in general.
At one level, there has been a great deal of development of international law in Nigeria. Let me briefly give some examples and trends using a few selected very important areas:
1. In examining Nigeria’s true disposition toward the established rules of international law, a distinction should be made between the old established rules of international law which need either reform or equal application to all States, and new rules, the formulation of which must involve the participation of non-European developing nations that were excluded in the crafting of the older rules of international law. Apart from cultural, religious, social and linguistic differences of the Nigerian people, her disposition toward international law mainly derived from her past experiences under colonization, her desire for rapid economic, social and political development, and sociological approach to international law. While at independence she did not reject the rules of international law per se either categorically or in greater part, she was not obliged to be bound by all the existing rules of traditional classic international law. Generally, she reserved her right to review and re-examine the rules in order to make an informed decision on the position to take in specific particular cases. 2. International law does not prescribe how a State comes into being or comes into existence until it emerges in the international scene. However, international law seeks nowadays to endorse some kind of agreed minimum content of a democracy. There was no requirement that the government of a state, to be a government, should have been democratically elected or even that it should have the general support of its people.The major human rights treaties spell out in some detail the essentials of democracy, understood as the right of all citizens to participate in the political life of their societies. The International Covenant on Civil and Political Rights – the main United Nations human rights treaty in the field of civil and political rights, provides in Article 25 that every citizen has the right to take part in the conduct of public affairs, directly or through freely chosen representatives. This includes, in particular, the right to vote and to be elected at genuine periodic elections. How a State conducts its election, by secret ballot, or option A4 is entirely its business, provided that the election must be universal and equal suffrage held in circumstances which guarantee the free expression of the will of the electors.
Thus, as Nigeria prepares for a major general election next year, it becomes incumbent upon the leadership to correct once and for all the illegalities that were openly noticeable and prevalent during the previous exercises that were more of a ‘selection’ than an ‘election.’
3. It is now almost axiomatic to state unequivocally that for a State to achieve and maintain durable peace and security among its population to highly significant level within its territory require that the population enjoys a broad range of human rights, including economic, social and cultural rights. Regrettably, human rights development in Nigeria since independence has remained a huge problem. Nigeria is a party to most international human rights conventions, regional and universal, including the African Charter on Human and People’s Rights. However, incessant violations of human rights in the country remain alarming, unsatisfactory and unresolved. In Nigeria’s fifty years as an independent and sovereign nation, the military was in power for nearly thirty years. The performance and attitude of the Nigerian Courts to the Decrees and Edicts derogating from human rights lacked courage. As a result, their role during the long period of military rule was not very helpful for the protection of human rights.
The observance and respect for basic human rights has at best recorded minimum improvement in Nigeria during the recent periods of civilian administration. With regard to implementation of international human rights treaties to which Nigeria is a party, the most frequently used method of implementation is incorporation through the Act of Parliament en banc. Such incorporating enactments clearly state that the treaty provisions “are in force” domestically. The 1995 Act that established the National Human Rights Commission in Nigeria recognized the United Nations Charter, the Constitution of the Federal Republic of Nigeria and the principles of the dignity and equality of all human beings contained in other important international human rights instruments.
4. While in some parts of the world a significant change in the democratic balance was witnessed since about 1986, in Africa comparatively, few of such democracies among fifty four newly independent African States were recorded. Nigeria belongs to the few of such emerging democracies in Africa that has survived. While we recognize the fragility and reversibility of the experience, it remains in the words of the noted African commentator Ali Mazrui, an ‘unmistakable’ trend. The success of the forthcoming Nigerian general election scheduled for 2011 would ensure the future stability of the country. Military incursions in the history of Nigeria most of which were set up by external forces have become a curse for the external forces that set them up. Nigeria remains united; she still struggles with democracy, poverty issues, development and infrastructure when these would have been solved long ago. The road for democracy is laid and there may be no going back … 5. Political and politicized religion and its tenets continue to be a major issue in Nigeria. She remains one country with the largest population in the whole of West Coast of Africa where Islam and Christianity settle it with burning of issues on a 50-50 basis.
5. TREATY-MAKING PRACTICE
International law does not prescribe how a state must exercise its treaty-making power. The municipal law of each State determines who may enter into treaties. In certain countries, the power to make treaties vests in the President and the State. However, customary international law usually recognizes and grants certain persons or organs of State the power to conclude treaties unless otherwise provided in the constitution or national law of the country.
These persons include the Head of State, the Minister of Foreign Affairs, and Ambassadors in certain circumstances. Nigeria followed the practice of the United Kingdom in treaty-making practice for a very long time until 1979 when the power of treaty –making became vested in the Executive. In terms of ratification and implementation of treaties, the power vests with both the Executive and the Legislature. For a treaty validly concluded between Nigeria and another country to have the force of law in Nigeria, it must be enacted into law by the National Assembly. Such a treaty requires an enabling act of the country’s legislative body.
As reflected by her treaty-making practice, Nigeria endorses acts of incorporation whereby international law is granted full legal effect by municipal law. The practice of Nigeria with respect to succession of treaties has shown a preference for the continuity of treaty obligations, albeit with some modifications. She prefers a selective approach to treaty succession in that from an entire body of treaties with another country, a certain number may be selected for succession.
6. TEACHING AND DISSEMINATION OF INTERNATIONAL LAW
Nearly one hundred and ten years ago, after the two Hague Peace Conferences of 1899 and 1907, Oppenheim commented that the rudiments of international law “ought also to be taught in all secondary schools, and the teachers of history are the proper persons to undertake [the task].” This sentiment was echoed in the final objective of the United Nations Decade of International Law contained in a resolution which emphasized the teaching, dissemination and wider appreciation of international law. The said resolution was enthusiastically supported by most member states of the Organization, including the United States of America.
The study of international law in Nigeria has assumed much importance not only in the legal education of young Nigerian lawyers, but also in the general education of the public. This approach of teaching international law in Universities and other relevant institutions in the country has been in consonance with the country’s foreign policy since independence. The objectives for doing so have been outlined in detail elsewhere. Also, the Nigerian Society of International Law has made a significant contribution in the development of the public awareness of international law and in the study and dissemination of the subject in the country. The Society’s objectives further demonstrate the importance of the subject . Above all, almost all faculties of law in nearly one hundred and fourteen faculties of law in the country offer international law. The course is compulsory in certain faculties of law.
7. PROSPECTS FOR A CONTINUED PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW IN NIGERIA
The chances for the continued development of international law in Nigeria are very good. Judging from the educational foundation she has laid, Nigeria possesses a solid foundation upon which to develop sustained positive disposition toward international law. Unlike some of her sister African States, Nigeria emerged as an independent State with many well qualified lawyers, many of whom specialized in international law. Besides, during her 50 years as an independent country, Nigeria has exported international legal expertise to many developing countries and also international law-making and law-adjudicating bodies at regional, continental and international levels.
In this presentation, we have discussed Nigeria’s contributions to the progressive development of international law in the continent of Africa and in the world at large. She has demonstrated her averred commitment to the progressive development of international law in both theory and practice. What is still grossly lacking is transparency in public affairs and good governance that has zero tolerance for corruption and also seeks to eliminate poverty and deliver on the social programs for the people.
Particular attention was given to an examination of Nigeria’s roles in conflict prevention, resolution and management within and outside the African continent within the context of its constitution. In today’s world of economic interdependence, instantaneous communications, rapid transportation, and free flow of information across borders, no African government is immune to international pressure for changes in conduct.
In particular, Nigerian and other African governments must accept universally recognized principles of international law affecting internal war. While the norms do not necessarily affect the underlying causes of war, nor require states to end abuses that can lead to war, they at least bind the signatories to certain standards of conduct.
Some international agreements not specifically related to war, such as the Universal Declaration of Human Rights or the Convention on the Rights of the Child, are also highly relevant to the problems faced by Africa’s civilians in times of war. There are some unique African legal documents relevant to matters of internal war. The African Charter on Human and People’s Rights specifies that “every human being shall be entitled to respect for his life and the integrity of his person.” It also includes general statements on rights to physical health and education, as well as the protection of the family –rights that are typically not respected in times of war in Africa. In addition, is the OAU Convention on the humanitarian treatment of refugee.
Peace-keeping is one of the few bright spots, not only of Nigeria’s foreign policy, but of our entire national existence. In the process, we have cemented Africa’s place as a maker, not just consumer of international law. Western intellectuals have not paid sufficient attention to Africa’s contributions in this area with the result that most times, only the negatives about Africa are highlighted. Limited knowledge and lack of training on African issues are responsible.
As the leader in peace-keeping, creating the most advanced and legally consistent framework for combating conflicts and protecting democracy, Africa must assume full responsibility for its destiny and future. It must have become clear now to every State big or small that bad domestic policies can have severe international consequences. Overall, Nigeria and other African governments should go beyond emphasis on democracy and begin a new emphasis on good governance, where governments promote the welfare of the citizens in general, not just the elite.