Emma Aziken, Ben Agande and Laide Akinboade
29 November 2007
Lagos — IRRESPECTIVE of the objection by the Senate to the manner the Obasanjo Administration ceded the Bakasi Peninsula to the Cameroon, Nigeria will not renege on the hand-over agreement with Yaounde, Chairman of the Nigeria-Cameroun Mixed Commission, Prince Bola Ajibola, declared yesterday.
Fresh facts obtained by Vanguard yesterday showed that the Senate indeed received President Olusegun Obasanjo's letter seeking its ratification of the agreement with Cameroon.
The letter was read on the floor of the Senate on June 14, 2006, although both the letter and the agreement never went through the Senate process on account of what now appear to be intrigues.
This came on a day prominent lawyer, Chief Richard Akinjide (SAN), said "where an agreement is subject to ratification under the Nigerian Constitution, such as in the Nigeria/Cameroun Bakassi controversy, the signature, that of President Obasanjo, does not, in international law, establish consent by the Nigeria state to be bound."
Prince Ajibola emerging from a meeting with President Umaru Yar'Adua at the Presidential Villa, Abuja told State House correspondents that the Senate should do the right thing by "documenting the decision of the ICJ (International Court of Justice) without further delay."
He said Nigeria as a member of the United Nations, has no choice but to abide by the decision of the ICJ regardless of whether it is able to put its house in order by ensuring that the appropriate legislative agency ratify such a decision.
He said the fact that Bakassi was listed in the constitution of Nigeria was secondary to the ratification of the ICJ ruling by the National Assembly, pointing out that the meeting between the commission and President Yar'Adua "brought about a line of action on" Bakassi.
This includes that the displaced people of Bakassi are taken care off and resettled.
He said after the judgment, the then President Olusegun Obasanjo "acted promptly by sending a letter to the President of the Senate as well as the Speaker of the House of Representatives and other relevant agencies" to act on it accordingly.
"It was a matter for the Senate to have ratified. Not doing that was not the problem of the then president. It cannot be otherwise because once you are apprised of a matter; you do your part because the law assumes that you have done it.
The problem is the internal problem of Nigeria and it is not relevant to the ruling. We cannot approbate and reprobate at the same time," he said.
He warned that the agreement ceding the relevant territories to Cameroon had four witnesses -Germany, Britain, France and the United States of America- and Nigeria must not take this with levity.
"If we do this, the world is watching us," he said, adding: "From the beginning, we had always brought the matter to the National Assembly. The world would always expect us to do the right thing.
The world is watching us if we fail to abide by the decision of the ICJ."
Prince Ajibola explained that in international law, "the act of the president of a country is the act of everybody in that country. Whatever he says is the position of that country and it is binding on everybody.
"There is nothing that will stop that assignment (ceding of Bakassi to Cameroon). The Senate is aware of the fact that it failed to do what it ought to have done and it (the Senate) will do it now.
The president did what he ought to have done and that burden of ratification is the end of it," he stressed pointing out that the verdict of the ICJ was a victory for Nigeria. If the judgment had not been passed the way it was, Nigeria would have been more impoverished as Cameroon would have taken over some of Nigeria's offshore oil wells, he said.
Letter was read in Senate on June 14
However, Vanguard can now confirm that the letter from former President Obasanjo seeking the Senate's ratification of the agreement handing over Bakassi to Cameroon was read on the Senate floor on Wednesday, June 14, 2006, although it never went beyond that stage apparently on account of intrigues.
Sources in the Senate confirmed yesterday that the then Senate President, Senator Ken Nnamani, read the covering letter conveying the agreement reached with Cameroon on June 14, 2006.
The letter was documented in the Senate's Votes and Proceedings for June 15 which was approved by Senator Nnamani. The Votes and Proceedings is the legislature's chronicle of the happenings in the chamber on any sitting day.
The former Senate President in an interview with Vanguard on Wednesday, had said he could not recollect reading the letter but had gone on to affirm that the Senate never ratified the agreement.
Vanguard learnt that the agreement was not tabled for ratification on the Senate floor because of the mood of the Senate which after the collapse of the third term had swung against the former President.
"It was generally known that if the agreement was brought up it would have been definitely thrown out because those that would have done it gauged the mood of the Senate," one source close to the happenings of the then Senate disclosed yesterday.
Following the reading of the letter, no one ever mentioned it again as the letter became stuck in the Senate bureaucracy.
Nevertheless, blame was still being heaped on former President Obasanjo for going ahead with the implementation of the agreement without the ratification of the National Assembly.
Senators who served in that Senate speaking in that vein also claimed not to recollect receiving the letter.
"There are a number of questions that people should ask. Did the Senate ratify any agreement or did the National Assembly ratify any such agreement?" Senator Bassey Ewa-Henshaw who moved the motion for the nullification of the handover of Bakassi to Cameroon said.
"I don't recollect that the agreement was ever discussed on the Senate floor. Even if the letter came to the Senate, he should tell us whether it came in form of a letter or a bill," he added.
The Senate Chief Whip, Senator Kanti Bello, who served in the last Senate spoke in the same vein.
"The question is this: if there was that letter, why did the Senate not do anything about it? Those who are saying that the Senate is reacting late should remember that we are reacting constitutionally. We cannot fold our arms when our citizens are being killed in the area. The Senate reacted to save our citizens," he said.
Deputy Senate Minority Leader, Senator Olorunnimbe Mamora, while claiming ignorance of the letter said: "Whether it is a treaty, a bill or a letter he should have sent, we should focus on the real issue, which is that a territory of Nigeria as contained in the Constitution was being ceded to another country and that cannot take place until there is an amendment of the Constitution."
Akinjide speaks
Meanwhile, prominent lawyer, Chief Richard Akinjide (SAN), in a statement on the issue yesterday said "where an agreement is subject to ratification under the Nigerian Constitution, such as in the Nigeria/Cameroon Bakassi controversy, the signature, that of President Obasanjo, does not, in international law, establish consent by the Nigeria state to be bound.
The signature of President Obasanjo only qualifies the signatory state to proceed to the ratification of the document if it wants. But the signature does not create an obligation to ratify.
"Ratification involves two distinct procedural acts: the first is the act of the appropriate organ of the state, that is, the Senate in the case of Nigeria.
This is ratification in the constitutional sense under Section 12 of our Constitution or the Crown in the case of the United Kingdom or of the Senate in he United States of America.
The second is the international procedure which brings the treaty into force by a formal exchange by the state parties or the deposit of the instruments of ratification. Ratification in the latter sense is an important act involving consent to be bound. Before ratification, there was no consent by the state (here Nigeria) to be bound.
The provision in Section 12 of our Constitution is the express intention and notice to the world not to be bound by any agreement unless our Constitutional requirements are fulfilled just as the USA Senate.
"A treaty or an agreement is not binding on the state unless and until it comes into force.
The Nigeria/Cameroon so-called Agreement on Bakassi is not yet in force. It is therefore not binding on Nigeria.
"After a treaty is concluded, the written instrument, which provides formal evidence of consent to be bound by ratification, are placed in the custody of a depository which may be an international organization such as the United Nations.
The depository has functions of considerable importance relating to matters of form, including provision of information as to the time at which the treaty enters into force which must be after ratification. The United Nations Secretariat could play significant role in that respect.
Article 102 of the Charter of the United Nations provides as follows:
lEvery treaty and every international agreement entered into by any Member of the United Nations after the present charter comes into force shall as soon as possible be registered with the Secretarial and published by it.
lNo party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph I of this Article may invoke that treaty or agreement before any organ of the United Nations.
"This provision is intended to discourage secret diplomacy and to promote the availability of texts of agreements. The United Nations Secretariat accepts agreements for registration without conferring any status on them or the parties thereto which they would not have otherwise.
"Those who want to save the Bakassi Agreement cannot succeed by invoking the Article 46 of the Vienna Convention on the Law of Treaties because the violation here is manifest and concerns the rules of the Constitutional Law of Nigeria which is of fundamental importance hence the President wrote to the Nigerian Senate in abortive effort to get ratification.
"An important implication of Section 12 of our Constitution which provides for the mandatory approval of the Senate is that the consent of the Nigerian State is condition precedent before the Agreement can bind Nigeria and therefore the erga omnes principle is not applicable. In any event, the so-called 'agreement' with Cameroon is not yet in force."
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The decision of the government is a welcome relief to those who still love the country. The fact that the letter from the former President Obasanjo was read in the house by the then senate president who seems to now develop amnesia feining not to have seen this very important document shows ironically the level of hatred some highly-placed politicians have for the country. The government should not treat this serious problem lightly as the enemy within is thousand times more dangerous than an enemy outside the system. It may be necessary to generate a new legislation to overhaule the procedure for treating similar cases in the upper House to avoid a future recurrence of this incidence which, in the limit, was almost tending to push the country into an abyss.