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Nigeria: Rule of Law - Not a Tea Party

Emmanuel Majebi

29 August 2008

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The Nigerian ruling class (military or civilian), right from independence, has always put itself above the laws of Nigeria. It has always been one law for us and another one for it. It was thus a pleasant surprise when President Yar'Adua, upon inauguration, made adherence to the rule of law one of it's seven cardinal points. It was too good to be true.

Is it really possible that, in our life time, Nigeria would witness a leader who truly respects our laws? Is it just a political gimmick? Can the govern-ment really go the whole hog with it's rule of law commitment? What will happen when court judgments go against the government? Would they obey such?

These and many other questions tumbled from the lips of a not too trusting populace who have lived through experience of very many failed promises from the political class. The president tries as much as he could to keep to his side of the bargain, at least, in high profile political cases like the Rotimi Amaechi, the Ibrahim Idris and many other such cases.

Whilst some applauded the seeming move towards respecting the rule of law, others were of the view that what we were seeing just scratched the surface and that, in the wider perspective, the rule of law still largely remained in the doldrums, especially when it came to the masses. This school of thought points at various event to buttress it's position.

For example, a lot of people still get detained endlessly without bail or trial. Extra-judicial executions still rule the day with our law enforcement agencies. But, at least, even the critics acknowledge the fact that there was an initial bold step towards the observation of the rule of law, and pray that the movement be sustained.

The recent judgement of Justice Mohammed Umar of the Abuja Federal High Court, placing an order of interim stay on the handover of the Southern Bakasi to the Cameroons has started a tsunami of events. The reaction of the Federal Attorney General to this judgement almost threw us back to the dark ages of Obasanjo where Attorneys General used to sit on appeal over court judgments and tell us which court judgments are capable of being obeyed and which ones are not.

Hear him. "... we are not going back on the implementation of the International Court of Justice judgment... I have been served the court order. But the Supreme Court had said in a number of cases that a court order must be explicit to enable the person to whom the order is directed to understand and comply. I am duty bound to obey a court, but the court must be explicit. I do not understand which status quo the learned judge is referring to.... What is the res? The res is the final judgment of the ICJ, which we are bound to comply with...."

I have read snippets of the Justice Umar's judgment and, as a lawyer, I do not agree, with due respect to the learned Attorney General, that the status quo in question is not clear. I also do not agree with him that the res is the judgment of the ICJ, and even Justice Umar was very clear about this. Let us quote a bit of what the judge said in his judgment "....the parties to this suit (case) should maintain the status quo so that the res will not be destroyed. The res (in this case) is Southern Bakassi, which is to be ceded by the defendants (FGN and Cross River State Government) on August 14th 2008, ..."

The purport of the judgment of Justice Umar, to me, is very clear, even to a layman. It is that the decision by the federal government to hand over Southern Bakasi to the Cameroon pursuant to the purported Green Tree Agreement and judgement of the ICJ should be put on hold until the case of the plaintiffs had been disposed of. Maybe, at this juncture, it is necessary to do a brief rehash of the facts that led to the suit that gave rise to Justice Umar's injunction.

We do not, at this point, intend to go into the nitty gritty of the legality of the ICJ's judgment awarding Southern Bakasi and other Nigerian territories to Cameroon or the fact that Obasanjo signed a treaty with Cameroon called the Green Tree Agreement. A lot has already been written on these issues by many political and legal scholars. The issues that come up for consideration now are as follows (1) Does the judgment of the ICJ automatically bind local authorities in Nigeria? (2) if the answer to the above is "yes" why was the Green Tree Agreement needed? (3) is the Green Tree Agreement a treaty reached with "...another country..."? (4) if the answer to 3 above is "yes", which I think is should be, can it be of any effect in Nigeria without the concurrence of the National Assembly, as provided for under section 12 (1) of the 1999 Constitution, which says '...No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the

National Assembly..."? (4) is the Green Tree Agreement superior to our Constitution?

The above issues and many others are very justiciable and the court intends to look at what necessitated it to make an order of injunction. The Obasanjo government began the phased implemen-tation of the Green Tree Agrement without the approval of the National Assembly, which is in flagrant contradiction of the provisions of section 12 (1) of the 1999 Constitution.

Does the fact that one illegality has been committed justify committing of another? Would the Government of Cameroon, United States or Britain execute any foreign treaty in contravention of their constitutions? One is quite sympathetic with the Yar'Adua govern-ment because the Bakasi mess was inherited from Chief Obasanjo. The ex president had began a process without due process and, in the process, he had pledged Nigeria's word to a foreign country and the international community and, now, the Yar'Adua govern-ment is faced with a dilemma of (a) closing it's eyes to the illegality of Obasanjo and keeping our word to foreigners (2) breaking our word to foreigners and upholding the laws of the land.

It is a head-you-lose-tails-you-lose situation. But I feel that, going by the ante-cedents of the Yar'Adua government, it would have been better for it to go back to the UN and explain it's difficulty to the international community.

It can then plead for time to take care of the processes locally before proceeding to enforce the ICJ ruling. Our own position would, no doubt, be much more acceptable than those of many other countries as it relates to ICJ judgments. What we would be asking for is time to enforce the judgment in accordance to our laws and there is no reason why the international community would not bear with us! Not when the same international community has, for decades, closed it's eyes to flagrant violation of many ICJ judgments, when the super powers or their allies are on the wrong sides of these judgments.

Israel, for example, was recently found by the ICJ to be illegally building security fences on Palestinian lands and ordered Israel to stop and pull down same. Israel simply ignored this judgment and till date is pressing on with the building of this security fence. What did the International community do to Israel?

Continues next week.

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