Nigeria: Bakassi People Rally as Controversy Trails Elias, Wachuku Positionshttp://allafrica.com/stories/201209290186.html
Tagged: Cameroon, Central Africa, Land and Rural Issues, Legal Affairs, Nigeria, West Africa
BY HUGO ODIOGOR, 29 SEPTEMBER 2012
Displaced indigenes of Bakassi Peninsula will hold rallies in different parts of the world today to highlight the injustice that has been visited on them by the ceding of their homeland by the Federal Government without their consent.
With less than 10 days for the Jonathan led administration to take a second look at the October 1 2002 ,International Court of Justice judgment that ceded the Peninsula to Cameroon where there is apprehension as the Central African country tightens its grip.
Saturday Vanguard was reliably informed that the indigenous Bakassi population would hold rallies in Lagos, Abuja, Calabar, London, Germany, France, The Hague among others.
They said that the foundation for the ceding of Bakassi by the Federal Government was laid by a clause in an advise given to the government by the former Attorney General and Minister of Justice, Chief Taslim Oluwole Elias, during the Yakubu Gowon's regime, that Nigeria should allow Cameroon take over the peninsula because of the country's assistance to it during the Nigeria- Biafran civil war, wondering why some indigenous communities would be donated to another country based on such flimsy excuses.
Elias, had in his advise entitled "Nigeria/ Cameroun Boundary Demarcation," dated September 3, 1970 stated, 'The principle of good faith in international relations demands that Nigeria should not disavow her word of honour," adding that "every effort should be exerted on our side to ensure that Nigeria does not show ingratitude to a sister country that stood by us during the civil war.
Accordingly, I strongly urge that these recommendations of the Nigerian - Cameroun's Joint Boundary Commission dated August 14, 1970 should be implemented expeditiously..."
The Jonathan administration seem not prepared to comply with Article 61 of the ICJ Charter by approaching the court to review the judgment obtained by concealment of vital facts from the world jurists by both Nigeria and Cameroon.
This is even as Cameroon is alleged to be massing troops in the borders just as the movement of indigenes of Bakassi into Nigeria is heavily monitored.
According to sources, Bakassi people are also cut off from streams of information while efforts have been intensified by Cameroon to force thousands of the natives to change their names and language to French and to leave the peninsula in violation of the Green Tree Agreement, GTA.
Mr. Ani Esin, a former local government Chairman for Bakassi Local Government told Saturday Vanguard that since the uproar in Nigeria, following the publications by the Vanguard Newspaper, the Cameroonian government has been emboldened by the reluctance of the Federal government to demand for a revisit of the ICJ rulings to send troops into the peninsula to expel the indigenous population; force them out of their territory and occupy their property.
He said "The people of Bakassi who had hoped that the Jonathan administration will revisit to issue have become dejected as it appears that those who gave away Bakassi would not want to be exposed for the injustice committed against us. This is why the Pirate confraternity has been mobilising the public for a mass rally while we explore the option of forming a government in exile to continue the struggle after October 10, 2012".
It was learnt that in Yaounde, the Cameroonian authorities are in panic following revelations that ICJ was misled into believing that the moribund 1913 Anglo-German treaty and the unsigned 1975 Maroua declarations were the only legal documents that set the Land and Maritime boundaries between Nigeria and the Cameroun.
The Legal Opinion of Justice T.O. Elias
Meanwhile, the last may not have been heard of the administrative and legal tardiness that were employed to mislead the ICJ to concede Bakassi Peninsula to Cameroon.
Specifically, the legal opinion provided by Chief Elias and the Diplomatic Note written by Mr. Aja Wachuku as the External Affairs Minister have come up for scrutiny.
Some members of Nigerian defence team have continued to cite those documents as evidences that Bakassi Peninsula was part of Cameroon based on the 1913 Anglo German Treaty, which some claimed that Nigeria was obliged to uphold on attainment of independence on October 1,1960.
Prince Bola Ajibola SAN, who wrote a minority judgement at the Hague told Saturday Vanguard the Nigeria's case was weakened "because of what happened in the 1913 in the Anglo-German Agreement," pointing out that, "it was since then that we have this uphill task because it was Britain that ceded the whole of that Bakassi area, well described in Article 21 and 22 of that agreement, specifically to Germany."
However, it has been discovered the agreement dated March 11, 1913 was not signed until Germany was defeated during the First World War, hence it was deprived of the Bakassi Peninsula as Bakassi was ceded to France, which thereafter, gave independence to Cameroun that now got involved in the boundary dispute.
Both Senator Ewah Bassey- Henshaw and Prof. Walter Ofonagoro told Saturday Vanguard that the documents cited by the Nigerian defence team were "mischievously used to mislead those who are not familiar with the issues especially to achieve a predetermined goal."
Senator Henshaw said that until recently, most Nigerian government officials have regarded the 1913 Anglo-German Treaty as a living document but it was fundamentally flawed by the fact that it was not signed before the outbreak of the First World War after which Germany was stripped of all its colonial territories, making the treaty useless.
It was of no effect because all German territories were transferred to the League of Nations. Hensahaw further said, "those who have been citing the Aja Wachuku Diplomatic note and Dr. T.O Elias legal opinion have substantially relied on the belief that the Anglo- Nigeria Treaty was a living document, but this is not true."
Also, Nella Andem Rabana SAN who was part of Nigeria's team to the Hague said nations do not concede territories on exchange of diplomatic note or on legal opinion that are outside the stipulations of the parliament, which was one of the key institutions on Nigeria's attainment of independence in 1960. Bakassi Peninsula was recognised as part of the Nigerian territory in the 1963 Constitution and in the Cairo 1964 OUA summit, it was resolved that all colonial boundaries inherited at independence should be inviolated.
Furthermore, Prof. Ofonagoro said Nigeria and Cameroon decided to bind themselves with a document that was dead and had no force of law. He said "It is evident that Dr. Elias placed extra-ordinary weight on the work of the Nigeria/Cameroon Joint Commission which met at Yaoundé from August 12 to 14, 1970.
He said, "The major decisions taken at that meeting, after considerable discussion", was that the Joint Commission agreed to use the 1913 Anglo-German Treaty" as the basis for demarcating the boundary. It is obvious that this decision was made without seeking guidance from either the Attorney General, or the Honorable Minister of Transport through the office of the Head of State, otherwise, Dr. Elias would not be referring to decisions reached at the Yaoundé meeting of August 12-14, 1970.
The vital decision had been taken at that meeting of the Joint Commission, at which the most senior Nigerian official present was the Federal Director of Surveys. Once that decision had been taken, there was no escaping the implications of Article 20 of the Anglo-German Treaty of March 11, 1913, which stipulated that;
"Should the lower course of the Akwa Yafe so change its mouth as to transfer it to the Rio Del Rey, it is agreed that the area now known as the Bakassi peninsula shall remain German territory. In the said Legal Opinion, Dr. Elias further drew attention to "the exchange of notes between Nigeria and the United Kingdom on October 1, 1960 which binds Nigeria to honour obligations entered into on our behalf by the United Kingdom.
The implication of this statement is that the External Affairs Ministry considered the 1913 Agreement as one of the pre-independence treaties entered into by Britain on Nigeria's behalf. The diplomatic Note which was cited as evidence that the Bakassi peninsula was based on the above assumption. Dr. Elias did not, however, make any pronouncement on the legal validity of that treaty.
He only referred to decisions already taken by the Yaoundé meeting of the Nigerian-Cameroon border commission to adopt the 1913 Treaty as the basis for their boundary demarcation negotiations.
The commitment had already been made in August 12-14, of 1971 and he was of the opinion that Nigeria was bound by it.In fact, the Nigerian legal team at the ICJ had this to say about the legal validity of the Anglo-German Agreement of March 11, 1913:
In relation to the Treaty of Versailles, Nigeria points out that Article 289 thereof provided for "the revival of pre-war bi-lateral treaties concluded by Germany on notification to Germany by the other party." It contends that since Great Britain had taken no steps under Article 289 to revive the Agreement of March 11, 1913, it was accordingly abrogated.
"Former President Shehu Shagari was advised that the treaty was voidable by a Task Force that he appointed in 1981, to study the controversial 1913 Anglo-German Treaty. The committee concluded that the 1913 Agreement was voidable.
This was also the position reached by Professor Bassey Atte in a study of this subject saying that the 1913 Anglo-German Agreement "which purported to alter the status quo to Nigeria's disadvantage, is subject to great controversy as to its legality."
Prof. Ofonanagoro argued further that the opinion of Elias on the matter was limited by the fact that he was not at the Yaoundé Summit of the two Heads of State, on April 4, 1971, and that the famous Ngo/Coker, was first drawn to a 3-mile limit from the Akwa Yafe River, westwards to the channel of the Cross and Calabar Rivers, placing Bakassi on the Cameroonian side of this new boundary."
"If Dr. Elias knew about this boundary by September 3, 1970, eight months before Yaoundé Summit, where the Ngo/Coker line was agreed , then it means that at the highest level of the Nigerian Government, the level of the Attorney General, and presumably, his boss, the Head of State, the decision had already been taken at that time, to ignore the provision of Article 21 of the Anglo-German Treaty of March 11, 1913, and draw the boundary to the west of the Akwa Yafe River.
"In practice, the navigable channel of the Akwa Yafe was invariably forced to flow to the Bakassi north shore, and East to the Rio del Rey, and the British stated this fact in Article 20: which stated that, "Should the lower course of the Akwa Yafe so change its mouth as to transfer it to the Rio Del Rey, it is agreed that the area now known as Bakassi peninsula shall still remain German territory. Even by Article 20 of this Treaty, Bakassi is not ceded to German Cameroon; the article simply says that Bakassi shall still remain German territory.
This means that it was already "German territory" before the date of the drafting of Article 20 of that treaty. That being the case, Cameroon still has to produce the documentary basis of Bakassi becoming "German territory" in the first place.
There must be some documentary basis of Bakassi becoming German territory between April 14, 1893 and March 13, 1913, since the language of the Treaty says that Bakassi shall still remain German territory, even when by the flow of the boundary, following Akwa Yafe to Rio del Rey, it finds itself on the British side of the boundary. This is most strange to treaty law.
"In 1907, when the British and Germans had agreed that the Boundary should progress inland from the Thalweg of the Akwa Yafe, the Germans had requested for the frontier to be continued out to sea after reaching the mouth of the Akwa Yafe, all the way to the middle of the channel of the mouth of the old Calabar River.
However, according to minutes recorded by Mr. Strachey of the Foreign Office, Britain refused this request and told the Germans the "line should follow the shore of the Bakassi peninsula along the thalweg of the Akwa Yafe when the actual mouth of the river was reached.
It is therefore clear that as far back as 1907, it was generally known by both powers, that the navigable channel of the Akwa Yafe could never put Bakassi on the Cameroonian side of the border, since that channel must lie to the east of the Calabar and Cross River channels.
The heavier flow of these two bigger rivers would always force the Akwa Yafe east to Bakassi shore and the Rio Del Rey. Most often, the channel disappeared altogether, and was extremely difficult to find.