INTRODUCTION
Self Determination
The concept of self-determination is a very powerful one, as Wolfgang Danspeckgruber theorised:
“No other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and hopes as self-determination.”
It evokes passionate emotions, expectations and fears, which often lead to serious conflict and bloodshed. The best approach to this combustible issue is to view the right to self-determination in its broad sense, as a process providing a wide range of possible outcomes dependent on the situations, needs, interests and conditions of concerned parties.
Self-determination has two aspects, internal and external. Internal self-determination is the right of the people of a state to govern themselves without outside interference. External self-determination is the right of people to determine their own political status and to be free of alien domination, including formation of their own independent state. However, independence is not the only possible outcome of an exercise of self-determination.
Further, self-determination has been famously defined by several international law scholars. One of the most striking definitions was that made by Karen Parker; an international Humanitarian Law expert during the presentation to first international conference on the Right to Self-Determination at the United Nations Conference in Geneva in August 2000. Karen Parker had in her presentation: Understanding Self-Determination: The Basics; extensively or elaborately. He wrote:
“The right to self-determination, a fundamental principle of human rights law, (1) is an individual and collective right to “freely determine… Political status and [to] freely pursue… Economic, social and cultural development. (2) The principle of self-determination is generally linked to the de-colonisation process that took place after the promulgation of the United Nations Charter of 1945. (3) Of course, the obligation to respect the principle of self-determination is a prominent feature of the Charter, appearing, inter alia, in both Preamble to the Charter and in Article 1.
The International Court of Justice refers to the right to self-determination, as a right held by people rather than a right held by governments alone. (4) The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: A history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.(5) The right to self-determination is indisputably a norm of jus cogens. (6) Jus cogens norms are the highest rules of international law and they must be strictly obeyed at all times. Both the International Court of Justice and the Inter-American Commission on Human Rights of the Organisation of American States have ruled on cases in a way that supports the view that the principle of self-determination also has the legal status of erga omnes.(7) The term “erga omnes” means “flowing to all.” Accordingly, erga omnes obligations of a state are owed to the international community as a whole: When a principle achieves the status of erga omnes the rest of the international community is under a mandatory duty to respect it in all circumstances in their relations with each other.”
Historical evolution of right to self determination
One of the earliest proponents of the right to self-determination was U.S. President, Woodrow Wilson. A month after his famous “Fourteen Points” speech to the U.S. Congress in January 1918 (in which the term “self-determination” does not appear), he proclaimed:
“Self-determination” is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril.
Despite Wilson’s injunction, attempts to turn self-determination from a “mere phrase” into a binding norm did not occur for over 40 years, following the deaths of tens of millions in two major wars. While the Covenant of the League of Nations did indirectly address the principle of self-determination (without using the word) in the system of mandates that it established, identification of the mandates and implementation of the system was wholly dependent on politics, not law.
The unprovoked and illegal proscription of IPOB
I have only just been informed (yet unconfirmed independently by me), that the president has UNILATERALLY signed a proclamation order, proscribing IPOB without engaging in the legally prescribed process. If this is true, such as occurred in the Army’s earlier proscription, such an act will not only be unconstitutional and illegal, but will also be dead on arrival, indeed as dead as dodo (Raphus Cucullatus), the now extinct Southern African bird that was found in Mauritius. By the clear provisions of section 2 of the Terrorism Prevention Act, the power to declare a group as a terrorist organisation does not lie either with the president, Chief of Army Staff, or the military. The power rests squarely and exclusively with the judiciary. This is based on an application being made to a judge in chambers. Such an application has to be first made to the judge in chambers by the National Security Adviser (NSA), the Honourable Attorney General of the Federation (AGF), or the Inspector General of Police (IGP). However, the approval of the president must be first sought and obtained before the application is made to the judge in chambers. Where the court makes an order proscribing the organisation, notice of such a declaration by the court shall then be published in the official Gazette of the Federation and also advertised in two national newspapers; and at such other places as the judge in chambers may direct. It is, therefore, clear from the above cumbersome and labyrinthine legal steps, which involve two of the three arms of government (the Executive and Judiciary), that stigmatisation, proclamation, banning or proscription of an organisation as, or being a terrorist organisation is not a child’s play, a dinner or cocktail party, or one to be taken lightly, as a picnic at Badagry or Kuramo Beach. It is indeed a very serious matter, as it affects so many domestically and internationally recognised fundamental rights – freedoms of association, peaceful assembly, movement, conscience and the right to self-determination, etc. The right to self determination itself is the right of a people to determine their destiny, their political status and the right to freely pursue their social, cultural and economic development. This right to self determinations is recognised by various international instruments and decided cases, including the Universal Declaration of Human Rights, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the African Charter on Human and Peoples Rights of 1981, the Helsinki Final Act adopted by the Conference on Security and Cooperation in Europe (CSCE), the Vienna Declaration and Programme of Action of 1993, and the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States adopted in 1970 by the UN General Assembly, etc. Indeed, the right to self-determination has even been affirmed by the International Court of Justice in many cases, including Namibia Case 7, the Western Sahara Case 8 and the East Timor Case 9. Similarly, this right has been gloriously espoused by the UN Human Rights Committee 10, and the Committee on the Elimination of Racial Discrimination 11, UN Covenant on Civil and Political Rights, 1976, International Covenant on Economic, Social and Cultural Rights of 1st January, 1976, etc. Indeed, Article 2(a) of the Convention of the Organisation of the Islamic Conference (OIC) on Combating International Terrorism of 1999, allows peoples struggle, including armed struggle against aggression, foreign occupation, colonialism and hegemony, aimed at liberation and self determination in accordance with the principles of international law, and such shall not be considered a terrorist act. Subsequently, the AGF upon the president’s approval, may also later withdraw the proscription order placed on any organisation classified as terrorist if he becomes satisfied that such proscribed organisation has repented and ceased to engage in acts of terrorism, and there does not appear to be any likelihood of the organisation ever repeating such terrorist acts in the future. Such withdrawal of proscription shall also be published in the official Gazette of the government. It is curious, is it not, to note that, neither Mr. President nor the military High Command has ever flexed their muscles, arrested, detained, or even merely condemn, let alone stigmatise or proscribe, rampaging herdsmen, blood sucking Baddoo Cult, those that massacred thousands of innocent Nigerian Shiites, Southern Kaduna indigenes and Agatu people horrendously killed in cold blood and buried in shallow graves, indiscriminate quit notice peddlers, and other luciferous organisations, operating across the nooks and crannies of Nigeria, as terrorist organisations. The last time I checked, the president, though possesses the constitutional power (section 217(2), 1999 Constitution, to deploy the Nigerian Armed Forces for the purpose of suppressing insurrection and aiding civil authorities to restore law and order when it breaks down, there is no scintilla of visible evidence that IPOD had ever engaged itself in any insurrection or dangerous acts, such as to overwhelm the usual Police Force, thus necessitating the full weight of military apparatchik. The primary duty of maintaining law and order and preserving public order and public peace and safety is the constitutional preserve of the Nigeria Police Force, as enshrined in section 215(3) of the 1999 Constitution. Can the Nigerian government honestly proclaim IPOB a terrorist group simply because it peacefully demands for self-determination and more states for the peoples of the South East, demonstrates on the streets with unarmed groups that carry cardboard placards in their hands, wear berets, matching with sticks, blowing whistles, flutes, singing and clapping? These are young unmasked men who pose no immediate danger to the larger community wherein they attend the same churches, markets, schools, social events and fetch water from the same spirogyra-infested streams. They do not, unlike terrorist groups, operate from secluded eerie forests, caves, wilderness, jungles, nor do they maintain unapproachable deadly camps. Unlike terrorist groups, IPOB members are amenable to round table negotiations. They do not intimidate or overawe government, engage in violent destruction of public properties, nor involve themselves in kidnappings, bombings, and threats to the nation. But, they unrepentantly demand for a national referendum to carve out a state of Biafra from Nigeria. That is not terrorism. This is surely nothing beyond the powers of the Civil Police. If it were, why has the IGP deployed a 500 crack team of armed mobile Policemen and women thereafter the mayhem, torture and wanton killings of innocent and unarmed citizens?
What is happening today is wanton militarisation of the civilian populace, which is dangerous. The military that ought to possess detached, fearsome aura of mystery and invisibility, rarely being seen in public places, except only during serious military operations involving external aggression, is today seen in the open, wrestling with and killing unarmed citizens in the ponds, streets and in the dark alleys of Umuahia, Aba, Onitsha, Port-Harcourt, Enugu and Owerri. That reduces the military’s worth and cheapens it. God forbid this continuing.
Thought for the week
The difference between a terrorist and a freedom fighter is a matter of perspective: it all depends on the observer and the verdict of history. -Pentti Linkola