Referendum for Biafra: Ending the Legal Heresy, Building a New Nation by: Johnmary Chukwukasi Jideobi, Esq.

There is certainly no denying the unfortunate fact that a whirlwind of anarchy is about encircling the whole Nigerian Nation. Indeed, this is a perilous time for the Nigerian nation. The handwriting is boldly written on the wall for even the blind to see and too audible for even the deaf to hear. Permit me to borrow the words of Bishop Matthew Hassan Kukkah [that great and acclaimed Apostle of the pen] to paint a clearer picture of what apparently is the dominant mood of our nation. Now, listen to this:

“The froth has come to the top: Nigeria’s broth of deceit and opportunism masquerading as politics has triggered a diarrhea with dire consequences for the public space. Except we concede that we are a cursed nation, it is difficult to fathom how we could have ended up where we are now, a nation in a permanent stupor and always unable to celebrate its victories not to talk of avoiding its sorrows. How did we leave so many doors open that a small coterie of nondescript individuals with neither known addresses nor antecedents suddenly took centre stage?A first time visitor to our country in the last few weeks would think they have crashed into a party organised by drunken criminals who, in their bouts of raucous inebriation have resorted to a serious brawl with self injuries while overturning tables and food, destroying both glasses and plates… Suddenly, the nation seems to have come unhinged. Across the country, sounds of very irresponsible and provocative utterances fill the air. The media lapped it all up and by giving these adult urchins publicity, created the impression that the end of our nation had arrived.”

The above vivid analysis of Bishop Kukkah [which I most humbly crave his indulgence to adopt in this exercise] amply captures the state of the Nigerian nation at the moment. As the days go by, there is still no sign that we are yet resolved, as a people, to turn the ugly tide and rescue our nation from the precipice. Amidst this encircling gloom and blasting storm dangerously tossing the ship of state around, this writer humbly seeks [by this little contribution] to weigh into the situation [using the extant laws as the guiding polestar] by pointing at possible solutions capable of dousing tensions and stilling the storm especially in view of the deafening clamour for referendum as championed by the Indigenous People of Biafra [called IPOB henceforth in this treatise] as a prelude to the possible balkanization of the Nigerian State. In the main therefore, this write-up principally aims at debunking the legal heresy that our body of laws [corpus juris] has no provision for the conduct of referendum as it is presently constituted. This false legal postulation has unfortunately saturated the climate of Biafra’s debate, blurred the vision of stakeholders [including our Federal Parliaments] and the Biafran agitators alike. If the storm precipitated by this erroneous legal postulation is successfully dispersed in and by this exercise, it will have reduced tension in the land, in that the Nigerian political stakeholders would no longer deploy the cudgel of such legal apostasy to push back the Biafran agitators and put down their legitimate demand with a view to possibly achieving a temporal victory of postponing what now seems to be the doomsday. At the same time, the Biafran agitators will have learnt [from the gratuitously beneficent illumination of this academic enterprise] how to appropriately table their demand [for the conduct of a referendum] to the Nigerian state in a manner that is devoid of ethnic tension which seems to largely characterize their present method of seeking the said referendum. After all, it is not a prerequisite that for a successful conduct of referendum to take place [within a geographical space] the de facto/de jure sovereign state [here, the Nigerian state] would be plunged [willy-nilly] into the cauldron of needless political turmoil or its continuous existence violently threatened or the sanctity of her laws violated by hate-speeches or such other crude methods and unpolished tactics with which IPOB has [principally] sustained its agitations/activities so far. This would unfortunately translate into nothing but abuse of such right to demand for the conduct of a referendum which the legal system of every civilised nation disavows.

Dispelling the Legal Heresies:

It is now beyond any legal argument that the right to self-determination [discernible from Article 20 of the African Charter on Human and Peoples Rights] enures to the benefit of people of all nations [Biafrans not excluded]. For its defining impact on this discuss, we make haste to reproduce the lucid provision of the said Article 20 of African Charter as follows;

 “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.”

Be it noted that no less an institution than the Nigerian Supreme Court has had the opportunity to eloquently testify that “the Charter gives to citizens of member states of the Organisation of African Unity rights and obligations”. Speaking further on the imperative of such rights conferred by the African Charter being enforced by the Nigerian courts, the Supreme Court went further to percipiently insist that “if they must have any meaning”, those “rights and obligations are to be enforced by our Courts”. [See generally the case of Abacha vs. Fawehinmi (2001) 51 WRN 29; (2000) 6 NWLR 228, (2002) 3 LRC 296, (2001) 1 CHR 95.]

How then is the Right to Self-determination Enforced?

Riding on the back of the foregoing accepted legal position that the right to self-determination is available to any group within the Nigerian geographical space, the crucial question now craving for resolution remains “how” such a right is to be enforced by any group [such as the IPOB and its kindred groups] desirous of taking advantage of same within the orbit of our laws.

Pursuant to section 46 (3) of the amended 1999 Constitution of the Federal Republic of Nigeria [henceforth in this piece called the Constitution] the Chief Justice of Nigeria has been empowered to make Rules and he has made Rules for the enforcement of these human rights. We now turn to the Fundamental Rights Enforcement Procedure Rules, 2009 [henceforth in this reflection called FREP Rules] which currently holds the field in matters verging on fundamental rights enforcements in Nigeria. Under section 46(1) and (2) of the Constitution of the Federal Republic of Nigeria, as amended (“the Constitution”), any person who alleges that any of his fundamental rights and freedoms under Chapter IV of the Constitution is being or is likely to be contravened in any individual or the State in relation to him may apply to a High Court in that State for redress; and the High Court shall have original jurisdiction to hear and determine any application made to it, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any right within the State. It should be noted that only the High Court (the Federal High Court, State High Court or the High Court of the Federal Capital Territory) has original jurisdiction in respect of applications for the enforcement of human rights in Nigeria. See Order 1, rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. For purposes of emphasis, paragraph 3 of the Preambles to the Rules is reproduced thus:

“3.       The overriding objectives of these Rules are as follows:

(a)       The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protection intended by them

(b)       For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form part of larger documents like constitutions. Such bills include:

(i)        The African Charter on Human and Peoples’ Rights and other instruments (including protocols) in the African regional human rights system.

(ii)       The Universal Declarations of Human Rights and other instruments (including protocols) in the United Nations Human Rights system.

(c)       For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.

(d)       The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the incarcerated, and the unrepresented.

(e)       The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi.

The right way to go therefore is for the IPOB and such other break-away outfits to humble themselves and toe the path ordained by our laws in seeking the enforcement of their entrenched right to self-determination which is by presenting an application for the enforcement of their legal right consecrated in the African Charter before the Federal High Court with the Federal Government of Nigeria [and its relevant institutions] as the defendant(s).

Ubi jus ibi remedium:

Ubi jus ibi remedium’ is a latin maxim which means where there is a right there is a remedy. The word  ‘Jus’ means the legal authority to do or demand something, and  the word ‘remedium’ means the right of action in a Court of law. Literal meaning of this maxim is that whenever there is a legal right, there is a legal remedy. It also expresses that there is no wrong without a remedy. In the leading English case of Ashby v. White (1703) 14 St Tr 695, 92 ER 126 , the Court forcefully pronounced that, “When the law clothes a man with a right he must have means to vindicate and maintain it and remedy if he is injured in the exercise and enjoyment of it, and it is a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal”. The maxim ubi jus ibi remedium is a principle of justice which is universally admitted. [See the case of Bello v. Attorney-General of Oyo State (1986) 5 N.W.L.R. (Pt. 45) 828. Invoking and applying this maxim of revered antiquity, the Nigerian Supreme Court [speaking through Fabiyi, J.S.C.] in the 2013 case of BFI Group v. BPE approved of this principle in these telling terms;

“Literally ubi jus ibi remedium means where there is a right, there is a remedy. It is said that the rule of primitive law was the reverse. Where there is a remedy there is a right. The court is enjoined to provide a remedy where a legal right is established. The court should look into the substance of the action rather than the form.”

What clearly emerges from a forensic analysis of the concatenation of the FREP Rules and ubi jus ibi remedium doctrine comes to this: once the Federal High Court affirms the existence of the legal right to self-determination of the Biafran agitators, the prayer seeking to compel the Federal Government of Nigeria [through all its relevant institutions] to conduct a referendum in the identified geographical space becomes the only legal remedy the court [in the entire circumstances] would pronounce in favour of such applicant(s). Indeed, the position of the law cannot be otherwise for ‘it is a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal’ [Ashby v. White]. To put it nakedly, where the legal right of self-determination exists, the legal remedy of referendum must consequentially be handy.

Building a new Nation:

It is understandable that major political stakeholders in the Nigerian project would not subscribe to or brook any process that would precipitate the disintegration of the Nigerian nation. This explains their consistent latching on the supposed “non-negotiability” of the nation’s unity. It is therefore imperative that all such stakeholders would roll up their sleeves to promptly diffuse the impelling influence(s) that has/have continued to fuel(s) the current separatist agitations. This requires sincerity of purpose and deliberate efforts at reversing the systemic injustices meted out over the years [by officials of the Nigerian State] against the citizens now resolutely crying “Biafra or death”. The steely resolve of the modern-day Biafran agitators represents a sad indictment on a system that has long thrived on inequity, tribalism, impunity and official discrimination despite lofty constitutional provisions proclaiming “federal character” as the state’s creed. And here, our President Muhammed Buhari must take blame for his 5% and 99% unguarded postulation. This odious old order must peremptorily be dismantled to give way to the establishment of a new Nigerian nation. With the emergence of a new Nigeria where leaders are accountable to citizens, no one tribe or religion is exalted above the other(s), job opportunities abound for our teeming youths, constitutionalism becomes the only state creed and our guiding lamp, rule of law reigns supreme and impunity red-carded, then separatist agitations would instantly lose their appeal to [and grip on] their current subscribers and the leaders of such separatist movements would run out of steam as they will lose relevance among their own adherents. This urgent demand for the enthronement of a new order has come to be cabined in the now favourite phrase of “re-structuring” by some stakeholders. Stakeholders must now firmly resolve to walk the talk so as to take this re-structuring mantra away from the realms of sheer rhetoric. If this much-touted re-structuring remains a hollow phraseology or empty sloganeering, it might only be a question of time and a new nation called “Biafra” would gain a space on the global map. Such would amount to a collective indictment on all of us. It means that we have failed ourselves [and posterity] for failing to protect our democracy as handed down to us by our forebears. May such a day never break in our nation’s history. We must now therefore set forth at dawn. That way, we will make the journey before dusk. In signing off this reflection, it is now fitting to end with the seasoned advice and prayer recommended by our own Anthony Cardinal Okogie. Hear him: “Nigerian leaders must wake up lest the ship of state sink. They must stop fiddling while the country is burning. So we pray: Grant, O Lord, that our leaders become wise, and that the wise become our leaders. Amen.”

Johnmary Chukwukasi Jideobi is a Criminal Defence Attorney based in the F.C.T. Abuja. He could be reached on: [email protected].