Biafra: In peace or in pieces

By Mohammed Adamu

NOTE: I published the main body of this article first in the ‘MY TAKE’ Column of Peoples Daily under the title: ‘BIAFRA AND THE SECESSIONIS ‘RIGHT’ OF A ‘DEMOCRATIC MINORITY’’ (Dec 28, 2015); and which I revisited last year after I started this twin ‘Thursday Column’. Most of the criticisms that greeted the piece centred on what someone described as its ‘mischievous silence’ on the now universal principle of ‘self-determination’; the right especially by minorities in a state, to seek to be ‘self-governing’. Many erroneously believe this is a right absolute. I have, in this second ‘revisit’, expanded the ‘POSTSCRIPT’ to accommodate a brief  on the principle of  ‘self-determination’ side by side, still, with the more universally superior principle of defense of ‘territorial integrity’. Happy reading

  Is a Union sacred and inviolable?

Whether a constitutionally governed nation is to exist in perpetuity, sacred and inviolable even by the existential realities of irredeemable socio-cultural fault lines, is a matter for the conjecture of the jurisprudence of law and of morality. The question being: should a democratic society be presumed immune –legally-speaking or morally so- even from the rumbling dissent of self-determining minorities bent on opting out of the union? Does a part of a constitutionally governed nation- whether a state or a section of it- have a right to unilaterally, by whatever means, opt out of that union, to form another? Or should a President in a constitutionally governed society be constrained by law or morality –or both- to allow a part secede from the territory he is elected to govern? Will he be obligated –by the Constitution or by the universal laws of nature, or both- to fight to keep a union for which he was inaugurated to preserve, protect and defend? These questions have continued to agitate the minds of jurists and political theorists and there does not seem to be a single jurisprudential solution to the question of ethnic or other classes of minorities and their presumed right to self-determination or their duty of fidelity to an existing statehood to which they are fated by the circumstances of socio-political history to belong.

 Is ‘Might’ the only ‘Right?

Yet proponents of the ‘right’ of ‘might’ to willful self-assertion say that any minority section of a constitutionally governed nation can secede from an existing state it no longer desires to be part of, -if not by a constitutional process, then by ‘force’. Provided a seceding minority has the ‘will’, the ‘grit’ and the ‘fighting power’ to force its way out of the union; and provided thereafter it has the ‘might’ to defend its new sovereignty, -either  against the revolting anger of un-yielding irredentists or against potentially emergent new rebellions from its very own. But the reverse is also the case, that even as a MINORITY section of a democratic entity has recourse to the moral justification of the use of force to assert the right to self-determination, so does a democratic MAJORITY of a constitutionally governed nation have legitimate recourse to the use of force –if it can- to preserve the union.

Thus who is right between the majority fighting to preserve a union and the minority fighting to opt out of it, is to be located in who asserts the most ‘will’ and ‘firepower’ -and not in who has the moral justification or the legitimation of law. Any argument by an existing political order in favour of the ‘right’ –legally or morally- to preserve a union, is always concurrent with the arrogation by it of the ‘right’ to deny the seceding party its presumed ‘right’ to opt out. And the reverse is equally the case, that secessionists, in arrogating to themselves the presumed ‘right’ to willful self-determination, also tend to deny the ‘right’ of the existing political order to fulfill its constitutional obligation of preserving, protecting and defending the union. And so going by the doctrine of the ‘right’ of ‘might’, agitators of Biafra, to secede, must not only be able to outgun, or at least match the fire power of the State, it must be able also to enforce its breakaway. But going by the logic of those who insist that in all circumstances only ‘right’ should be ‘might’, no minority section of a constitutionally governed nation has the right to force its way out of a legal union except by the leave of the majority in that union through the due process of law and not on the sentiments of moral considerations.

The Lincoln perspective

Abraham Lincoln, the 16th President of the United State of America provided an excellent jurisprudential justification for the use of force to suppress any rumbling of undemocratic dissent that has secession as its ultimate goal. In line with it, no democratic minority has a right under the law to secede from a union consecrated by the Constitution. Lincoln came into office in 1861 by less than 40% of the popular vote and the advent of a republican administration had already created apprehension in some of the Southern slave-dealing states, who feared the new President would interfere with it. It was therefore clear that the secessionists had ulterior motives and were thus not to be pacified but confronted. And so Lincoln in his inaugural speech was to inform a shaky nation with a divided army that he was ‘prepared to fight a war to maintain the Union’. His argument being that ‘the right of a ‘democratic minority’ for self-determination cannot be exercised in override of the right of a ‘democratic majority’ which is constitutionally obligated to preserve and to protect the Union.

Lincoln, by the way,  did not derogate the right of the ‘minority’ to dissent –including its so called presumed right to seek to dismember the Union in order to create its own. But he said that the exercise of that delicate species of right was essentially lower in hierarchy than the right of a ‘democratic majority’ to preserve the union. Thus side by side with the right of a ‘democratic majority’, the right of a ‘democratic minority’ in any constitutional democracy cannot be higher than the passive extent allowed to it in the saying ‘the minority has only a say and the majority a way’. Said Lincoln in his Inaugural speech: “A majority held in restraint by constitutional checks and limitations … is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism”. Nothing can be more rational; especially given the systemic, concept-driven nature of today’s organised societies whereby people have chosen, strictly to live by the principle of the rule of the ‘majority’. To what avail will that principle of ‘majority rule’ be if any ‘minority’, at any time, and outside of the due democratic process, can choose to terminate the Union or to permanently alter and impair its constitutionally-prescribed configuration?

President Lincoln had also used the ‘doctrine of perpetuity’ to advance the argument that “in contemplation of universal law and of the Constitution” the Union of the states that made up the United States was “perpetual”; and that, that ‘perpetuity’ was necessarily implied even though it was not expressly stated “in the fundamental law of all national governments”.  And to that extent Lincoln felt justified and constitutionally legitimated to say to the secessionists “no state upon its own mere motion can lawfully get out of the Union”! Or as Jurgen Habermas wrote: “Being bound to the constitutional achievements and ideals of their predecessors, future generations remain un-free; for they are denied the opportunity to found their own constitution”.

 Oath registered in Heaven’

And although the Constitution, as Lincoln said “contained no prohibition of secession or enforcement language to preserve the Union”, it did specify an oath of office mandating the President “to preserve, protect and defend the Constitution” –which translates to the defense of the ‘territorial integrity’ of the State. And so in the true interpretation of ‘sovereign power’, “since the people had not vested the President with the authority to fix the terms of separation”, Lincoln was right to make “war the inevitable consequence of secession” and to declare himself “constitutionally unable to stop it”. And as he eloquently said, whereas the secessionists had “no oath registered in heaven to destroy” the union, he as President had “the most solemn one to ‘preserve’, ‘protect’ and ‘defend it’.”

Said Lincoln, even in the hypothetical scenario that the United States were ‘not a government proper’ but merely an association of states in the nature of ‘contract’, that contract could not be “peaceably unmade by less than all the parties who made it”; because, as he asked hypothetically, whereas “One party to a contract may violate (or)… break it, does it not require ‘all’ to lawfully rescind it?” The right of the Igbo or other ‘minorities’ to secede from a constitutionally governed Nigeria must be located in the complex hyacinth of these jurisprudential argument. And it is a right concurrent with –if not inferior to- the right of the democratic ‘majority’ to deny.

 

Postscript: Self- determination : ‘Right’ or Privilege

THE year 2000 United Nations Millennium Declaration in dealing with new demands for self-determination, conceded that right only to “peoples…under colonial domination and foreign occupation”. But international law generally -and most UN resolutions- concede that right also to ‘non-self-governing peoples (colonised and/or indigenous). Besides where a people lack representation by a state’s government such ‘unrepresented’ is said to become a ‘separate people’ entitled also to self-determination. Thus international law does not recognise ‘ethnic and other minorities as ‘separate peoples’ entitled to self-determination, except where they “are systematically disenfranchised by the government of the state they live in”. Nonetheless although even a “people” who suffer no disability can rely on their unanimity to desire and to seek self-determination, such unanimity without disability merely “strengthens their claim” without conferring on it right to self-determination.

The criteria for the definition of “people having the right of self-determination” was proposed during 2010 Kosovo decision of the International Court of Justice to consist of several socio-cultural factors not excluding ‘common suffering’ (colonisation, occupation, disenfranchisement, un-representation etc). But whether the right to self-determination is inferior or superior to territorial integrity is also at issue. In fact, according to the Helsinki Final Act of 1975, although “there is no contradiction between the principles of ‘self-determination’ and ‘territorial integrity’, the latter takes precedence” over ‘self-determination’. Admittedly the realist theory of international relations which insists that ‘territorial sovereignty’ is more important than ‘self-determination’ remains in conflict with ‘liberal internationalism’ which favours ‘self-determination’ over the defense of ‘territorial integrity’.

Allen Buchanan author of seven books on ‘self-determination’ and ‘secession’, is said to support ‘territorial integrity’ as a moral and legal aspect of constitutional democracy; even though he also advances a “Remedial Rights Only Theory” with three possibilities for secession: 1, where the constitution includes in it a right to secede; 2, where the state grants it the choice to secede or 3, where a people suffers certain injustices, for which secession is the appropriate remedy of last resort.” Many others insist that only “in cases of non-self-governing peoples and foreign military occupation (does) the principle of ‘self-determination’ trump that of ‘territorial integrity’. Secession within a single state they insist is a domestic matter not covered by international law. And although this is justified by Paragraph 6 of UN Resolution 1514(XV), which states that any attempt “aimed at partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter”, many erroneously say that this is inconsistent with Paragraph 2 of UN Resolution 1514(XV) which states also that “all peoples have the right to self-determination”. All people do yes, but subject to the fulfillment of certain conditions!

 

 

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