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BIAFRA: IPOB solicitor responds to Prof. Ben Nwabueze on ‘impossibility of achieving Soveriegn Biafra via Court’

Emeka vs Nwabueze

 

ON BIAFRA QUESTION:

YOU ARE VERY WRONG, PROFESSOR NWABUEZE, WITH DUE RESPECT:


Emeka Emekesiri, Solicitor for Indigenous People of Biafra, replies to Professor Ben Nwabueze on the Biafra self-determination struggle by legal method.
My attention has been drawn to a statement credited to Professor Ben Nwabueze SAN in the Sun Newspaper of 7th August 2016 with a caption “Biafra impossible through Court”. Let me reproduce the relevant questions and answers:

Question: Going back to the Biafra agitation, there is on one hand a section of the agitators who prefer to toe the line of constitutional means, which you have just suggested to achieve their demands. According to the report, they have gone to court to seek intervention in their struggle for self-determination. There is yet another group which believes in violent protest to achieve the same goal. Which of these two options is more viable?

 Answer: I don’t believe in violent method. I don’t think it will pay off. It has not paid off in the past. The secession of Biafra for three years didn’t bring any dividend to us. Agitation by means of court action I do not think also will achieve the purpose. If you go to court, what do you expect the court to decide in a case like this? Will the court tell you that you have the right to self-determination? What is self-determination? That is a very ambiguous term. If you go to court to say you want self-determination, let’s assume they grant you the right to self-determination, how do you enforce it? Due process or constitutional process is not really about going to court. There are internal and constitutional processes that can force a change.

 Question: In what way? Could you define that constitutional process?


Answer: There are many of them. There are many processes that can be used to force the hands of government. Impeachment is one of them”.

I make this reply in my capacity as the Solicitor for Indigenous People of Biafra with the conduct of the Suit No FHC/OW/CS/192/2013 between Biafra and Nigeria in the Federal High Court Owerri. I would have ignored this statement published by the Sun Newspaper but considering that it was alleged to have come from Professor Ben Nwabueze SAN, the Eminent Professor who taught us law in the University, who was reported to be the brain behind the 1979 Constitution of Nigeria imposed on us by the military junta, I have decided to reply with utmost respect to show my learned friend where he has erred. Of the two methods, violent method and legal method, he said that he did not believe in the violent method but again did not also believe that Biafra could be achieved through the court. This is the thinking of many Nigerian lawyers and politicians. Professor Nwabueze reasoned as follows: “Agitation by means of court action I do not think also will achieve the purpose. If you go to court, what do you expect the court to decide in a case like this? Will the court tell you that you have the right to self-determination? What is self-determination? That is a very ambiguous term. If you go to court to say you want self-determination, let’s assume they grant you the right to self-determination, how do you enforce it?” Let me now respond to Professor Nwabueze’s statement:

 

  1. First of all, I must bring it to the attention of the whole world and to the Judges of the International Court of Justice that Professor Nwabueze of Nigeria has biased the mind of the Judge who must have read the Newspaper by now. My clients are those who have chosen the legal method of agitating for self-determination instead of violent protests as the Newspaper reported. Professor Nwabueze’s statement is prejudicial to my clients’ case. His question,“If you go to the Court, what do you expect the Court to decide in a case like this?” shows the confusion that has enveloped the Nigerian Authorities over this case. The issues for determination are quite simple. Let me reproduce the issues for determination in court:

 

(1)  Whether the Indigenous People of Biafra who are the remnants that were not consumed in the Nigerian-Biafran war of 1967 – 1970 have the right to self-determination pursuant to Articles 19 – 25 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10, Laws of the Federation of Nigeria, 1990.

(2)  Whether the Claimants who identify themselves as Biafrans by indigenous identity are committing any offence by doing so contrary to any provisions of the Constitution of the Federal Republic of Nigeria 1999 or contrary to any provisions of the Criminal Code and whether it is a crime under any national or international law to mention the name of BIAFRA or for the remnants of the Indigenous People of Biafra who were not consumed by the war to maintain their indigenous identity as Biafrans with their native emblems and symbols as they do now even though they are Nigerians by citizenship and nationality laws; and if the answer is in the negative, whether the Defendants are justified to arrest, shoot and kill the children of the Claimants for identifying themselves as Biafrans by indigenous identity contrary to the rights of indigenous people as guaranteed by Articles 19 – 25 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10, Laws of the Federation of Nigeria, 1990.

(3)  Whether by the interpretation of Section 2 of the Constitution of the Federal Republic of Nigeria 1999 it is a crime for the Claimants and or the people of other ethnic nationalities held together in Nigeria against their will to exercise their right to self-determination by seeking for independence under the law as guaranteed by Articles 19 – 25 Cap 10 Laws of the Federation of Nigeria 1990 and the United Nations Resolution 61/295 of 2007 known as the United Nations Declaration on the Rights of Indigenous Peoples.

(4)  Whether it is lawful under the Constitution of Nigeria 1999 and under the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990 for the Defendants to hold the ethnic nationalities in Nigeria together by force against their will who now constitute the six geopolitical regions namely: South East, South South, South West, North Central, North East and North West, in a forced marriage akin to slavery contrary to their human and peoples’ rights of self-determination as there is no provision in the Nigerian law or international law that makes it a crime for a people to seek for freedom by the rule of law.

(5)  Whether the amalgamation of the peoples of the south and north by the British Government to form one country called Nigeria was with the consent and agreement of the indigenous peoples of the lands; and if the answer is in the negative, whether the Order-in-Council 1910 – 1913 made by the British Government to create Nigeria in 1914 was null and void ab initio for lacking legitimacy as it could not form the basis of the Nigerian Constitution thereby rendering the amalgamation invalid.

(6)  Whether by the Constitution of the Federal Republic of Nigeria 1963 which took effect on 1st October 1963 and remained in force until the midnight of 30thSeptember 1979 the Defendants were right to seize and confiscate the assets, properties, money, and all treasures belonging to the Claimants by promulgating the Abandoned Properties Act of 28th September 1979 while the 1963 Constitution was in force, being more than nine years after the war and after the declaration of “One Nigeria” while regarding the Claimants as Nigerian citizens but depriving them of their properties, money and assets; and if the answer is in the negative, whether the Defendants are still justified to withhold the said money, properties and assets belonging to the Claimants.

(7)  Whether the Defendants were justified to violate the International Humanitarian Law and the Laws of War known as the Geneva Convention 1949 (to which the Defendants acceded and ratified on 20th June 1961) by bombing the Biafran civilians, killing the Biafran civilians and using starvation to kill the children, women and the elderly of the civilian population of the indigenous people of Biafra in the war of 1967 – 1970 in order to win the war.

(8)  Whether the Defendants by registering Nigeria as a member of the Organization of Islamic Countries (OIC) in 1986 and licensing an Islamic Sharia Bank in Nigeria under the 1999 Constitution contrary to Section 10 of the Constitution of Nigeria have violated the Constitution and turned Nigeria into an Islamic country; and if the answer is in the affirmative, whether the Claimants have the right to dissociate themselves from the Defendants and refuse to be called the citizens of an Islamic country in the exercise of their right to freedom of worship, freedom of association and self-determination as a people.

The prayers following the issues for determination are as follows:

(a)              An Order declaring that the Claimants have the right to self-determination pursuant to Articles 19 – 25, Cap 10, Laws of the Federation of Nigeria, 1990, and are therefore free to exercise their unquestionable and inalienable right to self-determination to freely determine their political status and pursue their economic and social development according to the policy they have freely chosen.

(b)              An Order declaring that the ethnic nationalities that make up Nigeria are not held as slaves under Section 2(1) of the Constitution of Nigeria 1999 and therefore have the right of self-determination to decide their political status by the rule of law.

(c)              An Order declaring that the Defendants are liable to pay to the Claimants by way of compensation or reparation the present value of all the money, properties and assets of the Claimants seized by the Defendants pursuant to the Abandoned Properties Act of 1979 in violation of the Claimants’ right to own properties in any part of the country since the properties were not seized in wartime but nine years after the war based on the post-war discriminatory policies and laws made by the Defendants to suppress the Claimants from generation to generation.

(d)              An Order directing the Defendants to comply with the provisions of Article 20 (3) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990 and consequently give all assistance to the Claimants in the exercise of their right to self-determination.

(e)              An Order granting judicial protection to the Claimants, their homes, their offices and their correspondences individually and collectively as they exercise their right to self-determination and an Injunction restraining the Defendants, their agents and privies, from interfering, arresting, molesting, intimidating, disturbing, hindering or harassing the Claimants or doing any act or omitting to do any act aimed at frustrating the Claimants’ exercise of their right to self-determination which they have commenced by due process of the law.

(f)               An Order compelling the Defendants to release from its prisons and detention centres all indigenous people of Biafra who are agitating as pro-Biafra Movements for Independence of Biafra by peaceful means and to drop all charges of treason or treasonable felonies made against them and to release all their properties seized by the Defendants.

(g)              An Order affirming the Memorandum of Ohanaeze Ndigbo dated 28thJune 2012 submitted to the National Assembly for the restructuring of Nigeria into six autonomous self-governing regions, namely: South East, South West, South South, North East, North West and North Central, as a manifestation of the Will of the People in the exercise of their right to self-determination and directing the Defendants to present an Executive Bill to the National Assembly for a law granting autonomy and self-governing status to the six geopolitical regions in Nigeria; OR IN THE ALTERNATIVE, in the role of the Judiciary as the last hope of the common man, an Order directing the Defendants to present an Executive Bill to the National Assembly for a law dissolving Nigeria in peace along the compatible ethnic groups instead of allowing the country to break up in bloodshed.

(h)              An Order declaring that the Defendants by registering Nigeria as a member of the Organization of Islamic Countries (OIC) and licensing an Islamic bank under the Constitution of Nigeria 1999 have turned Nigeria into an Islamic country contrary to Section 10 of the Constitution of Nigeria 1999 and therefore the Claimants being Christians have the right to dissociate themselves from the Defendants and refuse to be called the citizens of an Islamic country.

  1. The Issue No. 1 is very clear. It is a question of law for the Court to answer. The law we quoted is the Nigerian Law, Cap 10 Laws of the Federation of Nigeria 1990. It is not ambiguous unless Professor Nwabueze does not understand it. Let the Court answer YES or NO. Is Professor Nwabueze saying that the question is too difficult for the Nigerian Judiciary to answer? There are 8 questions for the Court to answer. Are the Nigerian Judges and Lawyers no longer learned men? All we want is YES or NO. We know what to do with the answer whether it is YES or NO.
  1. On the second part, Professor Nwabueze wondered how we would enforce the Order assuming the Court says YES. He thinks like many other Nigerian lawyers that I have encountered. Professor Nwabueze and all our Law Lecturers taught us in the Law School that declaratory remedies were not enforceable because there is nothing to enforce. I don’t want to argue with them, but let the Court say YES and watch how we can enforce a declaratory order. Many Nigerian lawyers have been asking me to tell them how we intend to enforce a declaratory order if the Court says YES but I have refused to tell them. Please, let the Court say either YES or NO and leave the rest to us. If they think that declaratory order is not enforceable, why are they afraid to make the order?
  1. There are other issues for determination and prayers as contained in the originating summons. The Restructuring of Nigeria into six self-governing regions which Professor Nwabueze and other men are canvassing for is contained in the Prayer (g) as follows:

“An Order affirming the Memorandum of Ohanaeze Ndigbo dated 28th June 2012 submitted to the National Assembly for the restructuring of Nigeria into six autonomous self-governing regions, namely: South East, South West, South South, North East, North West and North Central, as a manifestation of the Will of the People in the exercise of their right to self-determination and directing the Defendants to present an Executive Bill to the National Assembly for a law granting autonomy and self-governing status to the six geopolitical regions in Nigeria; OR IN THE ALTERNATIVE, in the role of the Judiciary as the last hope of the common man, an Order directing the Defendants to present an Executive Bill to the National Assembly for a law dissolving Nigeria in peace along the compatible ethnic groups instead of allowing the country to break up in bloodshed”.

  1. The fact is that the Defendants have no other choice. They have changed their lawyers three times since this case started because the case is too hot for them to handle. The Defendants have been given many options and they must choose one. The Biafrans want to exercise their right to self-determination. They want freedom either within Nigeria as a self-governing nation within a nation just like Scotland or total freedom outside Nigeria. The Claimants shall decide how they will exercise their right to self-determination. The law we have quoted says it explicitly as follows:

Article 20:

  1. 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.
  2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.
  3. Article 20 actually defines the meaning of self-determination by saying that:“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”. The clear meaning is that the indigenous peoples of the land have the right to decide how to exercise their right to self-determination. The law says that the right to self-determination is unquestionable and inalienable. This means that it is classified among the fundamental human rights which are inalienable. There is no voting in a referendum to decide whether the people have the right to self-determination or not. The law says they have the unquestionable and inalienable right to self-determination. The only referendum is for the people to decide how they will exercise that right. My clients are divided into two parts: One group wants Freedom within Nigeria while another group wants Freedom outside Nigeria. The greatest joy is that all of them want FREEDOM. Let the Court answer that simple question of law whether my clients have the right to self-determination or not, then my clients shall decide among themselves by a referendum how they will exercise that right.
  1. If the Nigerian Judiciary agrees with Professor Nwabueze that the question of law is too difficult for the Nigerian Judges to answer YES or NO, then let the Court say that the question is too difficult to answer. The ICJ in The Hague shall be happy and willing to interpret the law and provide the answer.

Signed:

Emeka Emekesri, Esq.

Solicitor for Indigenous People of Biafra

Mekadolf Chambers.

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