Nigeria’s external legal vulnerabilities -Baasegun @ Ilana Clubhouse 27.04.22
There is no set formula for dissolving a country. What is clear though since the 1990s, is that external catalyst was a necessity in almost every instance of a country breaking up. So, how do we Yoruba get this external catalyst?
Nigeria is a formidable opponent with a 62-year head start. The world knows Nigeria. The world does not know the Yoruba or Yorubaland. Yet the Yoruba generate 75% of Nigeria’s annual wealth. Between 1952 and 1959, the Yoruba competed and matched the best in the world for development – free primary education, free health care for the young, building a skyscraper and Olympic stadium and having the first television station in Africa. By the 1850s, the Yoruba had produced the first Anglican Bishop for West Africa as well as British-trained doctors, journalists, and lawyers. Recognising Yorubaland as a nation, Queen Victoria in 1888 signed a treaty of friendship with the Alaafin of Oyo as Head of Yorubaland.
Nigeria’s 200 million population opens doors in Brussels, London, Paris, and Washington, and intimidates other African countries into acquiescence - just ask Benin Republic and Kenya. Islam attracts comrades in arms to Nigeria from Saudi Arabia to Libya, from Morocco to Pakistan. Nigeria has money, albeit borrowed money, to bribe and to cajole; to silence Chinese, Russian and Western media, and press; to inure presidents and prime ministers the world over to human rights abuses; to donate to the Taliban of Afghanistan. These are the odds that the Yoruba must surmount to bring the world to our side.
Nigeria is a product of distant or non-neighbour colonialism. In 1914, the British forced together disparate ethnic nations into the country Nigeria, on the principle of ‘robbing Peter to pay Paul’. The 1914 Amalgamation of Nigeria was aimed primarily at robbing Yorubaland of her resources. The British engineered and trained a dependent group, the Hausa/Fulani, to be their heir and proxy, and made them the dominant group. The British rigged both the 1959 census and elections to perpetuate the Hausa/Fulani dominance. It has not been possible since independence in 1960 to use internal political means to alter that gerrymandered dominance. Therefore, we have to exploit Nigeria’s external vulnerabilities as our catalyst; as precipitator for actualisation of the Yoruba Nation.
1. Nigeria’s nation status is vulnerable to enforcement of the 1888 treaty.
In the 1888 Great Britain-Yorubaland treaty, the British agreed to preserve for eternity the sovereignty of the Yoruba Nation. The treaty established between the parties, a trade agreement, the object of which was to develop Yorubaland, and a defence pact, the object of which was to protect the Yoruba Nation. Included in the treaty was consideration, or quid quo pro, of ‘a yearly dash’ to be paid to the Alaafin. That consideration also made the treaty a contract separately legally binding on the signatories. The treaty was gazetted in London on 23 July 1888 as ‘Oyo and Yorubaland Treaty with Great Britain, Trade, Non-cession of Territory, etc’. On 16 June 1890, the Governor of the Lagos Colony confirmed in writing the treaty’s ratification by the British monarch and a payment of £31.5s was scheduled to be paid to the Alaafin.
The 1888 Great Britain-Yorubaland contract/treaty has not been rescinded or modified since it was signed. It could therefore still be enforced by any Yoruba man/organisation in the British courts, despite the passage of time. The British have not renounced or terminated the treaty. There has been no ‘material breach’ by either side. The treaty has never been impossible to perform. It still is not impossible to perform. The change of circumstances caused by subsequent 1914 Amalgamation provides no ground for terminating or withdrawing the 1888 treaty. The Alaafin of Oyo was not consulted before, or when, Lugard proclaimed the Amalgamation. The Alaafin was not consulted during the negotiations for Nigeria’s independence.
Although provisions of the Vienna Convention on the Law of Treaties (23 May 1969) do not apply to ancient treaties, the Convention nevertheless was codification of international law as it existed in time past. The Convention defines a treaty as ‘an international agreement concluded between states in written form and governed by international law’. The 1888 Great Britain-Yorubaland treaty was a written agreement between two sovereign states, that is, Great Britain and Yorubaland. The agreement was subject to international law. What the British courts would be asked to determine is whether Yorubaland was a nation in 1888. If Yorubaland was then a nation with its own defined borders, it would still be a nation now.
2. Nigeria’s nation status is vulnerable to annulment of the 1914 Amalgamation.
On 1 January 1914, Lord Lugard used ‘Letters of Patent and other instruments’ provided to him by the British government to proclaim the amalgamation of different ethnic nations to form the country Nigeria. The British government deliberately used legal instruments they intended to subvert the will of parliament. The British parliament had in 1865 outlawed acquisition of new territories as well as relinquished West African territories including Lagos. The Lugard Proclamation of 1 January 1914, which ignored all that, was prerogative power: ‘a power recognised by the common law and exercised by the Crown… on advice’ of the Prime Minister. The British statute law is superior to the prerogative. Also, parliament could create powers by statute that are in nature like prerogative powers. In other words, if the British parliament had been asked, it could have provided Lugard with the proper legal instruments. The British government did not ask because it knew parliament would not give its consent.
The prerogative is subject to the common law of fairness and reason. Therefore, any Yoruba man/organisation could ask the British courts to declare the Lugard Proclamation to be of no legal effect and as a result, discharge Yorubaland from the 1914 Amalgamation. The Case of Proclamations (1610) held that ‘the king hath no prerogative, but that which the law of the land allows him’. The Supreme Court in its 2019 decision on the Parliament Prorogation case confirmed this ancient law. what the British courts would be asked to determine is whether the Lugard Proclamation unlawfully bypassed the will of parliament. If it did then the Proclamation of Amalgamation would be null and void.
The Yoruba were not consulted and were not willing participants in the 1914 Amalgamation. In 1880, only the Colony of Lagos, and perhaps the Lagos Protectorate, were British territories. In 1914, Great Britain did not have jurisdiction over the entire Yorubaland. Lugard wrote in 1914 that the British Colonial Office had no ‘clear idea as to what jurisdiction could legally be exercised by the crown’. Amodu Tijani v Secretary of Southern Nigeria, Appeal Cases (AC) 399 (1921), 401 is authority that despite any ceding provisions that may be contained in a treaty with the natives, an Oba like Dosumu of Lagos, did not have absolute or customary authority to cede his people’s land to the British. Yorubaland did not jurisdictionally belong to Great Britain on the day on 1 January 1914. It could not legally belong to Great Britain after the amalgamation.
On 18 May 1900, Great Britain signed with Tonga a friendship treaty that was identical to the 1888 treaty. The Tonga agreement remained in place until independence, which took place on 4 June 1970, was agreed by the treaty signatories. Indeed, Great Britain used the treaty to protect Tonga against German and United States incursions. Yorubaland was treated differently because Yorubaland was primarily a cash cow to the British.
3. Nigeria is vulnerable to jurisdictional powers of the courts of other countries too.
Any international company that caused harm to a person in Nigeria could potentially be sued in tort in their country of origin. Any British or American company that caused harm in Nigeria could be sued in tort in London or Washington for the harm caused. Tort means a wrongful act, intentional or unintentional, which resulted in injury or harm. The principle is that one persons’ unintentional action, which caused injury or harm to another, could create the basis for compensation.
For example, markings on a bullet casing found at Igboho’s house after Nigeria’s attempt to assassinate him on 1 July 2021 revealed that the bullet was manufactured in the Czech Republic. The Czech company did not sell the bullet to Nigeria to use to assassinate innocent people. However, the Czech company knew or ought to have known from Nigeria’s track record that the bullet could indeed be used for unintended purposes (ie principle of foreseeability). The Czech company sold the bullet to Nigeria regardless and is therefore liable to be sued in Prague for compensation by a Yoruba man/organisation resident in the Czech Republic.
How it affected the Yoruba man/organisation is this: Igboho was the leader of their self-determination campaign. Using mega rallies as his tools, Igboho successful made the masses aware of their right to self-determination. Igboho mobilised them to proclaim ‘Yoruba Nation! No going back!’. The Igboho mega rally campaign was ended abruptly when Nigeria attempted to assassinate him using the Czech bullet. That is the harm done to the Yoruba man/organisation by the Czech bullet for which the Yoruba man/organisation could seek substantial damages in the Czech Republic courts. The Czech Civil Code (NCC) s2904 provides for liability for such coincidence.
Igboho was later found by a Nigerian court to be the innocent victim of state-sponsored attempted assassination, and he was awarded punitive damages against the government. A Czech court awarding damages against the errant Czech company, would set the ‘precedent’ and put Nigeria’s other arms suppliers on legal notice. This could dissuade others from selling arms and other materials to Nigeria that Nigeria could use to maim or kill ethnic Nigerians who seek self-determination. Tort cases like this would make the plight of the Yoruba frontpage to the outside world, and it would make Nigeria a pariah state.
Conclusion: Nigeria has existed on illegality since 1914 when the British fraudulently amalgamed the different ethnic nations. This illegality has caused the Yoruba to suffer the most. All is not lost, however. The instruments of illegality are susceptible to British justice and that we must pursue in earnest.