Plaintiff v The Federal Republic of Nigeria

Plaintiff 

@Baasegun & Others?

Defendant 

The Federal Republic of Nigeria is a member state of the Economic Community of West African States (ECOWAS). 

Relief sought 

The Plaintiff seeks the following 

         (a) A declaration that the military coup d’état of 15 January 1966 illegally and unlawfully abrogated rights guaranteed to him under the Nigeria independence agreement in contravention of Articles 10, 13 and 24 of the African Charter on Human and Peoples’ Rights. 

         (b) A declaration that the military coup d’état of 15 January 1966 illegally and unlawfully abrogated rights guaranteed to him under the Nigeria independence agreement in contravention of Articles 5,10,14 and 23 of the African Charter on Democracy, Elections and Governance.

         (c) A declaration that violation of rights guaranteed to him under the Nigeria independence agreement will be continuing and ongoing unless and until Nigeria is returned to the independence agreement.          

         (d) An order awarding him damages of US$ 5,000,000 (five million United States dollars) as compensation for the violation of his rights.

The facts

Representatives of the three regions of Nigeria, namely, Eastern, Northern and Western, at the Lancaster House Conferences, negotiated Nigeria’s independence from the British, which was eventually achieved on 1 October 1960. The agreement reached by the three regions guaranteed that each region would govern and develop at its own pace, distinct and separate from the others. However, on 16 January 1966, Nigerian army officers in a bloody coup d’état in which Chief Akintola, the Premier of Western Region was murdered, abruptly terminated that agreement. There then followed a series of military dictatorships.

There were 8 military dictators in all, of which 7 were from Northern Nigeria. All but two of the Northern military dictators carved states out of the 3 regions of Nigeria without seeking agreement from the regions. The states were carved out by the Northern Generals as follows: General Gowon 12 states, General Mohamed 19 states, General Babangida 11 additional states, and General Abacha 6 additional states.

The Northern military dictators created the states to achieve political ends. General Gowon created states in the Eastern Region to make the Igbo a minority. Generals Mohamed, Babangida, and Abacha created states to achieve a numerical advantage for the former Northern Region over the Eastern and Western Regions, and to shift resources from the south to the north through the devices of quota system and ‘federal character’. 

The creation of states led to the formation of a fraudulent unitary federal system and internal colonization of Nigeria by the Northern oligarchy. It has introduced unfair and inequitable treatment of Nigerians of the Eastern and Western Regions compared with Nigerians of the Northern Region. It had impeded the rapid development that was taking place in the Western Region by draining its resources.

Plaintiff’s submission

The military committed a felonious offence on 15 January 1966. The bloody insurrection contravened agreements by the ECOWAS states contained in the African Charter on Democracy. The military illegally tore up the constitutional arrangements agreed upon by the three regions.

The illegal military intervention of 15 January 1966 unlawfully abrogated and denied the Plaintiff his right to freely associate with others in the entity called Western Region as guaranteed by Article 10, and provided for in the pre-1966 trilateral agreement. Two rights are implied in Article 10, namely, a ‘constitutive’ right to associate with others of ones choosing and a ‘purposive’ right to bargain collectively with other groups. The Plaintiff has been compelled against his legal expectation to join states created illegally by the military.

The illegal military intervention of 15 January 1966 unlawfully abrogated and denied the Plaintiff his right to freely participate in the government of the entity called Western Nigeria as guaranteed by Article 13, and provided for in the pre-1966 trilateral agreement. The military dictators abolished the Western Region and imposed fraudulent constitutions, and consequently, abrogated the Plaintiff’s right to access the public services and property of the entity called Western Nigeria.

The illegal military intervention of 15 January 1955 unlawfully abrogated and denied the Plaintiff his right to a general satisfactory environment favourable to his development as guaranteed by Article 24, and to the development of the entity called Western Nigeria.

Constitution of the Federation of Nigeria 1960

Section 2: The Federation of Nigeria shall consist of Regions and a Federal territory.

Section 3: (1) There shall be three Regions, that is to say, Northern Nigeria, Western Nigeria and Eastern Nigeria.

(2) Northern Nigeria shall comprise those parts of the former Protectorate of Nigeria that on the thirtieth day of September, 1960, were comprised in the Northern Region of Nigeria.

(3) Western Nigeria shall comprise those parts of the former Colony and Protectorate of Nigeria that on the thirtieth day of September, 1960, were comprised in the Western Region of Nigeria.

(4) Eastern Nigeria shall comprise those parts of the former Protectorate of Nigeria that on the thirtieth day of September, 1960, were comprised in the Eastern Region of Nigeria.

(5) The Federal territory shall comprise those parts of the former Colony of Nigeria that on the thirtieth day of September, 1960, were comprised in the Federal Territory of Lagos.

African Charter on Human and Peoples’ Rights (2005)

ARTICLE 10: 1. Every individual shall have the right to free association provided that he abides by the law.

2. Subject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association.

ARTICLE 13: 1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

2.     Every citizen shall have the right of equal access to the public service of the country.

3.     Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

ARTICLE 24: All peoples shall have the right to a general satisfactory environment favourable to their development.

African Charter on Democracy, Elections and Governance (2007)

Article 5: State Parties shall take all appropriate measures to ensure constitutional rule, particularly constitutional transfer of power.

Article 10: 1. State Parties shall entrench the principle of the supremacy of the constitution in the political organization of the State.

2. State Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum.

Article 14: 1. State Parties shall strengthen and institutionalize constitutional civilian control over the armed and security forces to ensure the consolidation of democracy and constitutional order.

2. State Parties shall take legislative and regulatory measures to ensure that those who attempt to remove an elected government through unconstitutional means are dealt with in accordance with the law.

Article 23: State Parties agree that the use of, inter alia, the following illegal means of accessing or maintaining power constitute an unconstitutional change of government and shall draw appropriate sanctions by the Union:

1. Any putsch or coup d’Etat against a democratically elected government.

5. Any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government.

Court jurisdiction:

The Court has jurisdiction in this case. The Court was established as a sub-regional international Court in 2001 pursuant to Articles 6 and 15 of the ECOWAS Revised Treaty.

Musa Saidykhan v The Republic of Gambia (Suit No.: ECW/CCJ/APP/11/07) established that the ECOWAS Court in the exercise of its human rights jurisdiction was not fettered by the fact that the ECOWAS protocols have not been domesticated. The court held:

‘ECOWAS is a supra national authority created by the Member States wherein they expressly ceded some of their sovereign powers to ECOWAS to act in their common interest. Therefore, in respect of those areas where the Member States have ceded part of their sovereign powers to ECOWAS, the rules made by ECOWAS supersedes rules made by individual Member States if they are inconsistent. The Revised Treaty of ECOWAS was ratified by all the Member States of ECOWAS... this Court is the offspring of the Revised Treaty; and this Court is empowered by the Supplementary Protocol on the Court of justice, which is part of the instruments of implementation of the Treaty and has the same legal force as the Treaty, to adjudicate on issues of human rights arising out of the Member States of ECOWAS. Therefore, it is untenable for a member state of ECOWAS to claim that a matter is essentially within its domestic jurisdiction when it had expressly or by necessary implication granted ECOWAS powers to act solely or concurrently with national jurisdiction in respect of that matter.’

The competence of the Community court of Justice in applications filed by individuals arises from articles 9(4) of the 1991 Protocol and 10(d) of the Supplementary Protocol on the Court of Justice. These provisions enable an individual to access the Court directly in human rights issues, and give the Court the competence to entertain such applications.

Article 9(4) provides that the Court has jurisdiction to determine cases of violation of human rights that occur in any member state.

Article 10(d) provides that access to the Court was open to individuals on application for relief for violation of their human rights.

Valentine Ayika v Republic of Liberia (Suit No.: ECW/CCJ/AAP/07/11) established that there was no need for exhaustion of domestic remedies to apply to the CCJ.

Article 24(4) of the Supplementary Protocol required each member state to establish a competent national authority to be responsible for the enforcement of the court's decisions in accordance with their own rules of civil procedure.

Chief Ebrimah Manneh v The Republic of The Gambia (Suit No.: ECW/CCJ/APP/04/07) established that a Plaintiff whose rights have been infringed was entitled to an award of monetary compensation.

Admissibility:

The case is admissible. The violation of the Plaintiff’s rights is ongoing. The Plaintiff fulfils criteria established by Alhaji Hammani Tidjani v Nigeria and 4 Others (Suit No.: ECW/CCJ/APP/01/06),

(i) that there is a right recognized by the African Charter on Human and Peoples’ Rights;

(ii) that this right has been violated by the Defendant;

(iii) that there is no action pending before another international Court in respect of the alleged breach of his right; and

(iv) that there was no previously laid down law that led to the abuse and breach of his rights.

If you are a Yoruba lawyer, who believes in Yoruba self-determination, or you are an other, who believes that Nigeria should be dissolved, this putative ECOWAS court case provides you with an opportunity to pursue your belief. This is a job for patriots. You will not be paid for doing this. Dissolution of Nigeria benefits you too. Contact me if you are interested. I am happy to be the coordinator for this legal action.