On 29 May 1999, General Abubakar, Nigeria’s military dictator, promulgated Decree No. 4 as Nigeria’s new Constitution. Notwithstanding its operation by Nigeria’s opportunist politicians and privileged elites, the decreed 1999 constitution is illegitimate because, it has neither been presented to a parliament for ratification nor to the general public by way of a referendum contrary to the African Charter on Democracy, Elections and Governance, Article 10 of which says:
‘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.’
A constitution cannot command the loyalty and respect of the people if it was not an act of the people. According to the Supreme Court of Canada in Reference Re Manitoba Language Rights [1985] 1 S.C.R. 721
‘…the Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptive restrictions of the powers of the legislative and government.’
Regardless, Section 2(1) of Nigeria’s decreed 1999 constitution says:
‘Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.’
Two legal doctrines challenge this constitutional assertion; namely, the Doctrine of Continuity and the Doctrine of State Recognition.
The Doctrine of Continuity
This doctrine holds that traditional title to land was not extinguished by the acquisition of sovereignty unless and until lawfully terminated by the new sovereign. Native title survived the acquisition of sovereignty whether or not there was recognition by the new sovereign. Mere change in sovereignty did not disturb existing rights.
The Yoruba have occupied their Homeland, continuously and uninterrupted since time immemorial. The Yoruba claim that they were present at the beginning of time when there was only the sky and water world (a claim now scientifically confirmed by Johnson BW & Wing BA, Comparing oxygen distribution of land and sea, Nat. Geosci. 13, 243-248, 2020). According to the Yoruba, Ọbatala was sent down from the sky with soil that he spread on the water to form the earth.
As confirmed by Amodu Tijani v Secretary, Southern Nigeria (the Apapa Land case) [1921] 2 AC 399, [1921] UKPC 80, the Yoruba have a legal title right to their land, Yorubaland. The Apapa Land case is the most important of the Privy Council's decisions on native title. Britain’s Privy Council determined that although the territory of the Lagos Colony had been ceded to the imperial Crown in 1861 under the Lagos Treaty of Cession, and the Crown thereby acquired allodial title to the land, the Crown held only a ‘limited right of administrative interference’ with the land and was required to pay compensation for using it.
The Supreme Court of Canada in Guerin v The Queen [1984] 2 S.C.R. 335 established Aboriginal title to land to be a sui generis right that had no equivalent. The Aboriginal Title was a pre-existing legal right, not created by the Royal Proclamation of 1763, by s. 18(1) of the Indian Act, or by any other executive order or legislative provision.
The High Court of Australia in the Mabo v Queensland (No 2) (the Mabo case) [1992] HCA 23, (1992) 175 CLR 1 recognised the existence of the Native Title in Australia. The court held that rights arising under native title were recognised within Australia's common law. These rights were sourced from Indigenous laws and customs.
Malaysia’s Shah Alam High Court in Sagong bin Tasi & Ors v Kerajaan Negeri Selangor (2002) set a national precedent by ruling that the Temuan enjoyed native title rights over their traditional lands. The appeal court later upheld the ruling of the High Court that the Temuan did have native title rights over their customary lands.
Judge Huber in Island of Palmas Case (United States v. The Netherlands) Perm. Ct. of Arbitration, 2 U.N. Rep. Int’l Arb. Awards 829 (1928) said:
‘…practice, as well as doctrine, recognises - though under different legal formulae…that the continuous and peaceful display of territorial sovereignty…is as good as a title…, so too, under the reign of international law…International law, the structure of which is not based on any super-State organization, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right…’
The law of ‘titulus est justa possidenti quod nostrum est’ (‘title is the just cause of possessing that which is ours’) applied to the Yorubaland. That law provides that, territorial sovereignty was capable of subsisting even when divorced from possession. The State with, is able to vindicate it before a Court of law, and recover possession of which it had in fact been deprived. Hence, territorial sovereignty, for example, did not exist over trusteeship territory (vide International Status of South-West Africa case, I.C,J. Reports 1950, p. 12).
Territorial sovereignty was, by its very nature, original. It cannot be derived from another sovereignty. Territorial sovereignty was not a transferable commodity. Rights that attach to a particular territory, such as, the Yorubaland, subsist even if the territory became part of a new State, such as, Nigeria. The territorial sovereignty of the Yorubaland is unquestionable and inalienable. International law entitled the Yoruba peoples the right to exit Nigeria as an exercise of their inherent territorial sovereignty.
International law recognises two types of sovereignty; namely, right of ownership (legal sovereignty), and jurisdiction and control (administrative sovereignty). The Apapa Land case confirms this dichotomy. Nigeria possesses only administrative sovereignty over Yorubaland, not legal sovereignty. A state may administer a territory even though sovereignty resides somewhere else other than in itself. For example, the Allies administered Germany after WWII even though the titles resided in Germany. Similarly, Britain administered the Yorubaland as part of its colony Nigeria even though the titles remained in Yorubaland. Nigeria is the administrative successor to Britain. Indeed, Nigeria was not sovereign until gifted a sovereignty by Britain on 1 January 1914.
The Yoruba have native title rights over their homeland;
i. The rights was not extinguished by Britain just because it established a new sovereign, that is, Nigeria, on 1 January 1914.
ii. The rights has never been lawfully terminated by Britain or by Nigeria, and it therefore continues to this day, and has not been disturbed by the mere change of sovereignty.
Thus, according to the Doctrine of Continuity, the Yoruba have a legal title to their land, which the sovereignty of Nigeria could not legally extinguish regardless of the claim in Section 2(1) of the Nigerian 1999 Constitution.
The Doctrine of State Recognition
According to this doctrine, a territory becomes a state when it was recognised by others. Oppenheim, the father of International Law, made the doctrine an international law.
RD Sloane. The Changing Face of Recognition in International Law: A Case Study of Tibet 16 Emory Int’l. Rev. 107, 117 (2002)
‘…an entity that lacks recognition by other states remains, in practice, a non-entity. This is because the inquiry into statehood reduces in practice to questions about whether an entity does or should enjoy the incidents of statehood; and these questions, in turn, depend on whether existing states choose to extend these privileges.’
L Oppenheim in International Law: A Treatise 71, at 125 (8th ed. 1955).
‘A State is, and becomes, an International Person through recognition only and exclusively.’
Recognition thus brings with it the acquisition of international personality, which enables the recognised state to enjoy the rights and privileges, and obligations provided by international law (see H Lauterpacht. Recognition of States in International Law. The Yale Law Journal 53:3, June 1944).
According to Article 7 of the Montevideo Convention;
‘…recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state.’
In the 1965 Restatement (Second) Foreign Relations Law, 104. Manifestation of Intention to Recognise, the American Law Institute (ALI) stated:
‘…Implied recognition may take place in a variety of ways by which a state manifests its intention to treat an entity as a state.
(2) The coming into effect of a bilateral international agreement between a state and an entity implies recognition of that entity as a state and recognition, as its government, of the regime that makes the agreement for it.’
The 1987 Restatement (Third) Foreign Relations Law 202. Recognition or Acceptance of States described recognition as an act,
‘confirming that the entity is a state, and expressing the intent to treat it as a state’.
In other words, recognition of a state was confirmed by ‘any act’ provided that it ‘implies the intention to recognise’. The ILC Special Rapporteur for unilateral acts (Rodrigues Cedeno) identified the conclusion of an agreement as an implicit act of recognition:
‘When a State…concludes an agreement with an entity that it has not recognized as such, it will be recognizing it from that point in time onwards …’
The 1888 Britain-Yorubaland Treaty exemplified the Doctrine of State Recognition. By this doctrine, Britain
i. accepted the Yorubaland State as the reality on the ground (Declaratory principle), and
ii. brought the fact of the existence of the Yorubaland State to the attention of the whole world (Constitutive principle).
The treaty that Britain signed with the Yorubaland on 3 July 1888 was an act that implied Britain’s intention to recognise Yorubaland as a state. The treaty was intended to have the force of international law, binding and enforceable. Pacta sunt servanda is applicable law articulated in Vienna Convention Article 26 as follows:
‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’.
Vienna Convention Article 29 says:
‘Unless a different intention appears from the treaty or is otherwise established, a treaty between one or more states…is biding upon each State party in respect of its entire territory’.
Britain recognised Yorubaland as a state with which it could enter into a treaty. The 1888 treaty established the boundary and frontiers of the Yorubaland State. The treaty imbued the Yorubaland State with an international character. The treaty bore the hallmarks of finality. The 1888 Britain-Yoruba Treaty remains in force today, and the sovereignty of Nigeria could not legally extinguish it regardless of the claim in the Section 2(1) of the Nigerian 1999 Constitution. Nigeria as Britain’s successor administrator of the Yorubaland State is bound by the 1888 Britain-Yorubaland Treaty.