Those who seek to deny self-determination to the African peoples deliberately conflate self-determination with secession. Although the two processes have the same outcome, that is, the exit from a pre-existing state of a part of it, they are not at all the same as clearly distinguished in Article 20 of the African Charter.
Article 20.1 says: ‘All peoples 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.’ This clause is a non-secession clause. It implied a legalistic, non-violent path to the self-determination.
Article 20.2 says: ‘Colonised or oppressed people shall have the right to free themselves from the bonds of domination by resorting to any means recognised by the international community.’ This clause is a secession clause. It implied the use of arms to achieve the self-determination.
International law supports the African Charter position. International law bestowed self-determination on all peoples but regarded secession as applicable only in extreme circumstances. Secession was the last resort for ending oppression. Secession is not an entitlement under international law whereas self-determination is an entitlement.
The conflation of the two separatist processes – self-determination and secession - arises because self-determination was generally conceptualised as independence from an external colonialist power. Therefore, to all intent and purposes, once independence was achieved, self-determination was done. Any attempt by any group to leave that independent entity therefore was construed as inexplicable and inexcusable, and designated to be an insurrection, a secession. Indeed, any attempt to leave an independent state was subconsciously perceived as an ingratitude, both internally and externally. The colonialists, and their successors, cloaked the independent state with the façade of ‘territorial integrity’ to be maintained at all costs, and by all means.
The African Union (AU) Charter Article II.1:
‘The Organization shall have the following purposes: c) To defend their sovereignty, their territorial integrity and independence…’.
AU Charter Article III:
‘The Member States, in pursuit of the purposes stated in Article II solemnly affirm and declare their adherence to the following principles: 3. Respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence.‘
Cairo Declaration (1964):
‘Considering further that the borders of African States, on the day of their independence constitute a tangible reality. 2…all Member States pledge themselves to respect the borders existing on their achievement of national independence.’
UN Friendly Relations Declaration (1970): Principle (f): The principle of sovereign equality of States:
‘In particular, sovereign equality includes the following elements: (d) The territorial integrity and political independence of a State are inviolable…’.
The aforesaid reasoning is illogical in the context of Africa however because all African countries were created by Europeans and not by Africans. By an agreement reached in Berlin in 1885, European countries carved out Africa amongst themselves. The European-drawn borders were defined not to reflect ethnic or linguistic heritage, but to accord with the economic desires of the Europeans. The Europeans created Towers of Babel, countries with multi-ethnic populations. They split and distributed indigenous mono-ethnic nations into separate political entities. When the Europeans agreed to leave Africa in the 1950s and 1960s, they also established in their wake international organisations, such as the International Court of Justice, that froze African countries in their pre-independence jurisdictions.
The ‘consent of the governed’ is a widely accepted norm of governance. Those subjected to a set of laws ought to have a role in their formulation. Those within a geographically defined border ought to be the ultimate source of legal and political power within that border. But the European colonialists neither sought nor obtained the consent of the Africans when they created the country borders. Successor African rulers too have not consulted their citizens on this matter. Agitation for self-determination in Africa must be viewed in this context.
It also is to be noted that the Friendly Relations Declaration included a very important caveat: territorial integrity was sacrosanct only if the State conducted itself ‘…in compliance with the principle of equal rights and self-determination of peoples…’. In other words, a state that denied a people their right to self-determination forfeited protection of its territorial integrity under international law. Nigeria has not fulfilled its duty ‘to respect’ and ‘to promote’ self-determination for the Yoruba people. Nigeria by this failure forfeited the right to protection of its territorial integrity.
Africa is big enough to accommodate Yorubaland as a new nation. Africa: land mass 30.4 million kmsq; 54 countries; 1.3 billion people. The US fits into Africa more than 3x. The UK fits into Africa more than 120x. The USA, China, India, Europe and Japan combined fit comfortably. More than ample room for Africa to have more than 55 countries!
90 of the 195 UN member states have population of less than 10 million. 21 of 56 Commonwealth member states have population of less than 1 million. 35 of the 54 African countries have population less than that of Lagos. Nigeria with 200 million people could comfortably breakup into many viable states.
AU Constitutive Act 2000, Article 9:
‘The functions of the Assembly shall be to: 1(c) consider requests for Membership of the Union.’
AU Act Article 29.1:
‘Any African State may, at any time after the entry into force of this Act, notify the Chairman of the Commission of its intention to accede to this Act and to be admitted as a member of the Union.’
The AU Act does not define what it regarded as a ‘State’ or who could request for membership for that state. But by Article 9 and Article 29.1, the AU Act clearly anticipated that there could, and would, be requests from new states in the future, and that there was an obligation on the Assembly to consider applications for membership from these new states. The AU Act clearly anticipated that self-determination would be a source for these future requests for Membership.