‘FG was Complicit in Ceding Bakassi to Cameroon’

The story of how Nigeria ceded the Bakassi Peninsular to Cameroon, is yet to be fully told. It was a legal battle which took both countries to the International Court of Justice at The Hague (ICJ), and one which Nigeria sadly lost, as a result of which a full local government area in Nigeria was excised to Cameroon. Mrs Nella Andem-Ewa Rabana, SAN, FCI  Arb who as the then Attorney-General of Cross River State was a member of the Nigerian legal team that went  before the ICJ narrates to Onikepo Braithwaite and Jude Igbanoi the challenges and obstacles, that mitigated against Nigeria at the ICJ. She also shared her views on the advancement of Arbitration in Nigeria, why women empowerment is a fundamental right, and the raging national debate on APC’s Muslim-Muslim Presidential ticket

The Nigerian Bar Association just concluded a rancour free and fair election of its national officers. What would be your advice to the incoming Y.C. Miakyau-led Exco, especially on how to keep up the momentum of the outgoing Executive as the voice of the people?

I would advice the new administration to maintain the momentum of the NBA in its reaction to societal issues, without fear or favour. The NBA under the new leadership, should be mindful to listen to the yearnings of her members, and provide leadership by speaking truth to power at all times. The NBA should continue to defend and promote the rule of law, by supporting public interest issues. The current administration has performed commendably in this regard, and the new administration should strive to improve on this legacy, by introducing innovative initiatives and strategies that will foster diverse opportunities for continuous engagement with the legal community, in order to assess and address needs and issues as they arise. This will make the NBA, even more vocal and ready to undertake more public interest cases for Lawyers and the general citizenry. 

You had the rare privilege of being the first African female to address the International Court of Justice aka World Court (ICJ), one of the six principal organs of the United Nations, as counsel, when you were Attorney-General of Cross River State, leading the Nigerian team there in the Bakassi/Cameroon case. Kindly, tell us a little bit about the case and share that experience with us. Why did you feel that Nigeria should have declined the jurisdiction of the ICJ in that case? Nigeria lost the case to Cameroon at the ICJ, and subsequently, a whole local government, Bakassi was lost. With hindsight, why and how did Nigeria lose that case, despite the array of legal luminaries on your team, like late Chief Richard Akinjide SAN, and some others?

Indeed, it is a rare privilege to be the first African female to address the International Court of Justice (ICJ) as Counsel. However, what I find intriguing is the fact that so long after the judgement and the aftermath of that judgement, the amount of misinformation and outright ignorance of the facts is simply unbelievable. I therefore, jump at every opportunity that presents itself, to share a few basic truths about the role Nigeria played in the ceding of Bakassi to Cameroon.

My view has always been that, the Federal Government of Nigeria, was complicit in the ceding of Bakassi before and after the Arbitration at the ICJ.

In 1975, the Federal Government of Nigeria jointly declared the Maroua line as being the international boundary between Nigeria and Cameroon. By this singular act, Nigeria provided Cameroon the opportunity to lay claim to a territory, which for all intents and purposes, had always been part of Nigeria thereby ceding part of the Efik kingdom from Rio Del Ray to Akpayefe (Akwayefe).

Notwithstanding the fact that subsequent Heads of State refused to ratify the 1975 Maroua Treaty, the Federal Government wilfully submitted to the jurisdiction of the International Court of Justice (ICJ), without invoking its power to rely on the optional clause as contained in Article 36 of the ICJ Statute. This provision makes the submission to the jurisdiction of the ICJ optional. Nigeria failed to borrow a leaf from Israel, U.S.A, and the U.K, who have consistently refused to submit to the jurisdiction of the ICJ in matters that affect or threaten their national interest, sovereignty, national security and defence. 

It should be noted that despite Nigeria’s knowledge of the fact that Taslim Olawale Elias who had been Attorney-General and Chief Justice of Nigeria, before becoming a Judge and President of the International Court of Justice, had publicly stated as President of the ICJ that Bakassi belonged to Cameroon. Despite all of this, the Federal Government maps, especially those of the Department of Petroleum Resources reflected the international boundary between Cameroon and Nigeria as being the Maroua line, thereby implementing and enforcing the Maroua line as its international boundary, Nigeria still went ahead to submit to the jurisdiction of the ICJ when it could have refrained from doing so.

Without weighing the odds, especially given that there is no right of appeal from the International Court of Justice, Nigeria publicly undertook to abide by the judgement of the court, whatever the outcome.

By submitting to the ICJ jurisdiction, Nigeria had only two opportunities to challenge aspects of the judgement of the ICJ, to wit:

• Within six months of the ICJ decision, the Court may be invited to interpret an aspect of its decision. In my humble view, Nigeria ought to have applied for interpretation of the aspect of the judgement which dealt with the plebiscite of 1961, since the issue of the Bakassi people’s right to self-determination had never been resolved. The judgement was silent on whether or not Bakassi participated. Yet, Nigeria failed to exercise that right.

• Within 10 years from the date the judgement was delivered, Nigeria was at liberty to exercise its right of revision of the judgement based on fresh facts which could not have been within its knowledge, and which were not canvassed at the proceedings (Article 61 of the Statutes of ICJ). Nigeria, yet again, refused to take advantage of this opportunity, and consequently, forever shut out the prospect of challenging the rationale or basis of the ICJ judgement.

As Attorney-General of Cross River State at the time, I could not have led the Nigerian legal team which had not only instituted a preliminary objection, which was denied, before I joined the team. If there was anything Nigeria did right, it was in its assemblage of renowned international law experts such as Ian Brownley QC, Chief Richard Akinjide, Prof Ayua, Prof Chukwura, etc. I joined the team in 2000, long after Nigeria preliminary objection was filed and lost. 

In my view, for as long as we had a choice not to submit to the jurisdiction of the ICJ, Nigeria ought to have refrained from submitting to that court’s jurisdiction, especially when the President at the time was French.The legal arguments by Nigeria were sound enough to allow the Otti posidieties principle to be successfully invoked, to preserve Nigeria’s maritime boundary.

Kindly, share your thoughts on the APC Muslim-Muslim Presidential ticket? 

=I think a Muslim-Muslim ticket, is rather insensitive and unfortunate. Ordinarily, the choice of candidates should be predicated on vision, capacity, character, antecedents, where tribe and religion should not be a factor. However, these are extraordinary times. We are in a season where leaders need to pay particular attention to the agitations and interests of the people they wish to serve. They should have a listening ear, to hear the heart beat of the people. Equitable and fair representation is imperative in a mutli-ethnic, multi-religious nation, where tensions are high. In my opinion, ignoring the mood and representation needs of the diverse peoples of Nigeria, is clearly a red flag, indicating the scale of our ‘democratic-fibre’, and the inability to delicately navigate the current turbulent waters when choosing a Vice Presidential candidate, is an error.

As a Fellow of the Chartered Institute of Arbitration, would you say Arbitration has impacted negatively on oral advocacy in Nigeria? How can the profession maximise the best of both ADR and litigation, especially as ADR does not seem to have been fully accepted in Nigeria? Why is it that most agreements, even the ones involving local parties, never seem to choose Nigeria as the seat of Arbitration. Are the trust issues that have trailed the Nigerian Judiciary, been extended to Arbitration here too? 

As a Fellow of the Chartered Institute of Arbitration, I do not see how Arbitration would in any way negatively impact oral advocacy. It rather enhances it. Practice is dynamic and constantly evolving new trends; Arbitration brings more depth and content to advocacy skills, techniques and style. The profession can maximise the best of both ADR and litigation, if our courts subtly insist on enforcing ADR clauses in contracts as the first step to dispute resolution, before a fresh matter is brought before it.

Moreover, given that some matters are best suited for arbitration, you find that commercial Lawyers generally include ADR clauses as part of their Dispute Resolution provisions in contracts.

The choice of other jurisdictions predominantly over Nigeria, may not be statistically correct. Usually, when the transaction involves nationals of other countries, they tend to prefer a more “neutral” forum, but I am reluctant to accept that trust issues may have affected Arbitration in Nigeria.

As a matter of fact, although the practice of arbitration in Nigeria came later, there are still people who consider litigation a taboo, and would attempt to resolve all disputes through traditional mediation by tradition rulers. Therefore, Arbitration may not be prevalent because of the level of awareness.

Only recently, the NBA commissioned the NBA Institute of Continuing Legal Education and the Human Rights Institute. It is my expectation that the Institute of Continuing Legal Education will include in its curriculum, Arbitration and Litigation as multiple skill sets which are available to Lawyers, and educate them on how they can take advantage of these processes in practice. 

What do you think must be done to secure the independence of the Judiciary, aside from an upward review of salaries and conditions of service of judicial officers? 

As a senior Lawyer and Life Bencher, I place the highest premium on the independence of the Judiciary, to safeguard the rule of law and the future of the legal profession.

The only way to secure the independence of the Judiciary, is to adhere strictly with  the provisions of the Constitution as it relates to the powers of the National Judicial Council, especially with regard to Judiciary funding, appointments and removals of judicial officers to the exclusion of all forms of interference of the Executive and Legislative arms of government. Any violation of the provisions of the Constitution, especially Sections 81(3), 162(9), 158(1) 292 (1)&(2), results in the violation of the fundamental principle of separation of powers and automatically compromises the independence of the Judiciary, wherein the ability of judicial officers to discharge their constitutional duties without fear and favour is impaired.

You once ran for office for Deputy Governor in Cross River State, albeit unsuccessfully. Have we seen the last of you in politics?  

As the saying goes, “Never say Never”.

What is your advice to women who aspire to political office, and also to the rank of Senior Advocate of Nigeria and President of the NBA in this male-dominated environment? 

My advice to women, is to aspire to break whatever glass ceiling they are confronted with when seeking to achieve whatever life ambition they are pursuing. Whether it is for political office, the rank of Senior Advocate of Nigeria, or even to become President of the NBA , the first step is to put it before their God, then prepare, plan and go for it. Without sentiment, but with diligence and resilience, I believe any qualified woman can vie for any position and get it with the right mind set, capacity, determination, focus and genuine social networks and support system.

As a Council member of the National Human Rights Commission, how would you say the rights of women are being promoted or protected?

If the outcome of the most recent Constitutional amendment exercise is anything to go by, we noted that out of 68 bills seeking amendment, all five gender equality bills were rejected. It clearly shows that, until we ensure the mainstreaming of women issues in the formulation and implementation of all policies and programmes, we are paying lip service to the 35% affirmative action we seek and profess.

I see the empowerment of women as a fundamental right which should not only be promoted, but entrenched. We readily recognise violation of women’s rights when we are confronted with acts of violence against women, yet denial of empowerment opportunities is often times not recognised as a human right obligation; and the Commission is designing awareness programs and initiatives to enlighten communities, but also legislators and other stakeholders.

Nigeria seems to be at one of its lowest ebbs at the moment. Chapter II of the Constitution, that is, the Fundamental Objectives and Directive Principles of State Policy, seems to be in abeyance. How well would you say this administration has done in achieving its three main campaign promises which are part and parcel of the said Chapter II, that is, fighting insecurity and corruption and revamping Nigeria’s economy? 

It is no news that all is not well in Nigeria, especially in the areas of security, development and the economy. There is no magic wand that can be deployed, to solve the myriad of problems now blatantly manifested in all facets of human endeavour. For any positive change to occur, there must be the political will, the courage to confront and accept the truth, and the humility to fear God and put service above self.