Indivisibility and Indissolubility of Nigeria:The Arrest, Bailability and Extradition of Simon Ekpa
Bola A. Akinterinwa
In every aspect of human life, there can be divisibility and dissolubility. I remember in ordinary level physics in the 1960s that an atom was said to be the smallest indivisible particle of a molecule. At the advanced level, the same atom that was not divisible at the lower level was said to be divisible and the example of uranium with an atomic weight of 239 was given divided fission. Apart from the sciences, the first Church of God on earth is the Catholic Church. It never wanted any division, but protests compelled division within the church. This was the origin of the Protestant Churches the world over, In fact, the history of many churches have shown that their growth and development are largely a resultant from internal crises.
International political history has similarly shown that several federations, unions of states, etc., have been dissolved for various reasons of force majeure. The cases of the former Soviet Union, Yugoslavia, Eritrea, etc. lend credence to this observation. The idea that national unity can always be enforced is more of a myth rather than of reality. National unity by force, even by manu militari, has always been resisted by use of counter-force. It should not be quickly forgotten that Ethiopia was vehemently opposed to the separation of Eritrea. The same is true of the separation of South Sudan from Sudan after many decades of intra-Sudanese squabbles. Today, the Free Orange Province is also reported to be asking for a separate sovereign state within South Africa.
The problem with this issue of indivisibility and indissolubility is firstly that they both constitute two sides of the same coin. If there is no division, there cannot be dissolution. Whenever there is division, it can engender dissolution but the dissolution may not be total. If a part of a country decides to be separated and it succeeds, it does not necessarily take out life from the remaining country or organization. Four countries, by December 31, 2024, will have withdrawn from the ECOWAS but the ECOWAS cannot but continue to exist, though as a weakened body. Nigeria now appears to be one country where its existential survival is now threatened by its constitutional provision of national unity by force.
Self-determination, Indivisibility and
Indissolubility
Self-determination in international law and relations necessarily negates the principles of indivisibility and indissolubility often provided for in Nigeria’s 1999 Constitution as amended. The Constitution stipulates in its preamble, first, that ‘We the people of the Federal Republic of Nigeria, having firmly and solemnly resolved…’; secondly that the people of Nigeria resolved ‘to live in unity and harmony as one indivisible and indissoluble Sovereign Nation; thirdly, that the indivisibility and indissolubility shall be under God; fourthly, and that the indivisibility and indissolubility of Nigeria as a sovereign nation under God shall be dedicated to the promotion of inter-African solidarity, world peace, international cooperation and understanding.
And perhaps more interestingly, the ultimate objective of having the 1999 Nigerian Constitution is to promote in the immediate ‘good government and welfare of all persons on the basis of freedom, equality and justice,’ and in the long term, to consolidate the unity of people of Nigeria. Most unfortunately, however, the Constitution is seen as very fraudulent because it says ‘We the people of the Federal Republic of Nigeria…’ It is argued that the people of Nigeria did not sit anywhere to discuss and negotiate the Constitution. Consequently the opponents of the Constitution are asking for a fresh constitution. The proponents are saying that, rather than contemplating the drafting of another constitution, controversial aspects of the constitution can be reviewed, or amended but not modification which has the potential to warrant a holistic re-writing. No government has shown interest in a new Constitution since 1999. What has always been done is review and update: three alterations in 2010, a fourth alteration in 2017, and the last in 2023. The five alterations have not pacified the opponents. It is still within this constitutional controversy that political governance is heightened by political chicanery and institutional corruption.
Agitations for separate autonomy by the Igbo and Yoruba ethnic communities are partly predicated by perceptions of unfairness, inequality, and injustice in the conduct and management of development affairs. There is nothing to suggest that Nigeria as a sovereign nation under God is receiving any meaningful attention because God is only interested in sinners that not only repent but that also refrain from further engaging in their iniquities.
The implication of this controversy raises the issue of constitutional legitimacy. For any government to be enforcing the provisions of a controversial constitution cannot but generate division in the polity. While this controversy lingers on, the international principle of self-determination does not help matters. In fact, the proponents of separation largely capitalize on it to strengthen their struggle.
Self-determination has been variously explained by scholars. Ordinarily speaking, it is determination of something by one self. In the act of determination, motivation is a major dynamic. Edward L. Deci and Richard M. Ryan in their book, Self-determination and Intrinsic Motivation in Human Behaviour, published in 1985, underscore the point that people are driven by a need to grow and gain fulfillment. Explained differently, growing and gaining fulfillment is a function of motivation which can be intrinsic (sense of self, arising from internal sources of motivation) or extrinsic (external sources, ranging from loans and grants, prizes, circumstantial realities, etc.).
Thus, self-determination is essentially about self-autonomy, being able to manage one-self by one-self, without foreign intrusion, on the basis of self-competence while still apparently and having a sense of belonging to other people. In this regard, autonomy, competence and connection or relatedness are theoretically considered as basic constituents of the principles of self-determination, especially as a concept in psychology.
In international relations, self-determination etymologically dates back to the time of the French Revolution (5 May, 1789 to 9 November, 1799) and American Revolution (19 April, 1775 to 3 September 1783), which underscored justice, liberty, and freedom as against any form of authoritarian rule. As explained by the Britannica, self-determination is ‘the process by which a group of people, usually possessing a certain degree of national consciousness, form their own State, and choose their own government.’
More importantly, ‘as a political principle, the idea of self-determination evolved at first as a by-product of the doctrine of nationalism, to which early expression was given by the French and American revolutions.’ What is noteworthy and relevant to the arrest, bailability, and extradition of Simon Ekpa is that self-determination at the end of World War I was recognized in the Fourteen Points of the US President then, Woodrow Wilson, as a requirement for maintenance of international peace and security.
Consequently, it became an important foreign policy objective and led to the disintegration of the old Austro-Hungarian and Ottoman empires, as well as the Russian former Baltic territories into new States. And more importantly, at the end of World War II, the UN Charter provides for the right of self-determination at two different levels: the State and the People. As provided in Article 1(2) of the United Nations Charter, one objective of the United Nations is ‘to develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.’ This is the first aspect of the meaning of self-determination dealing with people.
In the same vein, Article 55 of the UN Charter provides for the principle of equal rights and self-determination as instruments of achieving higher standards of living, solutions to international economic, social, health problems, and more importantly, as means of ‘universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
Most significant is the issue of non-self-governing territories provided for under Article 73 which have responsibility to administer dependent territories. The article in its paragraph (b) requires the Trust authority ‘to develop self-government, to take due account of the political aspirations of the people, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement. The provisions of Article 76 are not different. Thus what is clear from the foregoing is that self-determination is a right that belongs not only to the State, but also to the people.
Arrest, Bailability and Extradition
Explained differently, while the state, as a sovereign, has the right to self-determination in international relations, especially in terms of who to relate with, determination of how to govern itself, etc., the people who are under Mandate and Trust systems also have the right to self-determination. The problem in this case, however, is that the principle of self-determination only applies to the dependent territories. This implies non-applicability to people within existing sovereign States, as it is the case with Nigeria and the agitations of the people of Biafra in Nigeria.
Without doubt, the United Nations does not want dismemberment of the constituent parts in the Member States of the organization, in spite of the existence of the principles of self-determination. Additionally, the principle of uti possidetis juris, that is, the principle of sanctity of inherited colonial frontiers which the Organisation of African Unity adopted in its Charter in 1963 and which has also been upheld in the Constitutive Act of the African Union, is not at all helpful to the agitations for self-determination. It is against this background of the right of the state to maintain territorial integrity and the right of the people to self-govern that the issue of Simon Ekpa should be explained and understood.
First, the Finnish Criminal Code provides for terrorist offences under which Simon Ekpa has been charged. He has been charged for engaging in terrorism-related offences, like contributing to violence and crimes against civilians in South-eastern Nigeria and financing terrorism in between 23 August, 2021 and 18 November, 2024 in Lahti, a town in Finland.
Secondly, some Igbo people are claiming their right to self-determination under international law, while the Government of Nigeria is similarly claiming the right to ensure indivisibility and indissolubility of Nigeria. Who should have the right of priority? The problem is made complex by the engagement of both Government of Nigeria and agitators for self-determination in their use of terror. While the arrest of Simon Ekpa might be lawful, Nigeria’s interest in his extradition to Nigeria raises different issues. Should Simon Ekpa have been arrested in Finland bearing in mind that the lieu of offence is not Finland? Various conventions on anti-terrorism call for international cooperation on the need to jointly nip terrorism in the bud. Finland may be protected here, more so that Simon Ekpa is also a Finnish.
Is there any extradition agreement between Finland and Nigeria? The spirit of extradition is largely explained by mutual support which is manifested in the obligation to either prosecute or extradite the offender. The offender can only be tried for the crime allegedly committed and not for any other offence on the basis of the rule of specialty. Grosso modo, there are four main principles on which extradition is predicated: principles of reciprocity, double criminality, double jeopardy, and specialty.
In terms of reciprocity, whatever is done by an extraditing State should be reciprocated by the demanding State in the spirit of mutual international support. Double Criminality principle simply means that the offence for which an offender or convict has been arrested in the country of the offence must also be an offence in the country seeking the extradition of the suspect. The offence must be common to the criminal codes of the host and requesting States. The principle of double jeopardy, otherwise known as the principle of non-bis in-idem, simply means that a suspect that has been tried and punished cannot be extradited to be tried and punished again for the same offence for which the person had already been tried.
In light of this, is Simon Ekpa really extraditable being a citizen of Finland? Generally countries hardly extradite their own citizens for offences committed in the requesting state. This is because such countries want to exercise their sovereign rights over their own citizens Besides, extradition requests are hardly granted for political offences. In fact, religious and military offences like desertion, disobedience of higher officials’ orders are not extraditable. Consequently, the conditions for the extradition of Simon Ekpa to Nigeria are difficult.
In other words, the arrest of Simon Ekpa in his second country, Finland, the refusal of the Finnish authorities to grant him administrative bail and the reported request of the Nigerian government for his extradition can be objectively explicated within the framework of the foregoing international principle of self-determination, and Nigeria’s constitutional provisions of indivisibility and indissolubility of Nigeria.
Without whiff of doubt, Simon Ekpa is a Nigerian-Biafran. He was born into Nigeria by Nigerian parents, and therefore, he is a Nigerian by both ius soli (place of birth) and ius sanguinis (blood descent). Today, he is contesting his Nigerian nationality by ius soli by struggling for a Biafran nationality. Apart from being a Nigerian, he also has the nationality of Finland. He is an acknowledged Finnish politician. He was accused of ‘spreading terrorist propaganda on social media’ in 2021 in Lahti, Finland. He was arrested on November 21 by the Finnish law enforcement agents and remanded in custody by the district court of Päijät-Häme.
More important, the Finnish government said Simon Ekpa had instigated violence and incited terror in Southeast of Nigeria which has prompted Nigeria’s demand for his extradition to Nigeria. The problem is that spreading terrorist propaganda is considered a crime in Finland and the offence is not bailable, as explained by the Finnish authorities. As his trial has been scheduled to take place in May 2025, Simon Ekpa has to be under incarceration until then.
Mikko Laaksonen, a Senior Detective superintendent in Finland said the offence committed is not bailable. In his words, ‘our procedure is based on, depending on the case, remand or travel ban as coercive measures for limiting the freedom of movement for persons suspected of offences to which such measures are applicable.’ This position is much appreciated by the Nigerian military which sees it as a major progress in the anti-terrorism agenda in Nigeria.
In this regard, it is important to note that self-determination is not simply a struggle but majorly an idea which is indestructible. The wiping out of the whole of Gaza has not succeeded in stopping Gazans that are still living to want to return to their destroyed homes. The Catalan Independence Movement, as a socio-political movement has been fighting for more than three hundred years for independence from Spain. The oppression and suppression of the Spanish government have not stopped the Catalan agitations for autonomy. The war of disgruntlement in Sudan started in the 1950s. It was only on 9 January, 2005 that a Comprehensive Peace Agreement, known as the Naivasha Agreement, could be signed by the Sudan People’s Liberation Movement and the Government of Sudan. The agreement ended the Second Sudanese Civil War. It was on this basis that a timetable for the Southern Sudanese Independence Referendum was set. Consequently, there is the need to learn lessons from the experiences of other countries. It is very myopic to continue to insist on a controversial constitution which provides for indivisibility and indissolubility of Nigeria. In law and on paper Nigeria is indivisible and indissoluble. In practice there is nothing that cannot be dissoluble and divisible. It is, at best, a function of political will. Where self-determination has not been peacefully accepted for negotiation, agitators have always resorted to use of force. Force will then beget force. People know when to start a war but do not know when and how to stop it. In fact, beginning a war is easier than ending it. Government should therefore explore direct dialogue with the separatists, explore more of diplomatic soft powers. The situational reality of life in Nigeria is inclement and cannot sustain any war.
Explained differently, can the arrest of Simon Ekpa by the Finnish authorities put a stop to the agitation for a sovereign state of Biafra? What really is the threat of an agitation in southeast of Nigeria to the Finnish people in Europe? Nnamdi Kalu, the leader of the IPOB, is under trial in Nigeria, but his incarceration has not stopped violent agitations for separation. Simon Ekpa will expectedly be added to the list of wanted people to be prosecuted. Is this a solution to the quest for national unity in Nigeria? In fact, the arrest of Simon Ekpa has generated the condemnation of Finland by some American observers. The Nigerian military sees the arrest as a major achievement for Nigeria. Are the IPOB and Simon Ekpa really terrorists in the sense of the Al Qaeda and even the Boko Haram? Is the refusal of the Finnish court to grant Simon Ekpa bail an achievement for Nigeria? Answers to these questions will not put a stop to agitations. Consequently, how can advocates of self-determination, who are internationally recognized as political agitators, be considered as terrorists? If Nigeria led the whole of Africa in rejecting the consideration of liberation movements in southern Africa as terrorists by the United States under President Ronald Reagan, why should the Nigerian government expect the international community to believe that Simon Ekpa and members of the IPOB are terrorists? One man’s liberator is another man’s terrorist.
