IS SELF-DETERMINATION UNCONSTITUTIONAL AND ILLEGAL?

IS SELF-DETERMINATION UNCONSTITUTIONAL AND ILLEGAL?

By

Femi Aborisade

The continued peaceful co-existence of peoples and societies internationally lies in the continued collective defence of universally recognised human rights. No room should be given for tyranny to triumph under the pretext of protecting ‘national interests’. It is at the background of this principled position that I wish to contribute to the debate on the constitutionality or legality of some states of the Nigerian Federation that have adopted own flags, anthems, and so on. Some leaders of the civil society have declared that such phenomena as states adopting independent flags and anthems are unconstitutional and therefore illegal. I wish to differ on the following grounds.

Under the Nigerian Constitution and under international human rights law, there is recognition of the right to the protection, promotion of the existence of national, ethnic, cultural, religious, and linguistic identities in individual geographic units. It is trite to state categorically that international law recognizes the right to self determination of peoples, contrary to the views that have been peddled to the contrary. What needs to be clarified is that there are two aspects of self-determination, namely: external and internal self-determination. It is the internal form of self-determination that international law recognizes. To my knowledge, the States of the Nigerian Federation that have adopted their own flags, anthems, etc, do so, not in an attempt to exercise external form of self-determination (that is not to secede) but in an exercise of the right to internal self-determination (that is to exercise the right to community or collective self-expression) within the Federal Republic of Nigeria.

Articles 1 and 55 of the UN Charter (that is UN Constitution) expressly recognize the rights of peoples to self-determination. The self-determination here is to be understood as internal self-determination. For the avoidance of any doubt, the UN Charter defines 'peoples' as a group of human beings, who may or may not comprise States or nations.

The verbatim provisions of the UN Charter and the African Charter are reproduced below.

Article 1 sub (2) of the UN Charter provides:

The purposes of the United Nations are:

(2). To develop friendly relations among nations based on respect for the principle of equal rights and SELF-DETERMINATION of peoples, and to take other appropriate measures to strengthen universal peace.

Also Article 20(1) of the African Charter, which has been domesticated, provides:

All peoples shall have the right to existence. They 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.

A basic requirement for membership of the international society of nations is acceptance of the aims and objectives of the Charter, which includes three main obligations with regard to human rights: respect, protect and fulfil. Any nation state that is not prepared to accept or accommodate the right to self determination is not fit to belong to the international society of modern nation-states.

I may appreciate the concern of those who condemn states’ initiative at expressing their unique identity.  It may be that they are concerned that Nigeria should not break up along ethnic lines. I share that concern because a breakup of Nigeria will not solve any of the social problems confronting Nigeria. A breakup may just result into a formal replication of the problems in the individual nation-states that may emerge. However, the recognition of the right to self-determination, whether internal or external, is recognition that no force can permanently hold a country together. The continued existence of Nigeria, based on the various component ethnic groups, can only be conditional, conditioned on recognition of fundamental human rights of individuals, peoples, and ethnic groups, their cultural, religious, linguistic and political rights. In a situation in which genocide is being committed with impunity on a daily basis, a consensus must be reached that those committing such mass criminal atrocities do not deserve to live in the community of the human race of the 21st century. Where it is becoming difficult to reach such a basic consensus, ultimate disintegration of Nigeria will be inevitable. It will not be a question of 'if' but a question of when and how? Though that would, unfortunately, be at huge costs.

Whatever happens, societies can only be taken forward by recognizing, advocating, respecting, protecting and fulfilling basic human rights. No organisation or individual who has had the opportunity of leading credible organizations that enjoy public confidence should support views or perspectives that could empower wielders of political power to suppress peaceful expression or exercise of preferences by individuals, communities, ethnic groups, states or 'peoples'.

The various leaders of the civil society organisations ought to continue to defend peaceful exercise of basic human rights, including the right to self-determination, where and when circumstances compel such choices. Therein lies the guarantee for the continued existence of non-state organisations.

We have to emphasis however that while self-determination struggles might become a necessity in certain contexts, it cannot on its own lead to the ultimate goal of emancipation for the poor class. Emphasis has to be placed therefore on the unity of the poor from various ethnic, religious, linguistic or racial backgrounds, against the oppressor class. Class solidarity is more useful than cultural or ethnic solidarity, in the final analysis.

15 August 2012