Former Attorney General and Minister of Justice, Prince Bola Ajibola has said that Nigeria lost the Bakassi Pennisular because it had a bad case from the onset.
Ajibola who was among the judges that ruled on the pennisular at the International Court of Justice, the Hague said even though he gave a dissenting judgment, he believed Nigeria’s acquiscence implied that the land actually belonged to Cameron.

He also recommended a separation of the office of the Attorney General of the federation from that of the Minister of Justice.
Excerpts

Is it constitutional for the executive to cede Bakassi to Cameroon without ratification by the National Assembly?
When you talk of constitution, you refer to the constitution of a nation. When you talk of Bakassi Peninsula, you are talking of a matter that has gone to international realm. You are talking of a matter that has been sealed off by the International Court of Justice (ICJ). You are talking of a judgment already given with that particular area of the country. And therefore, while you think that the constitution of a nation is supreme in that country domestically, that is not a matter that could override any situation that is sealed off internationally.

That means once the judgment is given by the International Court on a matter like Bakassi, whatever may be the situation of the constitution of our own country, which is purely procedural, the constitution is not saying you should never cede Bakassi to Cameroon. It is only saying when you get into that situation, follow the provision of section 12 and carry out the procedure aspect of it and make it so.

That is what the constitution is saying. But the position of Bakassi as far as International Court of Justice is concerned, is that sovereignty of peninsula belongs to Cameroon. That was decided on the 10th of October 2002. The problem we are talking about is not problem of the international law. We are only talking about the constitution and its procedure in putting this thing in place. That is all that we are discussing. If I have to tell you more about Bakassi, I must make it clear to you that the problem started from the time of our independence in 1960.

The situation was clearly this: at that time, because of the plebiscite conducted in that area, Britain was ruling the Southern parts of Nigeria and the Cameroon. But long time before then, in 1913, there was the Anglo-German agreement that made the entire Bakassi part of the territory of Germany at that time. And that German territory eventually passed to France and France passed it on to Cameroon, hence the idea that Bakassi belongs to Cameroon. And that was on the 11th March 1913.

Therefore, when independence came, what Nigeria had was the whole of the country minus Bakassi Peninsula. That was recognised from our end here because there is a note verbal that went to Cameroon as far back as 1962 from the then Foreign Minister of Nigeria, Aja Wachukwu that said ‘Of course, we are aware that Bakassi is part of Cameroon’. It was so clearly said by our foreign minister then. But that is not all, if you look back into the map of Nigeria from the time of our independence up to 1993, we have always ceded that area to the Cameroon. The map was drawn by our Surveyor General of the Federation. It was during the advent of this litigation at the International Court of Justice that a kind of redrawing started coming up.

Let me give you a picture of Bakassi in order for you to understand what I’m about to say. To the East of Bakassi is Rio Del Ray Channel that goes right up from the south. To the West here, which is close to Nigeria, is Aquayafe Channel. That one empties itself into our Atlantic Ocean just like Rio Del Ray. Thus, if Bakassi was part of Nigeria, our boundary would have been in Rio Del Ray on the East between Cameroon and Nigerian border and then, the entire Bakassi would have been part of Nigeria.

But as far back as 1970, we had the Yaoundé Declaration between Nigeria and the Cameroon. What did you find there? The boundary stated tracing its route into Aquayafe not Rio Del Ray, accepting and conceding the fact that Bakassi belongs to Cameroon. It was not done only once, it was done twice. There is also 1971 Declaration, which also continued to trace that route through the Channel of Aquayafe. That was not the end of it. In 1975, we had the Marwa Declaration, which took the route straight into the sea.

The Marwa Declaration ceded the peninsula absolutely to the side of Cameroon because it went to point X and G later on. From the land mass into the sea, it was very clear that Bakassi is not part of Nigeria, even at that time. That wasn’t all, people like us have spent quite a lot of our time and lives in this matter. I have been on with this matter for the past 20 years. When I was there as Attorney General and Minister of Justice, as far back as 1985, I noticed that we’d asked for legal opinions before my time from people like Professors Vallat and Matins in Europe. And they had at one time or the other told us that Bakassi belongs to Cameroon. At that time, our Minister of Justice and Attorney General made a clear pronouncement that agreement is an agreement and must be honoured and respected.

In relating this to what we call uti pocidetis, which means keep things as they were during the colonial era, the map they have drawn, the boundary they have given us; just keep it that way. That was done in 1963 – 64 by the then Organisation of African Unity (OAU). If you then relate that to the fact that since 1913, this line had been so drawn, you will then see our position clearly that our case was very weak.

Is the National Assembly then wrong to say the matter ought to be referred to it before Bakassi was ceded to Cameroon?
National Assembly is not wrong, that is why I said procedurally. Now coming home, the National Assembly has to go by its own procedure in complying with the judgment. It is based on that that we now got the Green Tree Agreement. And this agreement said it all: Give us time to clear out and let us do this and that. Even with all that too, the judgment of the court made it abundantly clear that Cameroon must protect the interest of the inhabitants in that area. So, by virtue of the judgment of the court, the inhabitants must always be cared for. They must always be protected. Their rights there are unassailable. That is also there.

Some people argue that Nigeria made a mistake by going to court. Why did we go in the first place?
Some people have always told us that we shouldn’t’ have gone to Cameroon; that we did the wrong thing by going to The Hague. That was a silly talk. We’re asking or looking for Cameroon to go to The Hague. Cameroon dragged us to the ICJ. It is a compulsory declaration that we have made to that court (ICJ) that we are ready and willing to go into litigation with whoever wants to go into litigation with us, if they themselves are ready to go into litigation by their own voluntary declaration. That locked us in with Cameroon because if Cameroon did what we had done before that time. In 1963, we filed in our discretionary declaration, while Cameroon did its own in 1994.

In 1975 states creation by the government, Cross River was created and Bakassi Local Government was also created. How do you reconcile this, knowing full well that Bakassi belongs to Cameroon?
That is part of our internal misunderstanding of the situation. People with full and clear knowledge of our position vis-à-vis Bakassi would not have done so. Let me give you a tit bit picture of Bakassi itself, which is just like a pear, thin on top and big down. To the East of Bakassi, you have places like Isangini. The Cameroonians have some areas they occupied there on their own. The West is fully occupied by Nigeria – the entire West strip. We have been there for a long time. One must concede to Nigeria what I called the possessory title of that area, which is acceptable in international law too but not applied in this regard. What we then have there is what is called effectivite in international law. In order words, we are effectively occupying and living in that area administratively, socially and economically, to the extent that we have taken that area as part and parcel of Nigeria. So, de facto, we are occupying the very populous strip to the West, which has nothing to do with the East.

You must understand that the whole place is a peninsula. A peninsula is a land interlaced with water – land, water, land, water, like that. So, the barrier is there, which does not allow the inhabitants of the Eastern to come to the Western; and vice versa. Another thing is this: What are the people there looking for? Two things, a land for farming; the place is very rich and the river for fishing. They were not really clamouring for oil. The oil is quite there already but not in all that commercial quantity. People think the peninsula is very much of an oil rich area.

The oil there is for local and domestic consumption. So, the area being occupied by Nigeria at all the given times was that Western strip. The strip’s size is about a third of the entire area of the peninsula. The bulk of the area is middle strip, which is not occupied by anybody. So, that is the position before litigation. Nigeria tried to get out of the clutches of that litigation because the legal team filed application against that case in court, attacking and disputing the jurisdiction of the ICJ to entertain that case. But the court decided to hear the case and adjudicate on it.

At the end of the day, it was very clear that the court had been sufficiently fed of our own acquiescence and admission. We have voiced all the time that Bakassi belongs to Cameroon. Apart from the fact that they now found from the agreement of 1913 that at a time in an agreement between Britain and Germany, the whole place was left for Cameroon. That is clearly the position. So, what the court decided was not more than what some Nigerians had already decided upon and put across to the other side. And these are Nigerians in executive and authoritative positions to do all these things. That is the problem.

Some people are of the view that ICJ just gives ruling but cannot enforce it on any nation, hence Nigeria should not have abided by the ruling
First of all, you must accept the fact that we must abide by the rule of law, not only nationally but internationally. And because of that, we must surrender ourselves to the decision of the International Court of Justice. I give you a go example; when we concluded the case between Chad and Libya, it was on the 4th of February 1994, Aso Strip was given to Chad against the claim of Libya. Libya, with all its military might, was fully in occupation of Aso Strip at that time.

By March, a body was set up to ensure the implementation of the decision of the ICJ. Of course, Libya must accept the decision. Of course, it did and by the 30th of May 1994, that same year, Libya moved out of Aso Strip. The situation is clear. The United Nations, by its charter, has all the provisions to deal with disobeying nations. First, Article 25 of UN charter says: Every member of the UN must obey all the provisions of the charter. And the three main organs of the UN are the Security Council, the General Assembly and the International Court of Justice. And they have all said in that charter that the decision of the court is final and binding at all times. Having said so, all that we need to do in relation to the provision of the UN charter is to abide by that court decision.

But should we fail; the United Nations will be up against us to ensure that the implementation was carried out. Ninety-two per cent of all the decisions of ICJ have always been complied with. Others are just a matter of still looking for a way of settlement. So, invariably, countries round the world, who are members of the UN, which includes Nigeria, have always complied with the judgment of the court. It must always be implemented. If Nigeria fails to move out, a lot of things could happen. A lot of things uncomplimentary to the stand of Nigeria could happen. The UN may levy its sanction against Nigeria economically. They may even prevent some things coming into Nigeria. The UN will go from Chapter 6 to 7 of its charter. It could come out with so many things that will not be in the interest of Nigeria. Even, Cameroon may not wait for that. It may like to take possession of the territory instantly, hence seek cooperation, support and help from some other nations. And your guess is as good as mine.

It was said that Nigerian legal team was incompetent as it presented a weak case at the ICJ for they ought to have asked for a referendum to be conducted on the territory for people of Bakassi to decide where they wanted to belong. What is your view on this?
No, no, no, Nigeria did its best, arguing its case before the court. But having regard to what I will call a bad case, Nigeria had itself already bastardised its case before coming to court. That is the unfortunate point. Take for example, if Nigeria, from the beginning of this whole matter, had been linking its case with the 1883-84 Berlin Conference and the treaty signed by our kings and chiefs of old Calabar with the colonial masters at that time, perhaps it would have been a different thing entirely. But because our own colonial master happened to be Britain, who now signed this agreement with Germany the boundary issue came in and that was well drawn out in 1913. That was a very fatal one. It would not have been so fatal had it been that Nigeria itself had not been acting in consonance and in line with that 1913 agreement. We ourselves already believed in that agreement. That was the fatal aspect of it and because we believe in that argument we’ve been acting in consonance in line with.

You were one of the judges who ruled on the matter. Against the historical background related now, why did you give a dissenting judgment? Is it because you’re a Nigerian?
Even with all these, I have a very good justification doing so. Unfortunately, I was the only voice in the wilderness. My argument was this: our people have been living in Bakassi virtually from the 17th centurys from all I got from history of the treaty and the kings and the people of old Calabar. That came out from my argument. The map also came out of all that area which stretches even into the Indian River within Cameroon then. But what has happened? Our people settled there; they are inhabitants. The law also had always given respect to those inhabitants. They were fishermen and farmers. They soon settled. They have their homes and families.

They have lived their socio-economic lives in that area. Therefore, they have something there which we can call the possessory title. They have possession along the Western Strip that they have lived all this time and they ought to have been allowed to hold onto that area into Nigeria.
I also held firmly to one of the decisions of our chambers in the case of Burkina Faso versus Mali. I still remember vividly paragraph 257 of that judgment that says: “Although the legal title must be respected and accorded the ownership of any strip of land.” The legal title in this case has been decided in favour of Cameroon. But that judgment also said in that paragraph that, “The possessory title must be given a consideration.” That is the word ‘consideration’ that was not given to Nigeria in this regard. That Western strip, not the whole of Bakassi, should have been given to Nigeria. That strip has been occupied from time by Nigeria and the people have what is called effectivite on which Nigeria had held on to all this time. That was my point in my dissenting opinion that at least, such an area could have been left with Nigeria in that regard.

Whenever a lawyer is appointed as the Attorney General of the Federation (AGF) and Minister of Justice, he seems to be ostracised by the Nigerian Bar Association as it happened to you, Olu Onagoruwa and recently Bayo Ojo. What is responsible for this trend?
What I need to say, which is somehow partially reflected in our constitution, is that we seem to marry two independent positions into one. Therefore, there is a problem in trying to do justice to both positions at the same time. An Attorney General has his duties, obligations and responsibilities within the constitution and in law. Equally, a Minister of Justice has a role to play within its service to government. But at times there may be conflict in the two services. I think the time has come now to separate the office of the AGF from that of Minister of Justice.

The fact is this, whereas the Minister of Justice is minister of justice for the government to serve the government, the Attorney General is for the federation. That in itself is effected in our constitution. In other words, the AGF is like an ombudsman. He has the overall obligation to be fair and just and serve the entire nation equitably, fairly, justly and ensure the prevalence of the rule of law. So, the job of an AGF conflict with the assignment given to that chap called the minister of justice. The minister of justice is simply appointed to serve that given government of the day.

I ran into that trouble before in my time. I exercise my right as an AGF and Minister of Justice. That was not all that acceptable or complementary to the position of the government and I was called in and asked so many questions. So, that is the type of enigma that is involved in having those two appointments merged together into one. During the National Political Reform Conference of 2005, a committee was set up called Judiciary and Legal Matters Committee and I was asked to head that committee. In fact, eminent jury and former AGF and Minister of Justice, Abdullahi Ibrahim, was the chairman of that committee. We deliberated very serious and deeply on this issue and came to an irrevocable conclusion that these two offices should be separated. And that the man that would be called upon to serve as Attorney General must be a man of impeccable integrity, with maturity and good understanding, and even up to the candidate being a judge. In this way, he can independently serve that purpose and be given the independence of serving away from the dictate of any given government.

That man is called upon to serve the federation not the Federal Government. If you look at Sections 150 and 156 of the constitution, you will find this point clearly made there. Whereas the minister of justice is there serving the interest of Federal Government, the Attorney General serves the entire federation. I think it was a colonial heritage. We got it from our long practice of following what was left for us by our colonial masters. But what we should do is to keep to the separation. In some countries they have the AGF quite different from Minister of Justice.

If we have such AGF with such power and function adequate to deal effectively with what we should regard as justice for everyone in this country, he will stand over and above all prejudices whether political, social or economic considerations. He could be the one who ought to be over and above EFCC and ICPC as well as the police. The position should be so powerful and the function must be so heavy that he could say you must do this, you could do that. The kind of pseudo-judicial service is close to that, that he should be dispensing it fearlessly, justly at all time. We need such Attorney General, not the type we have now that merged the two together.

Why is it difficult to do this?
Then, let us amend the constitution. There is a very large list of things to be amended in that constitution. This one is one of it. It is no longer desirable to have the Attorney General still serving as a minister under the same government. It is a provision that should be taken care of.

In line with what you have said, can you x-ray the rule of law between 1999 and 2007?
That is what I have said. The error is in the lumping of these assignments together. It is very difficult for rule of law to function in this kind of dispensation that we have at the moment. Except of course that Head of State wants to enshrine and ensure that the rule of law reigns supreme in the country, if not, the rule of law will continue to be abused. And the Attorney General will be playing the role more of a minister of rather than being Attorney General. He could be a very good Minister of Justice but terribly poor Attorney General.