“Without a right of secession, there is no peoples’ right of self-determination”. But: “If the right of self-determination included automatically the possibility of secession, there could not be any right of self-determination”.
By Nkongho Felix Agbor Balla*
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| Nkongho Felix Agbor Balla |
The complexity of the right to self-determination is self-evident if one takes a critical look at the implementation of the right to self-determination from its inception up till date. The reason being that self-determination cuts across law, politics and history. Thus when it comes to implementing the right to self-determination, it becomes a herculean exercise; it becomes more of rhetoric than practice. Analysing the right to self-determination is like opening a ‘‘veritable pandora’s box’’, because in all the nooks and crannies of this planet, there are calls for the right to self-determination.
To those clamouring for self-determination like the Southern Cameroonians, Kurds, Palestinians etc., the right to self-determination is considered a sacrosanct right breach of which is tantamount to violation of the fundamental rights of a people. On the other hand, to the States wherein the various groups or peoples claiming a right to self-determination exist, they are considered as disgruntled and dissatisfied citizens who want to change the status quo. To these States the principle of territorial integrity is considered very important hence any change of the territorial set up is unthinkable.
Do Southern Cameroonians have the right to secede?
The answer to the question of whether or not the Southern Cameroonians have a right to secession can only be seen in the light of reasons advanced to justify a claim to secede. There is no gainsaying that the right of secession exists in exceptional circumstances. Most of the arguments advanced by legal scholars as reasons for secession are most often than not political and philosophical. Thus in this article, in trying to prove that the Southern Cameroonians have a right to secession, I will not limit my analyses solely on the legal arguments, but I will extend it to include the political, philosophical and historical reasons for secession. The reasons advanced by most secessionist groups vary a lot. However, there are some common justifications that might be advanced for calls for secession. The reasons include the following: human rights violations, cultural protection and preservation, redress of historical wrongs, the right to secession as a legal right, the need to escape from discriminatory redistribution of national wealth.
HUMAN RIGHTS VIOLATION AND DISCRIMINATION
The most common reason today for calls for secession from the Mother State is on grounds of oppression, lack of democracy, discrimination and massive human rights violation. This justification is similar to what philosophers call the “just-cause theory”. Here there is a nexus between the right to self-determination and the respect of human rights. Examples were human rights violations have been used as a justification for a right to secession includes the Kurds, Eritreans, Bengalis, and Southern Sudanese. The legal basis for this argument stems from the 1970 Declaration on Friendly Relations. A thorough analysis of the Declaration coupled with the preparatory work leads to the conclusion that secession is allowed if certain stringent conditions have been fulfilled. The fact that secession is impliedly permitted by the 1970 Declaration does not mean that there are no restrictions. Antonio Cassese argues that for there to be a right to secession, there must be continuous refusal from the State concerned to grant participatory rights to the groups or “peoples” claiming the right to secede. Another condition is that there is a gross and systematic violation of their fundamental rights and the fact that there is no hope of having a peaceful solution of the problem within the existing State structure. This was the main reason used by the advocates of American Independence in 1776 since it was clear that there was no possibility of resolving their grievances with Britain in so far as they were a British colony.
The 1970 Declaration is a classic example for the limitation of sovereignty. The veil of sovereignty can be lifted if it can be proven that the State concerned is committing serious human rights violation and there is no prospect for solving the problem. This does make secession in that case legal and it is left to politicians to decide if it is legitimate or not.
Discrimination against a particular ethnic group, minority or peoples perpetuated by either the State or the majority population falls under the letter and spirit of the 1970 Declaration. Where the discrimination reaches a level, which threatens the physical existence of the peoples or minority concerned, then secession is their only remedy. In this case there is a right to remedial secession. In most cases, the situation becomes so bad that the State is not even prepared to accept the existence of a substantial minority group or peoples, as is the case in Cameroon. The government is not willing to recognise the fact that there is an Anglophone problem in Cameroon.
The repression of the population of the Southern Cameroons has always been an unofficial government policy in order to scare to death and deter the Southern Cameroonians from contemplating independence, reminiscent of the Stalinist era during the forlorn days of the Soviet Empire. The said repression reached unimaginable proportion after the March 1997 armed attacks by alleged Southern Cameroonians secessionist in the North-West Province of the Southern Cameroons.
The fact that the situation of the Southern Cameroons cannot be comparable to that of East Pakistanis should not be an excuse for refusal of the right to secession. After all, human rights violation is not the only reason for secession. Secession can legally take place, and has in fact taken place in the absence of accusations of human rights violations, as was the case in the secession of Slovakia from Czechoslovakia. The initial demands from most secessionist movements are more democracy and respect of human rights. However, as a result of the unwillingness of the State concerned to dialogue with the secessionist group, the initial demand for democracy and respect for human rights evolves into secessionist demands. Cases such as those of the Southern Sudanese, Sri Lanka, the Bengalis in Pre-1971 Pakistan, the Croats and Slovenes are glaring examples. In the case of the Southern Cameroons, the initial demand was for a federation. This can be evident during the AAC held on the 2-3 April 1993 in Buea and the subsequent draft constitutional proposal of a federal form of government. As usual, the government did not consider the proposals. By so doing, the government reneged on its promise to hold an open debate on the constitution and has since been unable to propose any concrete measures for removing the country from its dangerous state of political gridlock.
With the persistent refusal of the government to adopt constitutional reforms, the Cameroon Anglophone Movement (hereafter referred to as CAM), one of the most important associations affiliated to the AAC, declared the total independence of the Southern Cameroons on the 3rd of December 1993. This Independence Declaration by CAM preceded the Second AAC held in Bamenda from the 29-2 of May 1994. At this conference it was decided that if the government persists in its refusal to engage in substantial constitutional reforms or does not realise it within a reasonable lap of time, the Executive Committee would proclaim the independence of Southern Cameroons. Hence the independence declaration of 30th December 1999 by Justice Mr. Ebong Frederick Alobwede is in line with the Bamenda declaration and the failure of the government to implement constitutional reforms. The fact that independence could be declared without regard to the consequences goes a long way to show how the situation has deteriorated. For what started as a clamour for the return to the federal system that existed prior to re-unification has degenerated to outright secession mainly due to the failure of the government to dialogue with the Southern Cameroonians.
Marginalisation
Another justification for secessionist demands is a history of marginalisation against a particular people. The marginalisation of the Southern Cameroons is very obvious. A walk down memory lane will clearly show how the marginalisation has taken place over the years. The following are but examples. Since 1961, no Southern Cameroonian has ever been appointed to any strategic ministry such as Armed Forces, Foreign Affairs, Territorial Administration, National Education and Finance. Since 1961 no Southern Cameroonian has been appointed Ambassador to English speaking countries such as the USA and Nigeria. Hence, most people out of Cameroon are surprised to learn that Cameroon is a bilingual country. These have made most Southern Cameroonians to feel that they are second-class citizens and that the only remedy is secession.
Discriminatory redistribution of national economic resources
Another justification for secession is on grounds of “discriminatory redistribution” of national economic resources. This justification is very apt in the case of the Southern Cameroons. The economy of the Southern Cameroons, which was vibrant at unification, has been systematically and methodically destroyed. The Southern Cameroon State has been abandoned to itself with no industries, no development and no good roads. The lone oil refinery in the country is located in Limbe, in the Southern Cameroons were the oil is drilled and refined but sold in Douala where the Royalties are paid thus depriving the Southern Cameroons from those vital resources. As far as road infrastructure is concerned, very little or nothing has been done in the Southern Cameroons.
Do the Southern
Cameroonians have a defined territory?
In the analyses on the definition
of the complex term of “peoples”, it was clear that peoples could be defined
with reference to a particular territory. A State must prove that it can create
a practicable and governable state with control over a recognised and
well-defined territory. The seceding unit must prove that its claim to govern
the territory in question is superior to that of the State from which it
proposes to secede. This may be done by illustrating either a history of
exercising effective control over that territory as a State, or by proving that
the metropolitan State has violated international law by maintaining control
over a particular territory through the abrogation of the right of
self-determination.
If the party with the grievance
has objected constantly to what it perceives as an illegal violation of its
right to self-determination, that title can hardly be said to have passed, thus
acquiescence of a party involved is of fundamental importance in determining
effective control. Hence the arguments raised by some French speaking legal
scholars that the Southern Cameroons had acquiesced to the illegal violation of
its right to self-determination cannot be tenable. This is because over the
years, the Southern Cameroonians have sent numerous petitions to the UN and the
international community on the violation of its right to self-determination.
Historically, the Southern
Cameroons had asserted control over the entire territory that it claims. As far
back as 1954 the Southern Cameroons did enjoy an autonomous self-governing
status within the Federation of Nigeria. Under the 1954 constitution, the
Southern Cameroons had its own legislature with the prerogatives of legislation
in all areas save those that were exclusively on the legislative list of the
government of the Federation of Nigeria. Thus the provision for a separate
House of Representative in Buea the capital of the Southern Cameroons goes a
long way to show that the Southern Cameroons had asserted authority over the
whole territory and this is the same area claimed by the Southern Cameroons.
Hence, similar to the Baltic States, the Southern Cameroons had exercised
control over a well-defined territory.
Cultural
preservation
A very important justification claimed
by the people of Southern Cameroons for the right to secession is for the
preservation of their culture. The reason being that the government is
persistently trying to trample on the cultural and linguistic rights of the
Southern Cameroonians. The example of the General Certificate Education is
self-evident. The government tried in 1985 to merge it with the French exams.
If the Government had prevailed, French would be a compulsory subject for all
Southern Cameroonian students. This was made possible by the fact that a group
system was to be introduced wherein students would select a particular group of
courses and in all the available groups French was compulsory. This was akin to
the system practice in the francophone part of the country. Furthermore, there
are attempts to discard with the English language, it’s an open secret that
although Cameroon is a bilingual country where French and English is suppose to
be the official languages, the official language in practice is French. In addition,
Southern Cameroonian Lawyers are fighting against all attempts at the erosion
of the common law. The recent appointment of civil law trained magistrates to
the common law zone, the delivery of a judgement in French by the
Administrative Court of the South West Region, the request for submissions to
be made in French and also the attempts appointment of Notaries in the South
West and North West Region is very worrisome. The strike action and petition by
the Lawyers from the North West and those from the South West against the
erosion of the Common Law is clear indication that lawyers from Southern
Cameroons are willing and ready to ensure that the common law is preserved.
Common law practitioners are not begging
for political favours but are merely seeking the respect of the constitution
and Cameroon's treaty obligations. Cameroon is a state party to the
International Covenant on Civil and Political Rights. That treaty states the
minimum guarantees of a fair trial in Article 14 (2) (a) " To be informed
promptly and in detail in a language which he understands of the nature
and cause of the charge against him. Article 27 states that " in those
states in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community
with other members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language" These
provisions of the International Covenant and Political Rights read
with articles 63 and 65 of the Cameroon Constitution mandates
that legal proceedings in the Common Law Jurisdictions be conducted in the
language understood by the people within this bijural component of Cameroon.
Can Southern Cameroonians claim a right to secession
under regional international?
law?
The 1981 African Charter was the first
regional human rights document to expressly refer to the right to
self-determination. Whilst paragraph 1 of Article 20 makes a general reference
to all peoples as having the right to self-determination, paragraph 2 makes
particular reference to colonised or oppressed peoples as beneficiaries of the
right to self-determination. The trend in Africa in the interpretation of the
African Charter is to limit the right of self-determination to decolonisation;
thus self-determination comes to an end with independence. African State
practices and that of the Organisation of African Unity (hereafter referred to
as the OAU) limits the application of self-determination only to those under
colonial or alien domination. The interpretation of the right to
self-determination in the African Charter is limited only to Articles 20(2) and
19 without regard to Article 20(1), which provides for a general right of
self-determination.
In Africa, the principle of territorial
integrity plays a dominant role; the fact that this principle conflicts with
that of self-determination, preference is given to the former. This opinion is
impliedly recognised in the OAU Charter as seen in Article 3(3), which,
provides for the respect of the sovereignty and territorial integrity of all
member States. This position was reiterated a year later by the OAU Assembly of
Heads of State and Government which issued the Resolution on Intangibility of
Frontiers expressly affirming the principle of uti posseditis. This important
principle of territorial integrity in Africa has been given legal blessings by
the International Court of Justice in the Burkina Faso v. Mali case where the
Court confirmed the importance of this principle in Africa.
State practice is clearly against secession
as evident in the reaction of African States during both the Biafran and
Katangese secession. As concerns Biafra, only five African States did recognise
the State of Biafra. The opinion of Emperor Selassi, in charge of the
consultative committee formed by the OAU during the Biafran war clearly
reflects the African position on this issue. His opinion gave preference to the
territorial integrity of African States, which to him was not negotiable. The
OAU Resolution in 1967 condemned out rightly the Biafran secession. The African
Commission on Human and Peoples’ Rights has recently also accepted this
principle of territorial integrity in an action brought by the peoples of
Katanga against the Government of Zaire. It is thus clear that in Africa,
national unity and territorial integrity is considered more important than the
principle of self-determination. This is done in absolute disregard to the
legal principle, which states that in case of conflict of two legal norms;
preference should not be given to one in a way that the other loses its effect.
The interpretation of the African Charter
and State practice in my opinion is erroneous. The African Charter is
interpreted without regard to its Article 20(1). The fact that the said
paragraph provides that all peoples have the right to self-determination means
that it should not be limited to colonial peoples only. A broad interpretation
should be given to those with the right to self-determination. It is my opinion
that a people in a State can still be oppressed by an African regime of the
same State. Thus paragraph two which makes mention of oppressed people does not
limit it to a foreign regime; after all, there are peoples all over in Africa
who are being oppressed by their governments. This opinion can be supported by
the Irish argument, which is to the effect that a people might still be
oppressed and thus seek independence from, those with whom they share a common
race, creed and colour. Also the fact that the paragraph provides for colonised
or oppressed people in my opinion means that there are some differences,
otherwise it would have been colonised and oppressed peoples. However, a look
at the travaux préparatoires clearly show that the intention of the draftsmen
were to limit the right to self-determination only to peoples under colonial
and foreign domination.
As concerns the Southern Cameroons it will
be difficult for a right to secession to be claimed under the African Charter.
African State practice clearly shows that territorial integrity is of prime
importance. Notwithstanding the fact that five African States did recognise
Biafra and that the Saharan Arab Democratic Republic (SADR) and Eritrea
successfully separated from Morocco and Ethiopia respectively, there is still
the trend of rejecting claims for secession in Africa. Even if one rightly
argues that notwithstanding the fact that Article 20(2) provides specifically for
colonised and oppressed peoples, the fact that Article 20(1) generally provides
for the right to self-determination of all peoples means that it should be
given a broad definition. However, in the interpretation of legal instruments,
whenever, there is a conflict between the specific and the general; preference
should be given to the specific. Thus the interpretation will always be
restricted to colonised people.
African States and the AU should not
consider the right to self-determination as a taboo. They should learn from the
example of the Ethiopian Constitution as evident in Article 39(3), which
recognises the right to self-determination. A right to secession need not be
legal for it to be recognised. The act of secession is more political than legal.
Although there is no right to secession under the African Charter, the OAU/AU
Charter and clearly from African State practice, the possibility of a
declaration of secession leading to de facto secession is not ruled out. The
ultimate success of such secession would be dependent on recognition by the
international community, which is likely to consider the legality and
legitimacy of the secession amongst other facts in determining whether to grant
or withhold recognition. Thus Southern Cameroonians can use force to achieve
statehood like the Eritreans did. After all, the Eritreans used force and only
presented the UN and the OAU/AU with a fait accompli.
CONCLUSION/SUGGESTIONS
The current struggle between the peoples
of the Southern Cameroons and La
Rèpublique du Cameroun need not
be a win/lose confrontation. The government and the SCNC will need to
accommodate the legitimate needs and aspirations of each other in order to
bring about lasting peace and security. Sustained efforts must be realised in
order to change the win/lose perception and options of both parties,
particularly that of the government. The Government of La Rèpublique should not consider the right to self-determination
as a taboo. They should learn from the example of the Ethiopian Constitution as
evidenced in Article 39(3), which recognises the right to self-determination.
My suggestion is
for a kind of a genuine regional autonomy with extensive powers to the regions
in the running of their day-to-day affairs. This will go a long way to quell
the secessionist feeling in the Southern Cameroons. The advisers of the
President should inform him that autonomy is the best prevention against
secessionist demands, if only granted in time. Who comes too late, as Gorbachev
said, is punished by history. Once a secessionist movement has arisen, the
granting of autonomy may not seem credible and therefore not fit to stopping
the demand for secession. The question of whether a right of secession exits
would be of little importance for political developments. The threat of the
right of secession should then become a motivation for granting autonomy in
time and thus making any wish for secession superfluous.
*The author has served as Legal and/or Human Rights Officer for various UN missions abroad, and now runs the Agbor Nkongho Law Firm in Buea. He is also the Founder and Executive Director of the Centre for Human Rights and Democracy in Africa, Buea.
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