Bakasi and the Uti Possidetis principle

As Akwa Ibom and Cross River State await the Supreme Court judgment over their precious 76 oil wells, tension has been growing between them. It will be recalled that the wells hitherto belonging to Cross River State were ceded to Akwa Ibom State by National Boundary Commission (NBC) and the Revenue Mobilisation Allocation and Fiscal Commission (RM-AFC) on the grounds that Cross River State was no longer a littoral state and could no longer benefit from the Offshore/ Onshore Abrogation Act 2004. As Governor Liyel Imoke Administration of Cross River continues to suffer from insolvency, earning only 61 billion naira, while Akwa Ibom earns about 281 billion naira annually, tempers are rising.

The original sin was of course Nigeria’s foolish- ness in accepting to go to the International Court of Justice (ICJ) for a resolution of Cameroon’s territorial claims over the Bakasi Peninsula. Nigeria had no business going to ICJ. In international law, the principle of uti possidetis juris (UPJ) has served to preserve the boundaries of colonies emerging as States. Originally applied to establish the boundaries of decolonized territories in Latin America, UPJ has become a rule of wider application, notably in Africa.

Uti possidetis which is Latin for “as you possess, you shall possess henceforth” states that territory and other property remains with its possessor at the end of a conflict, unless otherwise provided for by law or treaty. The United Nations had ceded parts of Cameroon, then a mandate territory. to Nigeria on the basis of a plebiscite in which the people voted to be in Nigeria and our country took possession on the basis of this sound democratic principle. In his wisdom, President Obasanjo accepted to question Nigeria’s possession of Bakasi by going to the ICJ. We lost because we accepted to question a possession we already had. I was recently at the Green Tree Estate in Up Stare New York where Obasanjo proudly signed off Bakasi to Cameroon. His photograph ceding the territory is proudly displayed as one of the greatest achievements of the Estate and the United Nations.

Since independence, the principle of uti possidetis has governed African borders. The reason was to prevent opening the Pandora box of states questioning colonial borders after independence leading to fratricidal wars provoked by the challenging of frontiers following the withdrawal of the administering power. Uti possidetis juris, as it stands at the present, is based on two ideas: self-determination and the non-interference in the internal affairs of other countries. Fol- lowing the collapse of colonial rule, the African boundaries tioning colonial borders after independence leading to fratri- cidal wars provoked by the challenging of frontiers following the withdrawal of the administering power.

Uti possidetis juris, as it stands at the present, is based on two ideas: self-determination and the non-interference in the internal affairs of other countries. Following the collapse of colonial rule, the African boundaries drawn at the Berlin Conference were preserved in spite of the fact that they were mostly abstract lines running along given longitudes and latitudes that divided colonial “spheres of influence.” They became our international boundaries based on the principle of uti possidetis juris. And despite the fact that 40 percent of African borders are straight lines that divide scores of different ethnic groups, they have proved to be stable and viable in most cases.

It is true that we Africans have always complained that our borders are artificial and imposed arbitrarily by foreign powers. This is true but the fact of the matter is that they have become a “tangible reality” as the OAU declared in 1964. Attempts to question the boundaries on bases different from the uti possidetis juris principle, such as ethnic or historical entitlements by Morocco and Somalia have created more problems that they solved. In Nigeria, we fought the Biafran war and lost a million citizens to preserve our dear colonial border. The Democratic Republic of the Congo has been in conflict for over sixty years since the attempt of Katanga to secede. Currently, the Economic Community of West African States (ECOWAS) and the African Union are mobilizing troops to go to Mali to preserve the country’s colonial border that was recently challenged by the declaration of the State of Azawad. It is irrelevant that African borders were invented in total disregard to any previous knowledge about topography of the terrain or the desires of the local population. The fact of the matter is that all inventions are real and these borders have become real. The Bakasi question is important because it’s an exception. The people actually voted to belong to Nigeria. We accepted them and took possession.

We cannot hand them over to Cameroon without asking their opinion. Luckily, President Obasanjo did not have the power to cede Nigeria’s territory to anybody. That power is with the National Assembly and they have not ratified the Green Tree Agreement. The first step the National Assembly needs to take is to pass a law allowing for a plebiscite of the people over where they want to be. The United Kingdom has refused to cede Malvinas to Argentina who has historical and geographical claims because a couple of hundred persons on the Island have said they want to remain British. Let us ask the people of Bakasi where they want to be and take it up from there.

Meanwhile, the redrawing of internal state boundaries by the National Boundaries Com- mission on the basis that Bakasi has been ceded to Cameroon is precipitate action. It sets out to operationalise the boundary change before the process itself has been concluded in law. Echoes from Cross River State are that they are planning to express their anger against their kith and kin in Akwa Ibom over re- allocations of oil wells. As the National Assembly had not ratified the Green Tree Agreement, the National Boundaries Com- mission should have retained the principle of uti possidetis juris on the question of oil wells. In its 1986 ruling on the border dispute between Mali and Burkina Faso, the International Court of Justice (ICJ) itself was categorical in stating that uti possidetis juris serves “to freeze the title over territory at the time of independence.” Why is the National Boundaries Com- mission unfreezing boundaries through precipitate action?