Nonviolent Self-Determination & Policing Of Public Assemblies In Nigeria
Understanding Legal Roles Of The Agitators & The Policing Agencies Other Than The Military
Text of a Public Lecture delivered today, 13th September 2017 byEmeka Umeagbalas (Criminologist & Graduate of Security Studies; and Master of Science in Peace & Conflict Studies); Board Chair of Int’l Society for Civil Liberties & the Rule of Law (Intersociety) at the 18th Anniversary of the Movement for Actualization of the Sovereign State of Biafra (MASSOB), held at the Rojeny Stadium, Oba, Anambra State, Nigeria
Self determination, globally, has three core foundational formations or origins: (1) the process by which a country under colonialism seeks to determine its own statehood and form its own government; (2) a situation whereby group of persons exercise their inalienable rights to existence, ethnic identity and social, economic and political well-being without external subjudation; and (3) the right of members of a race or substantially homogenous ethnic nationality living in a defined territory to seek to be freed from the clutches of territorial, economic, religious, ethnic values and political strangulations and allied oppressive policies and actions masterminded or perceived to have been masterminded by a mother political territory and its operators.
The Principles & Purposes of the United Nations are clearly spelt out in the Charter of the world body as: saving future generations from war, reaffirming human rights and establishing equal rights for all persons; in addition to promoting justice, freedom, and social progress for the peoples of all of its member States.
Regionally and internationally, the right of people to self-determination is a cardinal principle in modern international law (commonly regarded as a jus cogens rule), binding, as such, on the United Nations as authoritative interpretation of the Charter’s norms. Self-determination principle of the UN states that people, based on respect for the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status with no interference. The UN jus cogens rule is binding on all its member-States including Nigeria.
By Jus Cogens Rule of the United Nations, it is that body of peremptory principles or norms from which no derogation is permitted; those norms recognized by the international community as a whole as being fundamental to the maintenance of an international legal order. They include elementary rules that concern the safeguarding of peace and notably those that prohibit recourse to force or the threat of force. Norms of humanitarian nature are included. They include prohibitions against genocide, slavery, racial discrimination and other forms of heinous crimes or crimes against humanity; forcing a country to be engulfed by “complex humanitarian emergencies”. Jus cogens rules may, therefore, operate to invalidate a treaty or agreement between states to the extent of the inconsistency with any such principles or norms.
The concept of political self-determination was first expressed in the 1860s, and spread rapidly thereafter. By extension the term self-determination has come to mean the free choice of one’s own acts without external compulsion. One of the earliest advocates of self-determination was Woodrow Wilson, who had in his famous self-determination speech on 11th February 1918, following the announcement of his famous Fourteen Point program for the formation of the League of Nations; said: National aspirations must be respected; people may now be dominated and governed only by their own consent. Self determination is not a mere phrase; it is an imperative principle of action. . . . “
Further, self-determination had been famously defined by several international law scholars and one of the striking definitions was that made by Karen Parker; an international humanitarian law expert during the presentation to first int’l conference on the Right to Self-Determination at the United Nations Conference in Geneva in August 2000. Karen Parker had in her presentation: Understanding Self-Determination: the Basics; extensively or elaborately defined same as follows:
“The right to self-determination, a fundamental principle of human rights law, (1) is an individual and collective right to “freely determine . . . political status and [to] freely pursue . . . economic, social and cultural development. (2) The principle of self-determination is generally linked to the de-colonization process that took place after the promulgation of the United Nations Charter of 1945. (3) Of course, the obligation to respect the principle of self-determination is a prominent feature of the Charter, appearing, inter alia, in both Preamble to the Charter and in Article 1.
The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone. (4) The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.(5)
The right to self-determination is indisputably a norm of jus cogens. (6) Jus cogens norms are the highest rules of international law and they must be strictly obeyed at all times. Both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination also has the legal status of erga omnes.(7) The term “erga omnes” means “flowing to all.” Accordingly, erga omnes obligations of a State are owed to the international community as a whole: when a principle achieves the status of erga omnes the rest of the international community is under a mandatory duty to respect it in all circumstances in their relations with each other”.
By Article 1 of the Part 1 of the Int’l or UN Covenant on Civil & Political Rights of 1976 (ICCPR), the right of all peoples to self-determination, including the right to “freely determine their political status”, pursue their economic, social and cultural goals, and manage and dispose of their own resources is unambiguously provided. It further recognizes a negative right of a people not to be deprived of its means of subsistence, and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination. The Federation of Nigeria ratified the ICCPR treaty on 29th October 1993 after it came into force on 23rd March 1976.
By Articles 1 and 2-5 in Parts 1 and 2 of the Int’l Covenant on Economic, Social and Cultural Rights (ICESCR) of 1st January 1976, the right of all peoples to self-determination, including the right to “freely determine their political status”, pursue their economic, social and cultural goals, and manage and dispose of their own resources is also importantly provided. It further recognizes a negative right of a people not to be deprived of its means of subsistence, and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination
The ICESCR’s Articles 2–5 establish the principle of “progressive realisation” – see the treaty on Wikipedia. It also requires the rights be recognized “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The rights can only be limited by law, in a manner compatible with the nature of the rights, and only for the purpose of “promoting the general welfare in a democratic society (instituted and determined by the people)”. The Federation of Nigeria ratified the ICESCR on 29th July 1976 after it was opened for ratification on 1st January 1976.
The African Charter on Human & Peoples Rights of 1981 (ACHPR); otherwise called the Banjul Charter also uniquely recognizes collective or group rights, or peoples’ rights and third-generation human rights. As such the Charter recognises group rights to a degree not matched by the European or Inter-American regional human rights instruments. The Charter awards the family protection by the State (Article 18), while “peoples” have the right to equality (Article 19), the right to self-determination (Article 20), to freely dispose of their wealth and natural resources (Article 21), the right to development (Article 22), the right to peace and security (Article 23) and “a generally satisfactory environment” (Article 24) are also elaborately provided.
The Federation or Federal Republic of Nigeria not only ratified the ACHPR on 22nd June 1983, but also legislatively and presidentially domesticated it later in same 1983. The ACHPR is presently cited in Nigeria as the African Charter on Human and Peoples Rights (Ratification and Enforcement Act, Cap A9), Laws of the Federation of Nigeria 2004.
Apart from ratification and domestication of the ACHPR by the Federal Republic of Nigeria, the Supreme Court of Nigeria also made the ACHPR municipally operable and enforceable. This is by virtue of the Apex Court’s landmark decision in Gen Sani Abacha & Ors v. Chief Gani Fawehinmi (2000) 4 FWLR 533. The Supreme Court had ruled that “the ACHPR is only subject to the 1999 Constitution, but above any other legislation in Nigeria”. That is to say that where Nigeria’s 1999 Constitution ends in preserving, providing, protecting, promoting and advancing these citizens’ constitutional liberties and human rights; the African Charter on Human & Peoples Rights begins; especially with respect to right to Self-Determination.
By Section 17 in Chapter Two of the Constitution of the Federal Republic of Nigeria 1999, under Fundamental Objectives & Directive Principles of State Policy; otherwise called “the Charter of Responsibilities for the Public Office Holders in Nigeria”; “the State Social Order is founded on ideals of Freedom, Equality and Justice. (2) In furtherance of this social order: (a) every citizen shall have equality of rights, obligations and opportunities before the law; (b) the sanctity of human person shall be recognized and human dignity shall be maintained and enhanced; (c) government actions shall be humane; (d) exploitation of human and natural resources in any form whatsoever for reasons, other than the good of the community, shall be prevented; and (e) the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained”.
By Section 14 of the same Charter of Responsibilities in the existing Nigeria’s 1999 Constitution, “the Federal Republic of Nigeria shall be a State base on Principles of Democracy and Social Justice”. By its Section 14 (2), “it is hereby declared that sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority”. 14 (2) (b) “the security and welfare of the people shall be the primary purpose of the Government; and (c) the participation by the people in their Government shall be ensured in accordance with the provisions of this Constitution”.
By Section 14 (3) of the referenced Charter of Responsibilities in the Constitution, “the composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or any of its agencies”.
By the Constitution’s Section 15 (1), the motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress; and (2) accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited”.
Grandly, by Section 13 of the referenced Charter of Responsibilities in the same Constitution, “it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter (11) of this Constitution”.
Regrettably and sadly, these fundamental constitutional tasks left in the hands of the present public office holders in Nigeria under the chairmanship of Retired Major Gen Muhammadu Buhari and Prof Yemi Osinbajo have gravely been observed in breach; leading to present thunderous verbal and nonviolent expression by way of nonviolent self-determination of disenchantment, disillusionment, angst, anger, anguish, frustration, contempt and socio-political and economic segregation and exclusion.
Approaches to Self-Determination: Globally, quest for Self-Determination can be done peacefully (positively) or violently (negatively) by the agitators. Negative or violent quest for self-determination is done violently, using arms; by way of armed insurgency, or guerrilla warfare, or by direct armed rebellion and resistance, etc. Use of armed or violent conflict to agitate for self-determination is globally outlawed and very unpopular; but where it erupts, the conduct of such warfare especially the traditional intra State territorial armed conflict by the agitators and the existing political sovereign territory; is subject to the Laws of War or the Geneva Conventions of 1949 and its existing protocols. At the level of this speaker and his organization-Intersociety, we are enemies of violence and friends of pacifism. That is to say that we do not subscribe to violent means of exercising rights to self-determination.
On the other hand, peaceful (positive) or nonviolent self-determination is universally recognized. It must be pointed out clearly here that the Federal Republic of Nigeria was a major beneficiary of nonviolent self-determination agitation through which it gained its independence from Great Britain on 1st October 1960. Countries like Angola (1961-1975) against Portugal, Namibia (1966-1990 via SWAPO guerrilla warfare) against South Africa and Mozambique (1964-1974/75) against Portugal all secured their independence violently or through years of armed struggle or violent self-determination agitations.
Recently, South Sudan (9th July 2011) and Eretria (29th May 1991) gained their statehoods from Republics of Sudan and Ethiopia through violent armed struggles that started in 1956-1972/1983-2005 (between Sudan and South Sudan) and 1961 (between Ethiopia and Eritrea), while East Timor (20th May 2002) agitated and succeeded in its own from Republic Indonesia through nonviolent self-determination agitation started since 1975.
Former Union of Soviet Socialist Republics (USSR) handled its self-determination agitations by its splinter sub nationalities through peaceful policy of perestroika and glasnost introduced in 1987; leading to breaking of the country into fifteen independent countries on 26th December 1991; likewise former Czechoslovakia which peacefully broke into two independent States of Czech and Slovakia Republics on 29th December 1989 through velvet revolution; while former Yugoslavia mishandled its own which violently broke the country into five independent States starting with Slovenia, Macedonia and Croatia in 1991.
Self-Agitation must also not lead to statehood, depending on its handling styles. It can lead to unification or fortification of formerly separate or existing disputing national or sub-national entities into one strong and united pluralistic sovereign political territory. A typical example is former East and West Germany which is now united into the Federal Republic of Germany. Elsewhere, former “British India” is now divided into India, Pakistan and Bangladesh (formerly Bengal Province of British India). The Republic of Singapore also separated from its union with Malaysia and became statehood in 1965. This is to mention but few.
Constitutional Policing of Nonviolent Self-Determination: The Chapter Four or Sections 33-46 (justiciable rights to life, dignity of human person, personal liberty, fair hearing and fair trial, peaceful assembly, association and expression, right against indiscriminate arrest and long detention without trial and rights to freedom of movement, thought, conscience and religion/worship, etc) are all provided in the 1999 Constitution and replicated in the two UN Covenants on Civil & Political Rights and Economic, Social & Cultural Rights as well as the African Charter on Human & Peoples Rights; all fully subscribed to by the Federal Republic of Nigeria. They are the surest safeguards for nonviolent self-determination agitation and its public assemblies’ policing in Nigeria.
These fundamental rights are civilized and constitutionally recognized; serving as lawful approaches to be applied in the course of nonviolent self-determination campaigns and their policing. By Section 33 of Nigeria’s 1999 Constitution, for instance, no citizen shall be killed or tortured on account of his or her participation in nonviolent self-determination agitation except in extreme circumstances such as if he or she is an active participant in actus reus and mens rea established armed struggle or violent conflict, or armed insurrection or mutiny.
Constitutionally, regionally and internationally, members of the Armed Forces including the Army of any member-State of AU and UN such as Nigeria are prohibited from dabbling into policing or management of public assemblies but only allowed skeletal responsibilities or mandates in the areas of rendering defensive services domestically in extreme emergencies such as during external armed attacks on their country’s territory; or internal armed conflict, armed insurrection and counterinsurgency operations; or in rendering humanitarian services in the event of eruption of natural disaster of widespread magnitude.
Therefore, where the armed forces of Nigeria including the Nigerian Army defy these ground rules and dictatorially and genocidally dabble into civil affair such as taking over the constitutional functions of the Nigeria Police with attendant genocidal conducts and other forms of heinous crimes as we are seeing presently in Nigeria particularly in the present militarization of the Southeast and the South-south regions of the country; then they shall inescapably be held responsible for crimes against humanity or heinous crimes committed in non war situations. There are no defenses of impunity and immunity for the perpetrators involved anywhere in the world.
If the Third Protocol to the Geneva Conventions or Laws of Armed Conflict of 1949 was specifically enacted in 1977 to checkmate the conducts of the combatants of the conflict parties as they relate to treatments of civilian populations or noncombatants including women, children and IDPs in widespread or clustered internal armed conflict (s), how much more on heinous crimes perpetrated in non war situation?.
The Doctrine of Rules of Engagement and its principles of use of force, self defense and exclusion from attacks of non-military necessity and places of worship and religious symbols during armed conflicts and their zones was also put in place to guide against perpetration of heinous atrocities during war time; otherwise called “war crimes”.
Nigeria’s regional and international obligations to its citizens in policing public assemblies: Nigeria as a State Party to UN and AU is strictly bound by numerous regional and international human rights treaties or conventions including the African Charter on Human & Peoples’ Rights (ACHPR) of 1981, ratified and domesticated in 1983; the UN Covenants on Civil & Political Rights (ICCPR); and Economic, Social & Cultural Rights of 1976 (ICESCR), ratified in 1993. Nigeria is also a State Party to UN anti Genocide and Torture Conventions of 1948 and 1985 respectively as well as the UN’s Women and Child’s Rights Conventions of 1984 and 1990 respectively, to name but a few.
Nigeria as a leading member of the UN and international community is also bound by the Basic Standards of International Law & Humanitarian Principles. Under this are the ten basic rules or standards for policing public and peaceful assemblies in any member-State; which expressly recognize the rights of the citizens of all Member-States of the UN including Nigeria, to peaceful assemblies and expressions other than armed conflict and strictly outline ways through which these assemblies shall be managed or policed by policing agencies excluding the army.
Under the ten basic standards of international law made mandatory for policing agencies of Member-States of the UN for management of civil assemblies and free speeches as well as arrest, detention and prosecution of citizens accused of commission of municipal crimes of relevant municipal code definitions; the following rules must be observed and strictly applied:
(1)everyone is entitled to equal protection of the law without discrimination on any grounds, especially against violence or threat..; (2) treat all victims of crime with compassion and respect, and in particular protect their safety and privacy; (3) do not use force except when strictly necessary and to the minimum extent required under the circumstances; (4) avoid using force when policing unlawful but nonviolent assemblies; (5) when dispersing violent assemblies, use force only to the minimum extent necessary (i.e. in line with proportionate use of force and avoidance of application of excessive force on unarmed(i.e. not bearing automatic rifles or firearms) but violent or aggressive assemblies).
Others are (6) lethal force should not be used when arresting nationals suspected of committing municipal or local crimes except when strictly unavoidable in order to protect your life or lives of others; peaceful or provoked violent assemblies do not amount to commission of municipal crimes other than insurrection, mutiny or armed struggle; (7) arrest no person unless there are legal wounds to do so and ensure that the arrest is carried out in accordance with lawful arrest procedures; (8) ensure that all detainees have access, promptly after arrest to their families and legal representatives and to any necessary medical assistance.
The rest are (9) all detainees must be treated humanely and avoid infliction, instigation or toleration of any act of torture in any circumstance and refuse to obey order to do so; (10) do not carry out, order or cover up extrajudicial executions or disappearances of the arrested or the detained and refuse to obey any order to do so; and report all breaches of these basic standards to your senior officers and to the office of the public prosecutor and do everything within your powers to ensure steps are taken to investigate these breaches.
In policing or managing such civil assemblies and free speeches, particularly if they become uncontrollable and capable of breaching public peace and safety, policing agencies and their officers must apply the following modern crowd control methods or kits and equipment: tear gas, rubber bullets, pepper spray, electric tasers, batons, whips, water cannons, long range acoustic devices, aerial surveillance, police dogs, etc; and they must be bodily aided or protected by body protective devices such as anti crowd helmets, face visors, body armor (i.e. vests, neck protectors, knee pads, etc), gas masks and anti crowd shields. Sir, it is crystal clear from the above that these fundamental rules were observed in grave breach in the instant case.
Regional and international obligations of Nigeria to its citizens under armed conflict or war situation: Under circumstances of war or situations of internal conflict, the military and humanitarian handling or management of same are strictly regulated regionally and internationally. On humanitarian and use of force aspects, Nigeria is a party to UN Statute on Refuge of 1951 and allied treatments of IDPs. Nigeria is also a State Party to the Statute of the International Criminal Court of 1998. Nigerian armed forces and police are also strictly bound by the UN’s Code of Conduct for Law Enforcement Officials of 1979 and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990.
In the area of intra and inter-State armed conflicts, Nigeria is bound by the Geneva Conventions or Laws of War of 1949 and their Four Protocols including the doctrine of rules of engagement and its principles of use of force, self defence, and others already highlighted above. Nigeria is also a State Party to anti Genocide and anti Torture Conventions of 1948 and 1985 respectively.
Sir, as you may professorially be aware or unaware, the Rules of Engagement traditionally and universally associated with internal and inter -State violent or armed conflicts or wars are the integral part of the Geneva Conventions of 1949 or Laws of War and their Four Protocols of 1977. They originally came from the three war related doctrines of Jus Ad Bellum (justification and ground for going to war); Jus In Bellum (ethical rules of conduct during war, such as ethical standards expected of soldiers or combatants in wartime or rules of engagement); and Jus Post Bellum (regulations on how wars are ended and facilitation of transition from war to peace).
Another name for the Rules of Engagement is the Standard Rules for the People of the War. The People of the War here literally means parties in the conflict who occupy the conflict areas such as fighting parties, non-combatants or civilians or IDPs and Refugees as well as other third parties directly or indirectly participating or affected by the conflict.
Further, key features of the internationally standardized Rules of Engagement strictly applicable in war or conflict situations are (1) legitimate use of force, (2) proportionality of use of force, (3) legitimate self defense, (4) treatment of prisoners of war or conflict, (5) avoidance of attacks on non-military necessity or civilian targets or properties, (6) avoidance of attacks on civilians or non-combatants, (7) treatment of the wounded, (8) avoidance of attacks on culture symbols or places of worship, (9) avoidance of attacks on humanitarian agencies and personnel/human rights activists; (10) treatment of other peoples of the war (i.e. spies and journalists).
Nigeria’s obligations to UN and its citizens under UN System: The UN’s new concept of sovereignty as a responsibility or citizens’ sovereignty and maintenance of international peace and security as the core foundation of the Purposes of the 193-member Organization; is inviolably binding on Nigeria as a key Member-State. Nigeria is also bound by the Customary International Law under UN System particularly those that are inviolable by virtue of their doctrine of “substantial uniformity by substantial number of States” or “Opinio Juris” (i.e. a general belief binding on all Member-States that a non-treaty is legally binding on States); and importantly, the principle of “Jus Cogens” (i.e. absolute rules of general international law binding on UN Member-States for which no derogation is permitted).
Sadly and shockingly, the regime atrocities in Nigeria since June 2015 when the Buhari/Osinbajo Administration came on board have continued to rise to intractable or unimaginable proportions. Over 2000 innocent and defenseless citizens have been killed by Government security agencies/forces with over 1000 others made to suffer i varying degrees of injury.
Those murdered, mostly by Lt Gen Tukur Yusuf Buratai led Nigerian Army include over 1120 unarmed and defenseless members of the Shiite Muslims, 270 members of the pro Biafra movements; and 236 IDPs killed by the Air Force in the Borno IDP camp in January 2017 and 240 civilian detainees made to die in the Maiduguri military barracks in 2016.
Constitutional & Int’l Roles of Nonviolent Agitators of Self-Determination: It is beyond verbal declaration or claims of being nonviolent in the exercise of right to nonviolent self-determination. Nonviolent agitators must at all times remain pacifists. They must be antagonists of group and individual violence no matter the amount of State provocation. Nonviolence or pacifism includes staying away from street or blue collar criminal activities such as cultism, motor park seizure and violence; touting, thuggery, extortion and debt recovery and associated violence.
A nonviolent agitator must also refrain from violent crimes such as armed robbery/banditry, carjacking, arson, burglary, housebreaking, criminal trespass, rape, murder, ritualism, violent land and property disputes, abduction/kidnapping as well as organized/software crimes of drug abuse, human trafficking, gunrunning/illicit arms trade, advance fee fraud and local and across borders’ illicit drug trade and associated violence; and cyber criminality, etc. Quest for nonviolent self-determination is never an excuse to take to crime or be in conflict with the existing laws of the land; especially the criminal laws.
Finally, agitation for nonviolent self-determination fundamentally requires expertise, educational upgrading and mental depth; research, investigation and documentation. It also importantly requires knowledge of the law, use of experts or technical resource borrowing and exchange; knowledge and consistent use of information communications technology or ICT and media (inclusive of audio-visual, visual, web/online and the print) and pacifist regional and international links and campaigns.
Emeka Umeagbalasi is board chairperson of a leading human rights group, International Society for Civil Liberties & the Rule of Law at a Grassroots Lecture Organized by the JDPC for Parishioners of the Immaculate Heart of Mary Catholic Church, Fegge, Onitsha, Anambra State, Nigeria on July 12, 2016. Emeka can be reached by HERE.
The opinions expressed in this article are solely those of the author.