A recent meeting of Igbo Elders with President Muhammadu Buhari in Abuja during which they pleaded for an ‘unconditional’ release of Nnamdi Kanu, the incarcerated leader of the Indigenous People of Biafra (IPOB), has sparked differing reactions across the Igbo polity and beyond. Below, the Awka Times publi s her takes on reactions by readers to his initial commentary on the Abuja conclave.
By Chudi Okoye
A few days ago, news broke that some “respected” Igbo elders had met with President Muhammadu Buhari in Abuja to plead for an unconditional release of Mr Nnamdi Kanu, the leader of the Indigenous People of Biafra (IPOB), currently incarcerated and indicted for treasonable felony and terrorism, among other charges. Merely hours after the news broke last week, I wrote an analysis here in Awka Times arguing that the Igbo elders’ intervention, couched as a plea in behalf of Kanu, had the potential to be interpreted as an “apology” and that it could create a set of cascading outcomes likely to undermine IPOB’s revolutionary project as well as, by implication, the broader political interests of Igbo people. I suggested that it might be better for IPOB’s revolutionary agenda for Kanu to tough it through the court trial, not minding the vagaries of the Nigerian legal system.
My suggestion that the legal process be exhausted is informed by an estimation that Nnamdi Kanu has a fair chance of beating the rap and reaping a rich reward in moral vindication and possibly even legal legitimation for his project. The charges against Kanu are ludicrous, to say the least, and the government’s ham-handed prosecutors are bungling the case big time. It is not surprising that a federal government which went to the ends of the earth seeking to re-apprehend Nnamdi Kanu (even resorting to extraordinary rendition which is repugnant to domestic and international law) has begun, through its hapless and poorly educated attorney general, Abubakar Malami, to drop hints that it would be amenable to a political solution in the Kanu case (and also in Sunday Igboho’s, concerned with Yoruba nationalism). Malami’s insinuation to a political solution might indicate the uncertainty of the government about its legal case against Nnamdi Kanu.
If the government is starting to worry about the winnability of its case, it stands to reason, doesn’t it, that Nnamdi Kanu’s lawyers should concentrate on defeating the government in its own courts. This, I argued, would strengthen the legal basis for IPOB’s operation, in addition to the moral dividend it could garner; and it would ultimately serve the larger political interest of Igbo people.
There were immediate (and not entirely unexpected) reactions to my piece. We published some of these reactions here in Awka Times, but some were also rendered in forums where my piece was re-posted. I had some personal interventions as well, from friends mainly. I was told that there were disconcerted reactions in some Igbo leadership circles, including by some of the very Igbo grandees involved in the Abuja outing. One highly-placed confidante told me that debate about the writeup was “storming on my side,” and that “two of the grandees have been on my case hurling abuses.” Another confidante sent me reactions from, as he put it, “a high-profile platform of past Governors, Senators, etc.” to which it seems he belongs.
On the whole, reaction to my writeup was mixed, as might be expected on such a polarizing matter. Several commenters aligned with my argument, some even extending its logic. Some emphasized the point that Nnamdi Kanu should have his day in court, and that the government should prove its charges against him if it has the evidence, or release him if it cannot substantiate the case. Others worried how the government could contain Kanu and IPOB radicalism if the legal process were aborted and Kanu liberated without legal disposition.
There are some, however, who disagreed with my argument, some rather strongly.
I decided that it might be worthwhile, in order to advance the debate, to address the issues raised in response to my view. I will summarize below the primary arguments opposing my stance:
• It is argued that the Igbo elders who went to Abuja might have decided to intervene in order to break an apparent stalemate and rising tension between, on the one hand, seemingly befuddled and frazzled Igbo political elites who have not been able, so far, to intervene in any meaningful manner in the drama of Kanu’s trial, and on the other, the Igbo public frustrated by the fecklessness of the Igbo political leaders. The Igbo elders should be commended, it is argued, and not criticized for seeking a political solution that will ease the current tension in Igboland.
• A political solution is possible and preferable to contentious litigation, and it could produce a win-win outcome for all parties involved in the current imbroglio. The argument goes that all sides have strong incentives to find a political solution. The government, it is suggested, has boxed itself into a corner bringing charges against Nnamdi Kanu that it cannot prove and is thus prosecuting a case that it cannot win. Meanwhile, the government is said to be attracting global opprobrium for harassing a group seeking self-determination under the auspices of a principle which is upheld by the African Charter and the UN Charter, instruments which the Nigerian government has ratified.
One of the proponents of this view, a barrister and long-time friend, even argued in private chats with me that the Nigerian government is squirming under pressure which it was presumably facing from global institutions, and that the government might itself have instigated the Abuja visit of the Igbo elders. The government is said to have done this, apparently, through a ‘coded’ message sent by the federal attorney general a couple of weeks ago to the effect that a political solution might be considered if one were presented to the government.
Meanwhile, since governments typically crave domestic tranquility, it can be expected, it is argued, that the Nigerian government must welcome any political solution to the Kanu case which helps to mitigate the ripples of instability felt across the South East. The governments and indigenes of the South East, where insecurity is rising and the economy is tanking, would desperately welcome respite from any political solution.
Even IPOB, my interlocutors argue, stands to gain: Kanu would be unshackled and his hassled group can return to operating within the norms of political protest permitted under universal conventions and international law. The group could be re-legitimated and de-proscribed.
• It is possible for the federal government, acting through the attorney general, to end the prosecution of Nnamdi Kanu, invoking the prerogative of nolle prosequi which will render the charges against Kanu nol prossed, that is, they will simply be vacated. The Nigerian Constitution imbues the attorney general of the federation and state attorneys general with power to do this respectively at Section 174(c) and 211(c), and they can exercise such prerogative at any point during a trial.
The above then is a summary of the objections to my stance against the Igbo elders’ Abuja excursion. I will attempt, in the remaining part of this essay, to respond to these objections, pointing out the logical fallacies in the critiques and why I reject them and insist on my previous position.
Let us recall, again, the crux of my original argument. I had argued that although the Igbo elders’ plea for an unconditional release of Nnamdi Kanu was well-meaning (how can it be anything but?), it might in fact be construed as an “apology” for Kanu’s operation, as an implicit disavowal of his cause or at least a rejection of his tactics. Such a construction, I argued, could undermine IPOB’s revolutionary project, possibly resulting in a disorientation, deradicalization and demobilization of the group. And this, I further argued, would be detrimental to the larger political interest of the Igbos.
Several commenters said they failed to see how the release of Kanu could constrain IPOB operations, if it is unconditional as the Igbo elders pleaded. However, this objection fails to notice the nuance in the request presented by the leader of the Igbo delegation. Chief Mbazulike Amaechi, who led the group, requested that Nnamdi Kanu should be released to him personally, promising that “he (Kanu) would no longer say the things he has been saying.” As reported, the chief said he could control Kanu, “not because I have anything to do with them (IPOB), but I am highly respected in Igbo land today.” Chief Amaechi said he had interacted with Nnamdi Kanu twice in the past, following which the IPOB leader rescinded orders earlier given on civil disobedience.
Chief Amaechi concluded by telling Buhari: “I don’t want to leave this planet without peace returning to my country. I believe in one big, united Nigeria, a force in Africa. Mr. President, I want you to be remembered as a person who saw Nigeria burning, and quenched the fire.”
Although the news headlines stated that the Igbo elders pleaded for an unconditional release of Nnamdi Kanu, we can see in the way Chief Amaechi set up the request an opening for the Buhari government to come back with a set of prerequisites for terminating the prosecution and allowing the release of Kanu.
It is certainly correct, as the objectors argued, that Buhari could advise his attorney general to liquidate the prosecution of Nnamdi Kanu. But does anyone seriously think that he would do this without exacting serious concessions aimed at dismantling IPOB? One of my interlocutors argued that Buhari was seeking a face-saving exit from his government’s muddled prosecution of Kanu; that he has realized – apparently due to growing diplomatic pressure – that he was mistaken to have apprehended Kanu or banned his organization; and so he would be amenable to a political solution which re-legitimates IPOB, allowing it to operate as a nonviolent group seeking self-determination within the ambits of international law.
This argument ignores the fact that IPOB was operating as a nonviolent actor when it became classified as a terrorist organization (in 2017) and proscribed under the Nigerian Terrorism Act. It ignores the fact that the same government that chose to ban a nonviolent IPOB has exhibited no compunction in dealing with far more deadly bandits and terrorist groups marauding the northern territories of Nigeria, offering them amnesty, providing rewards and incentives and re-education in an attempt to bring the brigands back in.
You have to ask what would make Buhari’s government more apprehensive of a peaceful IPOB than the northern terrorist bands it has been willing to engage. Perhaps it considers the northern bandits a ‘mere’ security challenge but finds separatist IPOB more dangerous to the corporate existence of Nigeria. Or, maybe this is mere rationalizing: it is possible that Buhari is simply propelled by parochial motivations in his differential treatment of IPOB and the northern bandits.
I do not see Buhari willing to release Kanu except under the strictest conditions. The conditions of release would be set up as a stultifying dilemma for Kanu: if he accepts some squalid backroom deal in order to be released, his revolutionary project would be deeply damaged and his reputation would be in tatters; if he refuses, it would provide a plausible pretext for his prolonged incarceration. The Igbo elders, perhaps unwittingly, have created grounds for a Faustian bargain to be thrust upon their ‘son’, Nnamdi Kanu.
Misreading International Law
The argument is made that as long as IPOB commits to using nonviolent means, Buhari would have no choice but to give rein to its separatist agitation since the right to self-determination is guaranteed under international law.
There is something to this argument, but I think it relies too heavily on international conventions that are sometimes ambiguous and hard to enforce anyway.
Certainly, the right to self-determination is recognized under international conventions to which Nigeria is a signatory. For instance, Article 20 of the African Charter on Human and People’s Rights acknowledges that “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.” The convention also holds that “Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community” (emphasis added).
Similarly, the United Nations International Covenant on Civil and Political Rights (ICCPR), in tandem with the UN’s International Covenant on Economic, Social and Cultural Rights (ICESR), also declares at Article 1 that: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
This principle has been reinforced by a UN General Assembly resolution adopted on 13th September 2007 which unequivocally affirmed the political and economic rights of indigenous peoples. According to the United Nations Declaration on the Rights of Indigenous Peoples, “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs… [They] have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.”
The right to self-determination is well-established, and it behooves the Buhari administration to respect any indigenous group, recognized as a ‘people’, seeking to exercise that right. But we should also not lose sight of certain loopholes inherent in these storied conventions. Take the case of the UN’s Declaration on the Granting of Independence to Colonial Countries and Peoples which was adopted in 1960. Whilst, on the one hand, the convention affirms at Article 2 that “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”, it does however insist at Article 6 that “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”
How do we reconcile these two articles? It would appear that the UN grants with one hand and takes away with another. It grants the right to self-determination, but denies the pursuit of it to the detriment of an extant state.
Some scholars have attempted to reconcile the two positions by arguing that while international law embraces the principle of ‘self-determination’, it does not affirm a right to ‘secession’ as a universal principle. Under international law, it is argued, secession is tolerated in instances where it is related to ‘external self-determination’ in which a people are colonized or oppressed by a foreign power. Even so, scholars point out, secession is unsupported if based on a violation of a fundamental norm of international law which prohibits the use of force. International law is also neutral on the question of secession where, as in the case of say Quebec and Scotland, a specific case of oppression cannot be established.
All of this dancing around in international law might be explained by the need to preserve the Westphalian principle of state sovereignty upon which international order is based. This principle is enshrined in the United Nations Charter which states at Article 2(7) that: “Nothing … shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.”
It is for this reason that positivists have long held that international and municipal laws are separate domains, and that where international law conflicts with domestic (municipal) law, the domestic law prevails. Certainly, it is established (for instance by Article 27 of the 1969 Vienna Convention on the Law of Treaties) that municipal rules cannot be used as justification to violate international law. But municipal authorities do proclaim the ultimate superiority of domestic law. For instance, although it is presumed in the United States that Congress will not legislate in a manner that is contrary to the country’s international obligations, it is nonetheless considered that US domestic legislation is supreme even if it breaches international law.
We find something similar even in Common Law countries which have a more benign (‘incorporationist’) view of international law, a view which presumes that municipal laws should not be inconsistent with international law. Even in these countries, it is often held that municipal laws take precedence over international law in cases of conflict.
This is certainly the case in Nigeria which proclaims that its 1999 Constitution is “Supreme” and that “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.” This same Constitution proclaims the “sovereignty and territorial integrity of Nigeria”, declaring at Section 2(1) that “Nigeria is one indivisible and indissoluble sovereign state…” (emphasis added).
I have made this long detour in order to confront the argument made by those cheering the Igbo grandees’ excursion to Abuja that the Buhari government can be persuaded to release Nnamdi Kanu and de-proscribe his group, IPOB, permitting it to continue with its secessionist agitation under some presumed norm of international law. I have shown that there are no firm principles in international law which would compel Buhari to give free rein to IPOB. The man is hardly a nationalist, let alone an internationalist.
Beyond this, we have also not seen in Buhari’s statements or “body language” (as we say in Nigeria) any indication that he is concerned with international conventions over and above the dictates of Nigeria’s domestic law.
At his meeting with the Igbo elders who came to plead for Kanu, Buhari made it clear that the elders were making a “difficult” request which has “serious implications” for the country. He invoked the principle of separation of powers, saying that since Kanu is already standing trial, a presidential intervention would go against the doctrine of separation of powers between the executive and judiciary. Buhari claimed that in his six years so far in office, “nobody would say [that] I have confronted or interfered in the work of the judiciary.” He even argued that the Nigerian government is doing Nnamdi Kanu “a favour” by putting him through legal prosecution. He allowed that when Kanu was re-arrested and brought back to Nigeria after jumping bail, he had felt that it was in Kanu’s interest: “I said the best thing was to subject him to the system,” Buhari told the South East delegation. “Let him make his case in court, instead of giving very negative impressions of the country from outside. I feel it’s even a favour to give him that opportunity.”
Think about the mindset behind these utterances. This is not the inclination of a man who has suddenly found religion; who has realized, as some argue, that it was wrong to have proscribed IPOB; and who supposedly feels embarrassed by international pressure (which I myself have not detected) and is seeking a face-saving exit through a negotiated political solution.
I insist, as I suggested in my original article, that what Buhari and his administration mean by “political solution” will not augur well for IPOB. It means a negotiated demobilization of IPOB and a resort to the institutional means of political protest. It means entrusting the fate of Igbo people entirely to the crop of politicians and associated persons currently representing them, a feckless group who absconded from their duty in the first place, making room for the emergence of a radical non-state actor like IPOB.
Little wonder these same actors have been all over the place hailing the excursion of the Igbo grandees. They are hailing the effort because it will lead in all likelihood to a defenestration of IPOB, and a return to the status quo ante.
It is nothing but ‘retrograde ejaculation’, as they say, this supposedly statesmanlike outing of the Igbo grandees. It is an option that all progressive forces of Igboland should reject.
Let Nnamdi Kanu have his day in court. In a way, it is a win-win situation for him. If Kanu trounces the Nigerian government in its own courts, he will emerge as an invincible hero, and some of his disagreeable behaviors will be forgotten. If he loses and then faces the blunt consequences of conviction, he will be seen as a persecuted Igbo freedom fighter and his suffering will likely rally the fissiparous forces of Igbo politics around a common cause, reaffirming the non-negotiable demand of Igbo people for equity in the Nigerian polity.