Interrogating Legal Issues in Self-Determination Agitations

(Presentation by the Faculty of Law, University of Ibadan, Ibadan, Nigeria)

1. Introduction
Since Nigeria’s independence in 1960, different ethnic political struggles calling for
self-determination through secession from the Federal Republic of Nigeria have been
canvassed. There was a move by the Tiv in the Middle Belt region of Nigeria to
secede from Nigeria.1 One of the most obvious in the history of ethnic struggles for
secession was the movement led by Adaka Boro under the auspices of the Niger Delta
Volunteer Service (NDVS). The NDVS had called for the establishment of the Niger
Delta Republic as a distinct and separate entity from Nigeria.2 There was also the
declaration of Biafra as independent from Nigeria which led to the civil war between
1967 and 1970. At present, there are several movements whose agendas are ethnic
separatism. Some of these movements are the Movement for the Actualisation of the
Sovereign State of Biafra (MASSOB); Movement for the Emancipation of the Niger
Delta (MEND), the Oodua People’s Congress (OPC), the Oodua Liberation
Movement; and more recently the Yoruba Nation agitation. These movements are
borne of ethnic awakening. Most of the ethnic awakening became more pronounced
in Nigeria in the 1990s, and has possibly reached its crescendo now with the activities
of the Indigenous People of Biafra (IPOB) in the South East calling for secession
from the Federal Republic of Nigeria.3
While there have been calls for secession, some have called for ‘restructuring’
the Nigerian federation to achieve what is called ‘true federalism.’4 It is envisaged that
each ethnic group in Nigeria will only be able to achieve its relative independence and
self-determination within Nigeria if ‘true federalism’ is entrenched. In 1984, the
civilian administration of Shagari wanted to create new states. At that time, Nigeria
was made up of 19 states. The National Assembly received about 45 requests. The
House of Representatives endorsed 29 of these requests. But before the Senate could

1
Tekena N Tamuno, ‘Separatist Agitations in Nigeria Since 1914’ (1970) 8(4) The Journal of Modern
African Studies 563, 575-576.
2
Allswell Osini Muzan, ‘Insurgency in Nigeria: Addressing the Causes as Part of the Solution’ (2014)
14 African Human Rights Law Journal 217-243.
3
Gilbert Chukwu Aro and Kelechi Johnmary Ani, ‘A Historical Review of Igbo Nationalism in the
Nigerian Political Space’, Journal of African Union Studies (2017) 6 (2&3) 47, 58-59.
4
On the call for restructuring, see Ambrose Ihekwoaba Egwim, The Dynamics of Federalism in
Nigeria (Switzerland: Palgrave Macmillan 2020) 24-32.

1
endorse these requests, Shagari’s administration was ousted by General Muhammadu
Buhari.5 In addition to the question of secession and the creation of the so-called true
federalism is the issue of resource control. The question of control over natural
resources has been a major issue in agitation for self-determination. 6 In Nigeria,
several self-determination movements from various ethnic groups have evolved over
the years clamouring for self-determination in matters relating to economic, political,
cultural and social interests in the context of natural resources. 7 The main agitation in
Nigeria in connection with natural resources centre on the oil and gas sector. This is
because it is the main stay of the economy.8 But the question of ownership and control
of natural resources is not limited to petroleum but also extends to other natural
resources. However, given pre-eminent role of oil and gas as the main fulcrum of the
economy, the focus of agitation for resource control has been largely directed at the
petroleum industry. The issue of who owns the natural resources in Nigeria has been
controversial over the years. These controversies exist among the federal government,
federating states, and indigenous or host communities where these natural resources
are located.
Against the backdrop of the above situation, this paper seeks to interrogate the
legal issues in self-determination agitations in Nigeria. The paper is divided into four
parts. The first part introduces the paper. The second part examines the concept of
self-determination and its various manifestations in international law and
constitutional law. The third part examines the legal issues arising out of self-
determination agitation in Nigeria. The fourth part concludes the paper.

2. The Concept of Self-Determination

The concept of self-determination is essentially a moral or political idea before it
assumes a legal dimension. In its legal form, it is rooted in international law and
manifests as external self-determination, internal self-determination, self-
determination as indigenous autonomy, self-determination as a right against
5
Ibid 25.
6
R. Pereira and O. Gough, ‘Permanent Sovereignty over Natural Resources in the 21 st Century:
Natural Resources Governance and the Right to Self-determination of Indigenous People under
International Law’ (2013) 14 Melbourne Journal of International Law 1, 11.
7
Z Adangor, Proposals for Equitable Governance and Management of Natural Resources in Nigeria
(2018) 7(1) International Law Research 213-226.
8
See Emeka Duruigbo, ‘Managing Oil Revenues for Socio-Economic Development in Nigeria: The
Case for Community Based Trust Funds’ (2004) 30 North Carolina Journal of International Law 171-
196.

2
intervention, and economic self-determination.9 But these forms are not necessarily
exhaustive of the number of ways the concept can manifest. 10 While self-
determination in its legal form is essentially rooted in international law, it has also
assumed a constitutional dimension.11 Therefore, self-determination as a moral or
political idea will first be discussed before its manifestations under international law
and constitutional law are examined.
Self-determination as a moral or political idea can be said to have started from
John Locke in the 17th century. He developed the theory of the capacity of an
individual to exercise free will and take decisions that can engender guilt. 12 Immanuel
Kant developed the idea further in the 18th century. He linked self-determination to
will which itself is the capacity to take action. 13 At the time Locke and Kant were
developing the idea of self-determination, they had individuals in mind. However, the
idea later transformed into the capacity of a nation or a people to exercise free will. 14
The nationalist ideology of the 19th century gave this transposition a force. While the
word ‘nation’ or ‘people’ are ordinarily plural, the word takes a singular form with the
addition of article ‘a’ to assert the capacity of a group to exercise free will as distinct
from being the summation or aggregate of individual free wills. 15 The transposition of
the idea of an individual capacity to that of a group signified the development from
the moral to the political. Self-determination as a political idea was given expression
by Vladimir Lenin and President Woodrow Wilson. Lenin applied it to allocation of
territories after inter-state armed conflict, colonies and non-colonised peoples under a
foreign rule. While colonised peoples could achieve self-determination through
violence to create a state of their own, non-colonised peoples could only achieve self-
determination through a plebiscite and not violence to create a state of their own. 16
But Wilson did not concede that colonised people could achieve self-determination
through violence. In addition, he suggested that a people could determine its own

9
Rowan Nicholson, ‘The Meaning of Self-Determination’ in Ryan D Griffiths, Aleksandar Pavković
and Peter Radan (eds), The Routledge Handbook of Self-Determination and Secession (Abingdon:
Routledge 2023) 3.
10
Ibid.
11
Marc Weller, Escaping the Self-Determination Trap (Leiden: Martinus Nijhoff 2008) 46–58.
12
John Locke, An Essay Concerning Human Understanding (London, 1689) part iv, xvii.
13
Immanuel Kant, Groundwork for the Metaphysics of Morals (trans T K Abbott & L Denis,
Peterborough, Ontario: Broadview Press, 2005) 86 (original work published 1785).
14
E M Morgan, ‘The Imagery and Meaning of Self-Determination’ (1988) 20(2) New York University
Journal of International Law and Politics 355–404, 357–358.
15
Nicholson (n…) 4.
16
Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge
University Press, 1995) 14–19.

3
form of government.17 In essence, self-determination as a political idea from Lenin
and Wilson’s perspectives contemplate external status while Wilson’s perspective
also includes internal status.

2.1 Self-Determination Under International Law

As previously indicated, self-determination under international law will be discussed
as external self-determination, internal self-determination, self-determination as
indigenous autonomy, self-determination as a right against intervention and economic
self-determination.

External Self-Determination
Self-determination in its external manifestation developed from the concept of self-
determination as a moral or political idea to one of law. However, as a legal concept,
it is much more limited and narrower in application. While self-determination as a
moral or political idea contemplates the capacity of an individual or a group to
exercise free will generally or broadly on any issue, external self-determination
applies to colonised peoples and their capacity to choose self-governing; 18 and peoples
subject to alien subjugation, domination or exploitation outside a colonial context. 19
The Palestinians fall within the category of peoples subject to alien subjugation
outside colonial context. The emergence of external self-determination as a legal right
was as a result of movements calling for the withdrawal of European powers in
Africa, Asia and other parts of the world.20 Since external self-determination relates to
external status, it conveys the right of the colonised peoples to secede from their
colonial overlord. It also implies the right of peoples subject to alien domination to
secede from those dominating them. It is therefore not surprising that article 20(2) of
the African Charter on Human and Peoples’ Rights 21 stipulates 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.’ In
addition, article 20(3) of the Charter recognises the right of the people to the
assistance of state parties to the Charter in their liberation struggle against foreign

17
Ibid 20.
18
Reference re Secession of Quebec [1998] 2 SCR 217, paras 131–132.
19
Reference re Secession of Quebec [1998] 2 SCR 217, paras 133.
20
Nicholson (n…) 6.
21
(Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into
force 21 October 1986).

4
domination, be it political, economic or cultural. It has been suggested that the
African Charter on Human and Peoples Rights is regional customary international law
due to the sui generis nature of the Charter and the wide ratification it has enjoyed
among African state parties.22 In actual fact, as of July 2023, all African states are
parties to the Charter except Morocco.23

Internal Self-Determination
Internal self-determination relates to ethnic, linguistic, religious or racial groups
within an existing state. It relates to a people’s pursuit of its political, economic,
social and cultural development within the framework of an existing state. 24 Article
20(1) of the African Charter on Human and Peoples’ Rights stipulates 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.’ Rules for actualising internal self-determination appear to
include the right of a racial group to participate in the decision making process. 25 They
also appear to include the right of an ethnic, linguistic or religious group to the
recognition of their identity.26 Beyond these two rules, there appear to be no other.
What appears to obtain is a legal principle which is somewhat loose. The principle

22
NJ Udombana ‘Shifting institutional paradigms to advance socio-economic rights in Africa’ (LLD
Thesis University of South Africa 2007) 208. This will have to be a local custom. In the Asylum Case
1950 ICJ Rep 266, the International Court of Justice (ICJ) recognised the possibility of the existence of
a local custom or regional customs among a group of states in their relations inter se, in addition to a
general custom binding on the international community as a whole. Local customs could also exist
between two states, as was held to exist between India and Portugal in the Right of Passage Case 1960
ICJ Rep 6.
23
African Union, ‘List of Countries which have Signed, Ratified/Acceded to the African Charter on
Human and Peoples’ Rights,’ <https://au.int/sites/default/files/treaties/7770-sl-
african_charter_on_human_and_peoples_rights_2.pdf>
24
Reference re Secession of Quebec [1998] 2 SCR 217, paras 126. In Africa, this implies uti possidetis
rule where African states at independence maintains the existing territories from colonial domination.
On uti possidetis rule, see Steven R Ratner, ‘Uti Possidetis and the Borders of New States’ (1996) 90
American Journal of International Law 590. On the principle of uti possidetis juris, see Malcolm N
Shaw, ‘The Heritage of States: The principle of Uti Possidetis Juris Today’ (1997) 67 British Yearbook
of International Law 77; Freddy D Mnyongani, ‘Between a Rock and a Hard Place: The Right to Self-
Determination Versus Uti Possidetis in Africa’ (2008) 41(3) The Comparative and International Law
Journal of Southern Africa 463–479; Jure Vidmar, ‘Confining New International Borders in the
Practice of Post-1990 State Creations’ (2010) 70 ZaöRV 319–356; Arman Sarivarian, ‘Uti Possidetis
Iuris in the Twenty-First Century: Consensual or Customary’ (2015) 22 International Journal on
Minority and Group Rights 511–532.
25
Cassese (n…) 124.
26
Badinter Commission, Opinion No 2 (1991) 92 International Law Reports 167-169, para 2.

5
tends to emphasise the need to pay regard to the freely expressed will of peoples. 27
But the principle does not indicate the units of self-determination, areas or matters
that it applies to nor does it indicate the means or method of its implementation. 28
There is a debatable proposition that if a people is prevented from achieving internal
self-determination, the people is entitled to external self-determination. The argument
advanced in support of this debatable proposition is that when crimes against
humanity and other grave wrongs are committed against a people and prevent them
from actualising their internal self-determination, the people so prevented are entitled
to external self-determination.29 Kosovo and Bangladesh are often invoked to support
this proposition.30

Self-Determination as Indigenous Autonomy

Self-determination as an expression of indigenous autonomy appears to be a mid-way
phenomenon between internal and external self-determination. Indigenous peoples are
like colonised peoples who are entitled to external self-determination. They have been
dispossessed by European powers such as Britain or Spain or are aborigines who have
suffered in the hands of the settlers such as the United States, Canada or Australia. 31
But they also appear like ethnic groups who are now minorities in their traditional
territories and are only entitled to internal self-determination. What appears to have
emerged as a matter of law is that while ethnic minorities are just entitled to
recognition of their identities, indigenous groups have a right to autonomy within an
existing state.32

Self-Determination As A Right Against Intervention

27
International Court of Justice, Western Sahara (Advisory Opinion),(1975) International Court of
Justice Reports 12, para 59.
28
Cassese (n…) 128.
29
Reference re Secession of Quebec [1998] 2 SCR 217, paras 134–135.
30
Alain Pellet, ‘Kosovo: The Questions Not Asked: Self-Determination, Secession, and Recognition’ in
Marko Milanović and Michael Wood (eds), The Law and Politics of the Kosovo Advisory Opinion
(Oxford: Oxford University Press 2015) 268.
31
Nicholson (n…) 9.
32
Marc Weller, ‘Self-Determination of Indigenous Peoples: Articles 3, 4, 5, 18, 23, and 46(1)’ in J
Hohmann and M Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A
Commentary (Oxford: Oxford University Press 2018) 115.

6
Self-determination as a right against intervention tends to imply the right of the
people of a state to choose its own form of government without external
intervention.33 But this appears to be coterminous with the long established principle
of international law prohibiting a state from interfering in the internal affairs of
another state.34 This implies that the right against intervention is being exercised by
the state for its people. However, the right appears to be for by the state while the
people are completely submerged within it. In the end, the right appears to be a re-
branding of the existing right.35

Economic Self-Determination
Economic self-determination necessarily invokes article 1 of the International
Covenant on Civil and Political Rights and article 1 of the International Covenant on
Economic, Social and Cultural Rights. The two identically worded articles stipulate
that all peoples may, for their own ends freely, dispose of their natural wealth and
resources without prejudice to any obligations arising out of international economic
co-operation, based upon the principle of mutual benefit and international law; and
that in no case may a people be deprived of its own means of subsistence. Article 21
of the African Charter is also similarly worded. Article 21(1) provides that ‘All
peoples shall freely dispose of their wealth and natural resources’ and that the ‘right
shall be exercised in the exclusive interest of the people.’ It states further that ‘In no
case shall a people be deprived of it.’ Article 21(3) states that ‘The free disposal of
wealth and natural resources shall be exercised without prejudice to the obligation of
promoting international economic cooperation based on mutual respect, equitable
exchange and the principles of international law.’ Article 21(4) appears to have
privileged African states in disposing their wealth and natural resources. It states that
parties to the Charter ‘shall individually and collectively exercise the right to free
disposal of their wealth and natural resources with a view to strengthening African
unity and solidarity.’
With the above stipulations, this right appears to belong to the people.
However, the right is also more or less an aspect of the right against intervention
implying that the right also belongs to the state. The United Nations (UN) Resolution
33
James Crawford, The Creation of States in International Law (2nd edn, Oxford: Oxford University
Press 2006) 114, 126.
34
L. Oppenheim, International Law: A Treatise vol. I (London: Longmans, Green, & Co. 1905) parts
125, 134.
35
Nicholson (n…) 11–12.

7
1803 (XVII) recognizes that states possess inalienable rights over natural resources in
their domain for the purpose of advancing national development and people’s well-
being.36 Similarly, the UN in another resolution, reaffirmed the ‘inalienable rights of
States to permanent sovereignty over all their natural resources, on land within their
international boundaries as well as those in the sea-bed and the subsoil thereof within
their national jurisdiction and in the superjacent waters.’ 37 In addition, the Charter of
Economic Rights and Duties of States, which was adopted by the United Nations
General Assembly in 1974, provides that: ‘Every State has the sovereign and
inalienable right to choose its economic system as well its political, social and cultural
system in accordance with the will of people, without outside interference, coercion or
threat in any form whatsoever.’38 While these international instruments are not legally
binding; nonetheless, they constitute soft laws because they operate within the UN
system and have wide coverage.39 In any event, their principles have been
incorporated and well-articulated in United Nations Convention on the Law of the
Sea40 and Energy Charter Treaty41 and have thus become binding at least on parties to
these treaties. Therefore, the people within an existing state and the state itself tend to
have this right. In addition, this right is embedded in internal self-determination and
the right to autonomy of the indigenous people.
But within the meaning of the provisions of the African Charter, the right
appears to belong to the people and that the state only exercises this right for the
people. This interpretation appears to be justified based on article 21(1) of the African
Charter which emphasises the exercise of that right ‘in the exclusive interest of the
people.’ The word: ‘exclusive’ here justifies the interpretation. The interpretation is
also somewhat reinforced by article 21(5) of the Charter which stipulates that state
parties ‘shall undertake to eliminate all forms of foreign economic exploitation
36
UN General Assembly Resolution 1803 (XVII). Permanent sovereignty over natural resources,
United Nations General Assembly Seventeenth Session, Resolution No. A/RES/1803/(XVII), 14
December 1962
37
UN General Assembly, Permanent Sovereignty over Natural Resources, 17 December 1973,
A/RES/3171
38
Charter of Economic Rights and Duties of States, General Assembly Resolution 3281 (XXIX), New
York, 12 December 1974.
39
PO Olalere, ‘Searching for Contractual Equilibrium: Is a Production-Sharing Agreement in the Oil
and Gas Industry a Fair Balance between the Interests of the Host State, National Oil Company and
Foreign Investor?’ (2015) 1 International Energy Law Review 30, 33.
40
See particularly arts. 56, 73, 77 and 193.
41
The Energy Charter Treaty provides in Article 18 that ‘The Contracting Parties recognize state
sovereignty and sovereign rights over energy resources. They reaffirm that these must be exercised in
accordance with and subject to the rules of international law.’ Note however that Nigeria is not a party
to the treaty but an observer.

8
particularly that practiced by international monopolies so as to enable their peoples to
fully benefit from the advantages derived from their national resources.’ The
difference between saying the state and the people can both exercise the right; and
saying only the people have the right but the state can exercise it for them in certain
instances; is that in the former the state interest can be interpreted to override that of
the people whereas in the latter only peoples’ interest exists.

2.2 Self-Determination Under Constitutional Law

The concept of self-determination in its different manifestations have been embodied
in different constitutions and statutes of constitutional purport across the globe. In this
respect, self-determination has assumed a constitutional dimension. Thus, there exist
constitutional external self-determination, constitutional internal self-determination,
constitutional self-determination as indigenous autonomy, constitutional self-
determination as a right against intervention and constitutional economic self-
determination. Each of them will be examined below.

Constitutional External Self-Determination

Ethiopia’s Constitution 1995 stipulates in Article 39, section 1 that all the groups
recognised under the section are ensured an ‘unconditional right to self-determination,
including the right to secession.’ This is a manifestation of external self-
determination. But the Ethiopia’s experience offers a unique and interesting
dimension. As previously noted, external self-determination is limited to colonised
peoples and their right to secede from their colonial overlord; and the right of peoples
subject to alien domination to secede from those dominating them. But in this
instance, it is the right of ethnic groups to secede. It goes beyond their right to the
recognition of their identity. It also extends beyond the right of indigenous people to
autonomy. In spite of this, power is concentrated at the centre making secession
remote. In practical terms, what obtains is internal self-determination. In actual fact,
the war between Ethiopia and the warring groups in its territory tends to suggest that
secession is not likely to be achieved easily.

Constitutional Internal Self-Determination

In the Ethiopia’s Constitution 1995, there is a manifestation of internal self-
determination. Article 39 recognises the rights of nations, nationalities and peoples. It

9
defines a nation, nationality or people as ‘a group of people who have or share
common large measure of a common culture or similar customs, mutual intelligibility
of language, belief in a common or related identities, a common psychological make-
up and who inhabit an identifiable, predominantly contiguous territory.’ 42 This right is
a recognition of ethnic identities within Ethiopia and constitutes internal self-
determination. In addition, the Ethiopian federation is based on ethnicity and it can be
rationalised as a recognition of ethnic identity.

Constitutional Self-Determination As Indigenous Autonomy

Self-determination as an expression of indigenous autonomy applies in Canada.
Canada recognises the right of indigenous people to self-determination under section
35, Part II of its Constitution Act 1982. It has signed, pursuant to this Act, over 22
self-government agreements. These agreements vary in scope. 43 In some instances, a
limited government is recognised over some subject matter such as education. A
typical example is partnership on education with Mi’kmaq communities in Nova
Scotia. In some instances, traditional authorities and forms of government are
recognised. In 2000, the first modern day treaty was signed in British Columbia.
Under this agreement, the tribal government of Nisga’a Lisims was recognised by the
provincial and national governments. In 2018, the Canadian Government issued
‘Principles respecting the Government of Canada’s Relationship with Indigenous
Peoples.’ It was considered a ‘starting point for the Crown to engage in partnership,
and a significant move away from the status quo.’ 44 The Principles stipulate that ‘(1)
All relations with indigenous peoples need to be based on the recognition and
implementation of their right to self-determination, including the inherent right to
self-government;’ and that ‘(4) Indigenous self-government is part of Canada’s
evolving system of cooperative federalism and distinct orders of Government.’
Self-determination as an expression of the right to autonomy of indigenous
peoples also operates under the laws of Panama. In 1938, Panama established special
autonomous region known as Kuna Yala. In 1953, its powers were defined under
Legislative Act No. 16. Under the arrangement, Kuna Yala does not pay income tax
in Panama, has its own government and police force and controls tourism in its

42
See article 39(5).
43
Amanda Cats-Baril, ‘Constitution Brief: Self-determination’ (2018) International Institute for
Democracy and Electoral Assistance 1–12, 7.
44
Ibid.

10
territory. In Panama’s Constitution 1972, article 5 permits Panama to create ‘political
divisions by law, either to be subject to special rules, or for reasons of administrative
convenience or public service.’ Self-determination as the right of indigenous people to
autonomy also manifests in the Bolivian Constitution 2009. Article 2 stipulates that
‘Given the pre-colonial existence of nations and original indigenous peoples and their
ancestral control over their territories, one guarantees their self-determination in the
setting of State unity, that consists of their right to autonomy, to self-governance, to
their culture, to the recognition of their institutions and the consolidation of their
territorial identities, which conform to this Constitution and to the Law.’

Constitutional Self-Determination As A Right Against Intervention

In the Constitution of Bangladesh 1972, it is stated in the preamble that the
independence of Bangladesh was achieved ‘in due fulfilment of the legitimate right of
self-determination.’ Similarly, Ukraine’s Constitution 1996 also stipulates in its
preamble that the Constitution is adopted based on ‘the right to self-determination
realised by the Ukrainian nation.’ These provisions appear to be expressing the right
against intervention. They tend to express the right of the people of Bangladesh and
Ukraine to choose their own form of government without external intervention. Self-
determination as a right against intervention is being exercised by the people in this
instance. In Part 1, article 8 of the Constitution of Timor-Leste 2002, it is provided
that ‘on matters of international relations, the Democratic Republic of East Timor
governs itself according to the principles of national independence, the right of the
peoples to self-determination’ while in article 2, section 2 of the Constitution of the
Philippines 1987, it is stipulated that ‘in its relations with other states the paramount
consideration shall be national sovereignty, territorial integrity, national interest, and
the right to self-determination.’ In the Constitution of Timor-Leste 2002, the people
and the State of Timor-Leste are both exercising the right to self-determination
whereas in the Constitution of the Philippines 1987, it is the State of Philippines that
is exercising the right to self-determination. But, as previously noted, the state appears
to be exercising the right in practical terms. This implies that there is no difference
between the situation in East Timor and the Philippines.

3. Legal Issues Arising from Self-Determination Agitations in Nigeria

11
Considering the introductory part of this paper and the preceding sections on self-
determination, the legal issues arising out of self-determination agitations in Nigeria
are in respect of external, internal and economic aspects of self-determination. They
are, therefore, examined below.

3.1 External Self-Determination: Secession

As previously noted, external self-determination from the standpoint of international
law grants colonised peoples the right to secede from their colonial overlord. It also
grants peoples subject to alien subjugation, domination or exploitation outside a
colonial context the right to secede. From constitutional law perspective, only
Ethiopia and possibly some few states appear to grant ethnic groups the right to
secede. Even in this instance, the right cannot be actualised in fact. The Constitution
of the Federal Republic of Nigeria, 1999 (Nigerian Constitution 1999) is silent on
secession. It does not permit secession neither does it prohibit it. Interpreting this
constitutional silence may involve critical engagement with some other issues upon
which the Constitution is explicit. Some of the issues upon which the Constitution is
explicit which are relevant to interpret Nigeria’s constitutional silence include the
amendment of the constitution, emergency powers, territorial integrity, and
fundamental rights.
The Nigerian Constitution 1999 provides for amendment. 45 Since secession
alters a state’s territory and the Nigerian Constitution recognises the territory making
up the entity called Nigeria and its delimitation into states and local governments, it
follows that the Constitution may have to be amended before secession can be
achieved. The procedure for amending the Constitution is onerous. It involves 24 out
of the 36 states of the federation and the National Assembly 46 together with
presidential assent.47 Achieving secession in light of this procedure is most unlikely.
Secession envisaged above is through a peaceful means. But secession is often
disruptive and sometimes accompanied with war or extreme violence. The Biafran
War previously alluded to is a case in point. The Nigerian Constitution 1999
empowers the President to exercise emergency powers. 48 The power may be exercised
45
See s 9.
46
See s 9(2).
47
See s 58(3).
48
See s 305. On emergency powers, see Giorgio Agamben and Daniel Heller-Roazen (tr), Homo Sacer:
Sovereign Power and Bare Life (Stanford: Stanford University Press 1998); Nasser Hussain, The
Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan
Press 2003); John Ferejohn and Pasquale Pasquino, ‘The Law of the Exception: A Typology of

12
if the Nigerian federation is at war.49 This implies that secession bid accompanied by
war can provoke the invocation of this provision. The power can also be exercised
even when there is no war but when it is imminent. 50 Since secession is often
disruptive, the imminence of war is inherent in it. Again, this provision can be
invoked to checkmate it. Even if there is no war and it is not imminent, the possibility
of actual breakdown of public order and public safety cannot be ruled out and this is
also sufficient to justify the invocation of emergency powers. 51 Where there is no
actual breakdown of public order and public safety but its breakdown is most likely,
the emergency powers can also be invoked.52 In any event, if none of the above
conditions is present, once ‘there is any other public danger which clearly constitutes
a threat to the existence of the Federation,’emergency powers can be invoked.53
In addition to the recognition of the exercise of emergency powers, the
Nigerian Constitution 1999 also recognises the armed forces for the Federation. In
addition to its power to defend Nigeria from external aggression, 54 it also has the duty
of maintaining Nigeria’s territorial integrity. 55 The fact that the Constitution makes a
distinction between maintaining territorial integrity and defending Nigeria from
external aggression means that maintaining territorial integrity is a separate and
distinct mandate. When this provision is read with section 2(1) of the Nigerian
Constitution 1999 which stipulates that Nigeria is one indivisible and indissoluble
sovereign state, the constitutional silence has tilted heavily against secession. Since
secession alters the territory of the state involved through severance, it means that

Emergency Powers’ (2004) 2(2) International Journal of Constitutional Law 210; Giorgio Agamben
and Kevin Attell (tr), State of Exception (Illinois: University of Chicago Press 2005); Victor V Ramraj,
Michael Hor and Kent Roach (eds), Global Anti-Terrorism Law and Policy (Cambridge: Cambridge
University Press 2005); Oren Gross and Fionnuala Ní Aoláin (eds), Law in Times of Crisis: Emergency
Powers in Theory and Practice (Cambridge: Cambridge University Press 2006); Victor V Ramraj (ed),
Emergencies and the Limits of Legality (Cambridge: Cambridge University Press 2008); Nomi Claire
Lazar, States of Emergency in Liberal Democracies (Cambridge University Press 2009); Victor V
Ramraj and Arun K Thiruvengadam (eds), Emergency Powers in Asia: Exploring the Limits of
Legality (Cambridge: Cambridge University Press 2010); Aniceto Masferrer (ed), Post 9/11 and the
State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (Dordrecht:
Springer 2012); Scott P Sheeran, ‘Reconceptualizing State of Emergency under International Human
Rights Law: Theory, Legal Doctrine, and Politics’ (2013) 34(3) Michigan Journal of International Law
491; John Reynolds, Empire, Emergency and International Law (Cambridge: Cambridge University
Press 2017); Ryan Alford, Permanent State of Emergency: Unchecked Executive Power and the
Demise of the Rule of Law (Montreal: McGill-Queen’s University Press 2017).
49
Section 305(3)(a).
50
Section 305(3)(b).
51
Section 305(3)(c).
52
Section 305(3)(d).
53
Section 305(3)(f).
54
Section 217(2)(a).
55
Section 217(2)(b).

13
secession bid in Nigeria will have to contend with this mandate and the express
declaration of the Constitution on the indivisibility of Nigeria as a sovereign entity.
The Nigerian Constitution 1999 provides for the human right to freedom of
association56 and the human right to freedom of expression 57 as fundamental rights.
The right to freedom of association is a right that can be exercised by an individual
and a group. The right to freedom of expression includes the right to hold opinion.
The implication is that a group of people committed to secession can jointly form an
association and give expression to their view. However, fundamental rights including
these rights can be derogated from in the interest of defence, public safety, public
order, public morality or public health. 58 Since secession is often disruptive, the right
to freedom of association and the right to freedom of expression may be curtailed to
the extent that their support for secession is disruptive in order to maintain public
order or public safety. But the measures taken by the Nigerian government must be
reasonably justifiable in a democratic society. 59 This means that the measures must
not be in excess of the danger posed to public order or public safety. At this point, it is
noteworthy to mention the African Charter. This is because it is on human rights and
has been enacted into law in Nigeria.60 As previously noted, the Charter recognises the
right of the colonised peoples to secession under its article 20(2). While the provision
directly operates in Nigeria since the Charter has been enacted into law, the point is

56
Section 40.
57
Section 39.
58
Nigerian Constitution 1999, s 45. This provision is found in nearly all constitutions of countries in
sub-Saharan Africa. However, the provisions vary in scope and legislative approach. See the following
examples: Constitution of Ethiopia 1995 art 93(4); Constitution of Angola 1992 art 52; Constitution of
Cape Verde 1992 art 26; Constitution of Guinea-Bissau 1984 art 31; Constitution of Mozambique 2004
art 72; Constitution of Eritrea 1997 art 27(5)(a); Constitution of Namibia 1990 art 24(3); Constitution
of Rwanda 2003 art 137; Constitution of Swaziland 2005 s 38; Constitution of Uganda 1995 art 44;
The Constitution of the Republic of Ghana art 31(10); Constitution of the Republic of Tanzania 1977
art 31; Constitution of Botswana 1996 s 16; Constitution of the Republic of the Gambia 1996 s 35;
Constitution of the Republic of Malawi 1994 s 45; Constitution of the Republic of South Africa 1996 s
37; Constitution of Kenya 2010 art 58.
59
See Grant Huscroft, Bradley W Miller and Grégoire Webber (eds), Proportionality and the Rule of
Law: Rights, Justification, Reasoning (New York: Cambridge University Press 2014) 2; Stavros
Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 International Journal of
Constitutional Law 468; Alec Stone Sweet and Jud Mathews, Proportionality, Balancing and
Constitutional Governance: A Comparative and Global Approach (Oxford: Oxford University Press
2019). See also Fair-Trade Independent Tobacco Association v President of the Republic of South
Africa and Another 2020 (6) SA 513 (GP) (South Africa); Reyno Dawid de Beer and Others v The
Minister of Corporate Governance and Traditional Affairs 2020 (11) BCLR 1349 (GP) (South Africa);
Law Society of Kenya v Inspector General, National Police Service Petition 120 of 2020 (Covid 025),
16 April 2020 [2020] eKLR (Kenya); Joan Akoth Ajuang and Another v Chief Ukwala Location
Constitutional Petition No. 1 of 2020 [2020] eKLR (Kenya).
60
African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9 Laws of
the Federation of Nigeria (LFN) 2004.

14
that there is no colonised people in Nigeria within the meaning of the Charter. As a
matter of fact, there is no longer colonised people in Africa with the destruction of
apartheid in South Africa.

3.2 Internal Self-determination: The Call for ‘Restructuring’

Internal self-determination, as previously noted, relates to ethnic, linguistic, religious
or racial groups within an existing state. With respect to an ethnic, linguistic or
religious group, the only applicable rule is that they are entitled to the recognition of
their identity. In Nigeria, two provisions are most relevant here. The first one is
section 14(2)(3) of the Nigerian Constitution 1999 which stipulates that the
government of the federation shall reflect federal character by preventing the
predominance of a few ethnic group in governance. But it appears that this does not
constitute a rule since the provision is under the Fundamental Objectives and
Directive Principles of State Policy (Fundamental Objectives) which is not justiciable.
Within the meaning of the concept of internal self-determination in its legal form, it
tends to constitute a principle in its loose expression. The second provision is section
42(1) of the Nigerian Constitution 1999 which prohibits discrimination on ethnic
grounds as a fundamental right. This can be said to constitute recognition of identity
as a legal rule within the meaning of the concept of internal self-determination as a
legal expression.
At this point, it becomes relevant to address Nigeria’s federalism. Unlike
Ethiopia, Nigeria does not strictly structure its federalism along ethnic lines. The
Constitution declares Nigeria as a federation of 36 states and a capital territory. 61 This
tends to suggest that ethnicity is not in the bargain. But while the Nigerian
Constitution 1999 does not expressly acknowledge ethnicity as a foundation of its
federal structure, nonetheless ethnicity substantially informs it even though it also
exhibits balancing in terms of approximate equality of size and power among the
federating states. History bears this out. The origin of federalism in Nigeria can be
traced to the British colonial rule in Nigeria. The British colonial government
introduced federalism into Nigeria for administrative convenience. But it was
necessitated by the multi-ethnic, multilingual and diverse nature of the various groups
that made up the geographical territory referred to as Nigeria. 62 Officially, the

Nigerian Constitution 1999, ss 2 and 3.

61

Some authors argue though that the British government introduced federalism for the purpose of
62

maintaining some form of reins on the Nigeria post-independence. Olusegun Adeyeri, ‘Federalism and

15
Lyttleton Constitution of 1954 adopted the practice of federalism. 63 The Constitution
was introduced following the crises generated by the Macpherson Constitution of
1951 which generated agitations on the notion of self-government and the Kano riot
of 1953.64 Nigerian federalism became consolidated at independence and
subsequently became operational through the various constitutions. 65 Over several
constitutions, there have been structural changes to the form of federalism practised in
Nigeria. From starting out as a region-based component government in 1960 to a
state-based component government following the incursion of military regimes, the
Nigerian federalism has been structured through the lenses of regional agitations for
representation and inclusion among other factors.

3.3 Economic Self-Determination: Ownership and Control of Natural

Resources

In the preceding discussion, it is noted that the right to economic self-determination

tends to belong to the people and the state. However, within the meaning of the
African Charter the right belongs to the people and that state only exercises this right
at the international plane against other states but on behalf of the people. However,
Nigeria, like most states, operates the domanial system of ownership of natural
resources and vests its ownership in the government.66 Hence, the government is the
owner of the abundant natural resources within its territory and has been determining
the best way to exploit and utilise these resources to boost national development
objectives. The entirety of the legislation governing the control of natural resources
vests the ownership and the control of these resources in the federal government. 67 At
present, the Nigerian Constitution 1999 which is the basic norm from which all other
laws in Nigeria derive their authority provides for the vesting of all minerals, mineral

the Challenges to Nation Building in Nigeria’ (2010) International Journal of Research in Arts and
Social Sciences 23-38
63
Before the Lyttleton Constitution, a similitude of a federal structure was adopted in 1939 under the
administration of Sir Bernard Bourdillon who divided the southern protectorate into two. The Richards
and Macpherson Constitution of 1946 and 1951 respectively created a decentralised unitary system but
did not fully incorporate federalism.
64
S Oyedele, ‘Federalism in Nigeria’ in Hassan Saliu (ed) Issues in Contemporary Political Economy
of Nigeria. (Ilorin Sally and Associates 1999) 57-58.
65
The periods of military regimes however, operated almost like a unitary government with excessive
powers vested in the central government.
66
See Y Omorogbe and PK Oniemola, ‘Property Rights in Oil and Gas under Domanial Regimes’ in B
Barton, A Bradbrook, L Godden and A McHarg (eds.), Property and the Law in Energy and Natural
Resources (Oxford University Press, London 2010) 115-139.
67
Lanre Aladeitan, ‘Ownership and Control of Oil, Gas and Other Mineral Resources in Nigeria:
Between Legality and Legitimacy’ (2013) 38(2) Thurgood Marshall Law Review 160-197.

16
oils and its products in the federal government. This provision finds expression in
section 44(3) of the Nigerian Constitution 1999. It provides that: ‘Notwithstanding the
foregoing provision of this section, the entire property in and control of all minerals,
mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon
territorial water and the Economic Zone of Nigeria shall vest in the government of the
federation and shall be managed in such a manner as may be prescribed by the
National Assembly.’ Part 1 of the 2nd Schedule containing the Exclusive Legislative
List under the Constitution also provides that mines and mineral, as well as oil fields,
geographical surveys and natural gas, and oil mining are matters to be legislated upon
exclusively by the National Assembly.68
Similarly, section 1 of the Minerals and Mining Act 2007 provides that ‘The
entire property in and control of all mineral resources in, under or upon any land in
Nigeria, its contiguous continental shelf and all rivers, streams and watercourses
throughout Nigeria, any area covered by its territorial waters or constituency and the
Exclusive Economic Zone is and shall be vested in the Government of the Federation
for and on behalf of the people of Nigeria.’ In the same vein, the Petroleum Industry
Act 2021 in section 1 provides that ‘The property and ownership of petroleum within
Nigeria and its territorial waters, continental shelf and exclusive economic zone is
vested in the Government of the Federation of Nigeria.’ The vesting of the ownership
of natural resources in Nigeria in the government has led to some legal issues notably
between the littoral states and the federal government. The case of Attorney General
of the Federation v Attorney General of Abia State & Ors 69 is a classical illustration of
this issue. The gravamen or fulcrum of the case was on the resource control rights
regarding who owns the mineral resources found in the off-shores located in the eight
coastal states which include Rivers, Delta, Akwa Ibom, Bayelsa, Cross-River, Abia,
Edo and Imo states of Nigeria. The Supreme Court unequivocally held that the control
of petroleum resources is exclusively vested in the federal government.
The implication for economic self-determination is that the right is non-
existent in Nigeria. While the African Charter has been enacted into law in Nigeria
and its provisions operate in Nigeria, the point is that the Nigerian Constitution 1999
is superior to any other law in Nigeria including a statute that implements a treaty

68
See item 39.
69
2006) 6 NWLR (Pt 764) 542–905.

17
such as the African Charter.70 Thus, the right to economic self-determination vested in
the people exclusively under the Charter constitutes a nullity under the Nigerian
Constitution 1999 which vests it in the federal government. But it is noteworthy that
any human rights violated in the course of the use of these natural resources are not
necessarily rendered ineffective. It is therefore understandable while local
communities are typically not considered by Nigeria to have a claim of ownership of
the resources. But they maintain that they have vested interests and should have a say
in the administration, distribution, and use of any natural resources in their territory.
Communities want to manage these resources and not just get a cut of the profits.
Communities’ aspiration to have been involved in exploration and production is
intrinsically considered by them as their legitimate rights and more so because of the
impacts of the activities of oil companies. 71 This situation reflects the tension between
Nigeria as a state entity and the people in the exercise of the right to economic self-
determination.
Nigeria has however taken some measures to address the issue of resource
control in various ways. The measures deployed by the government include the
constitutional provision of derivation formula,72 the establishment of the defunct Oil
Mineral Area Producing Commission (OMPADEC)73 and now the Niger Delta
Development Commission, and more recently the passage of the Petroleum Industry
Act 2021, which establishes the Petroleum Host Communities Trust Fund to meet the
sustainable development and prosperity of host communities. 74 Under the Niger Delta
Development Commission (NDDC) (Establishment etc.) Act 2000, 75 oil companies
are required to make a payment of 3% of their annual budget cost into the NDDC
fund, which is earmarked for the development of the Niger Delta. This development
brought by the NDDC Act has not been taken as being sufficient in cushioning the
need for continuous agitation for resource control in Nigeria. The Petroleum Industry
Act 2021 creates an arrangement for the use of trust funds under which oil companies
(holders or licences and leases) are obliged to create a trust fund duly registered with
70
Abacha v Fawehinmi [2000] 6 NWLR (Pt 660) 228; (2000) vol 2 HRLRA (Human Rights Law
Report of Africa) 1.
71
R Ako, ‘Nigeria’s Land Use Act: An Anti-Thesis to Environmental Justice’ (2009) 53 (2) Journal of
African Law 289–304.
72
Section 162(2) of the Nigerian Constitution 1999.
73
See Omotola J Shola, ‘From the OMPADEC to the NDDC: An Assessment of State Responses to
Environmental Insecurity in the Niger Delta, Nigeria’(2007) 54(1) Africa Today 73–89.
74
See Yinka Omorogbe, ‘The Petroleum Industry Act from A Governance Perspective’ (2022) 7
Crescent University Law Journal 22, 33.
75
Cap N86 Laws of the Federation of Nigeria 2004.

18
the Corporate Affairs Commission to be used in meeting the developmental needs of
the petroleum host communities.76 The fund is required to enhance the transformation
of the Niger Delta by putting in place developmental projects and sustainable
development initiatives under the framework mechanism for the trust fund. 77 The
establishment of the trust fund has been criticised. It is considered by some to be only
a paltry 3% of the operational expenditure of the oil companies going by the level of
environmental damage caused by petroleum operations in these communities.
Irrespective of the criticism levelled against the measures taken by the government,
the point remains that there is no economic self-determination in Nigeria. In actual
fact, the premise of the measures is that the natural resources in Nigeria belong to
Nigeria as a state entity with the federal government as its agent and that it has
exclusive competence to determine what to do.

4. Conclusion
This paper examined the legal issues involved in self-determination agitations in
Nigeria. It was found that self-determination started as a moral or political concept
before it developed into a legal concept under international law. Under international
law, self-determination has emerged as external self-determination, internal self-
determination, self-determination as indigenous autonomy, self-determination as a
right against intervention and economic self-determination. It has also manifested in
the same form in constitutional law. In Nigeria, it was found that self-determination
agitations gave right to external self-determination, internal self-determination and
economic self-determination. Against the backdrop of these findings, it was argued
that external self-determination implicates amendment of the constitution, emergency
powers, territorial integrity, and fundamental rights and that while the Nigerian
Constitution is silent on secession, the interpretation of such silence denies secession
right in Nigeria. It was also argued that internal self-determination manifests as the
right against discrimination on ethnic grounds as a fundamental right and that
Nigeria’s federalism has its root in ethnic composition in Nigeria. It was further
argued that economic self-determination does not exist in Nigeria as natural resources
are vested in the government while the interest of the people are undermined.

76
PIA, s 235(1).
77
Nweke Prince Nweke, ‘Innovations, Prospects and Shortfalls of Petroleum Industry Act (PIA) 2021’
(2022) 6(1) African Journal of International Energy and Environmental Law 217, 220.

19