This is the concluding part of this discourse which was first published in our edition of Tuesday.BE that as it may, with a feeling of legitimate possession of the two protectorates “by treaty, grant, usage, sufferance and other lawful means”, Sir Frederick Lugard dispatched confidential reports to the Colonial Secretary to amalgamate the two territories.
Lugard secured approval by Letters Patent and Order in Council pursuant to Foreign Jurisdictions Act 1890; and the merger became a legal fact. The amalgamation was a creation of Letters Patent and Order in Council, and not a treaty. The new boundaries were defined by Colony of Nigeria Boundaries Order in Council of November 22, 1913, effective 1st January, 1914. The only problem was Egbaland, recognized as a sovereign state by the Treaty with Carter.
Camouflaging under Egbaland’s internal unrest, the British convinced (cajoled) Egba to have her unique treaty annulled. Alake and his Chiefs consented and on 16th September, 1914, Egbaland was finally placed “unreservedly under the Government of the Protectorate of Nigeria”. The Amalgamation was a product of administrative fiat same as the latter-day balkanization of Nigeria into States by Generals Yakubu Gowon, Olusegun Obasanjo, Ibrahim Babangida and Sani Abacha.
There was no consultation with the natives and no agreement on amalgamation. The British felt on good legal standing as sole administrator based on “cession” and “protection” treaties to re-structure their new domain as they deemed fit. Allusion to any amalgamation treaty would have a corollary effect of adding indigenous consent to the act which would be a study in revisionist history.
The 1914 Nigerian was not considered legally capable of entering into a treaty with Britain, as they were considered conquered people and with their territory legitimately possessed. The amalgamation was therefore not a term agreement, but mere administrative decision. Both at the international customary law which governs the pre-1914 treaties and under the latter day Vienna Convention on the Law of Treaties 1969, the 100 year rule has no basis. There is no jus cogens fixing treaties to 100 years lifespan. A treaty’s lifespan is governed by rules of invalidation, termination and withdrawal. The pre-1914 treaties were made in perpetuity.
The resolution of the matter is that on 1st October, 1960, the British Crown abdicated their possession to indigenous political authorities. Today, the Nigerian Government is corporately the legal successor to the abdicated British authority. Even with its much-vaunted shortcomings, the 1999 Constitution supersedes the amalgamation in succession of legal norm. Today, the 1999 Constitution is unarguably Law. Section 2(1) provides that “Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria”.
It is legally preposterous to profile Nigeria’s de-amalgamation on an imaginary treaty. The 1999 Constitution, although, General Abdusalami Abubakar’s Decree No. 24 of 1999, and with its poor record of consultation, is Nigeria’s Grundnorm, being grosso modo effective.
I rely on Professor Hans Kelsen’s postulations on the Grundnorm in his Pure Theory of Law used for legal justification for extra-constitutional events or revolutions. This was applied in State v Dosso (1958) 2 PSCR 180 (Pakistan), Ex Parte Matovu (1966) EALR 514 (Uganda), Madzim Bamuto v Lardner-Burke (1969) 1 AC 645 (South Rhodesia – Zimbabwe), Lakanmi v AG West (1971) 1 UILR Vol. 1 201 (Nigeria) among other decisions.
The 1999 Constitution even with its poor record of consultation had attained effectiveness as Nigeria’s top Legal Norm. Nigeria did not therefore legally expire on 1st January, 2014. Nigeria has gone far beyond a de-amalgamation of her 1914 amalgamation. If Nigeria would be dissolved, it would be through a popular political process, not by expiration of an imaginary treaty. This is in view of Section 2(1) of the 1999 Constitution. Until then Nigeria remains. For those who wish Nigeria to expire by treaty, the disappointing news is: there is no ‘Best Before’ label on Nigeria.
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