Lessons of the UK Supreme Court Judgement on Scotish Independence Refereudum and Calls for Self Determination in Nigeria.
By Dele Ogun
This judgment is significant because as we speak two Nigerians, One Igbo, the other Yoruba are in jail, In Britain and in Nigeria, for what can be called Self-determination related offences stemming from the fact that the Nigerian union, which Britain created, is said to be” indivisible and indissoluble”. In contrast, the British union makes provision for secession and self-determination for its component nationality groups.
As King Charles III succeeds to the position of head of the British Commonwealth:
Nnamdi Kanu: British citizen, kidnapped in a Commonwealth country by a Commonwealth country; tried in accordance with the Common-law inherited by Britain and acquitted and ordered to be released, but now held in prison at President Buhari’s pleasure.
Adeyinka Grandson: British citizen, arrested, charged and jailed in Britain for Buhari’s pleasure.
Self Determination in Britain
The history of self-determination in Britain has been dynamic. 6th December, 2022 was the centenary of the creation of the Irish Free State (popularly known as the Republic of Ireland) when the Irish Free State Constitution Act was given the royal assent. And then there was the Blair Government’s Devolution Bill 1998, out of which came the Scotland Act of 1998 giving birth to the Scottish Parliament. Out of the same Devolution Bill came the Welsh and Northern Ireland Assemblies.
Is it not time to ask ourselves what this Commonwealth really means when best practice is not shared?
An important development occurred on 23rd November 2022 when the UK Supreme Court delivered a judgment on the Scotland Act 1998.
The Scottish Parliament, led by the Scottish National Party (SNP), held a Referendum in 2014 for Scottish Independence which they lost by a narrow margin. They now want to have another referendum to ask: “Should Scotland be an Independent Country?”. The Westminster Parliament does not want this second referendum to happen.
The 2014 Referendum needed the UK Parliament to pass an amendment to the Scotland Act 1998 to facilitate the holding of that Referendum.
The issue for decision by the Supreme Court was whether the Scottish Parliament can hold another referendum without needing further enabling legislation from the UK Parliament. The Supreme Court ruled that, on the wording of the legislation, the Scots could not hold a new referendum without the permission of the Westminster Parliament.
That part of the Judgement was specific to the UK legislation. However, the SNP, who were interveners in the proceedings, had run an argument of broader import based on the UN Charter rights of self-determination. They argued that the right of self-determination is a fundamental and inalienable right in International law.
They relied upon General Assembly Resolution 1514 of 14 December 1960:
Declaration on the Granting of Independence to Colonial Countries and Peoples
Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to promote social progress and better standards of life in larger freedom,
Recognizing the passionate yearning for freedom in all dependent peoples and the decisive role of such peoples in the attainment of their independence,
Aware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitute a serious threat to world peace,
Considering the important role of the United Nations in assisting the movement for independence in Trust and Non-Self-Governing Territories,
Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations,
Convinced that the continued existence of colonialism prevents the development of international economic co-operation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace,
Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory,
Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations;
And to this end
Declares that:
- The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.
- 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.
Now, the UK Supreme Court rejected the SNP’s attempt to rely on the UN Charter.
The decision led a One Nigeria friend to start crowing with an announcement in the following terms:
Implications of UK Supreme Court’s Judgement Rejecting Scotland’s right to have an Independence Referendum
To all those Oduduwa Republic & Biafra Agitators living in the UK Diaspora spreading Agitations to Scatta9ja The UK Courts have confirmed there is no Law enabling Scottish Parliament to conduct an Independence Referendum.
Where is the Universal Right for a Referendum to Secede? This Judgement proves once again no such Universal Right Exists. Scotland like our states has its own Executive, Legislature & Judiciary. Yet some erroneously Claim they are any different from a Collection of states.
It’s time to Face Reality and Build on the Nation we have & Focus on Developing your Regions within the Parameters of our Federation.
It was clear that our ‘indissoluble and indivisible friend’ had not read, or had not understood, the judgment. Because what the Supreme Court said was:
There are insuperable obstacles in the path of the intervener’s argument based on self-determination.
First, the principle of self-determination is simply not in play here. The scope of the principle was considered by the Supreme Court of Canada in the Reference re Secession of Quebec [1998] 2 SCR 217. There, the Governor in Council referred a series of questions to the Supreme Court including whether there exists a right to self-determination under international law that would give Quebec the right to secede unilaterally. In its judgment the Supreme Court explained (at paras 136-137) that Canada was a sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction. It considered that the then current constitutional arrangements within Canada did not place Quebecers in a disadvantaged position within the scope of the international law rule. It continued:
“In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions.” (at para 138)
It went on to say that in other circumstances peoples were expected to achieve self-determination within the framework of their existing state:
“A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the National Assembly, the legislature or the government of Quebec do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.” (at para 154)
In our view these observations apply with equal force to the position of Scotland and the people of Scotland within the United Kingdom. They are also consistent with the United Kingdom’s submission to the International Court of Justice in the case of Kosovo, adopted by the intervener as part of its submissions in the present case: “To summarise, international law favours the territorial integrity of “States. Outside the context of self-determination, normally limited to situations of colonial type or those involving foreign occupation, it does not confer any ‘right to secede’”:
The Scotland Act allocates powers between the United Kingdom and Scotland as part of a constitutional settlement. It establishes a carefully calibrated scheme of devolution powers. Nothing in the allocation of powers, however widely or narrowly interpreted, infringes any principle of self-determination. On the contrary, the legislation establishes and promotes a system of devolution founded on principles of subsidiarity.
Conclusion
What is clear is that the principle or idea of an “indivisible and indissoluble” union, for a colonial construct like Nigeria, infringes the principle of self-determination. This is manifest in the action taken by the Nigerian Government , in September 2017, to list IPOB as a terrorist group by means of ex-parte proceedings.
They will do well to learn some lessons from the history of the Parliament that passed the legislation to set them free on 1st October 1960.
Prime Minister William Gladstone’s speech, in 1886, in the debate on the Irish Home Rule Bill makes interesting reading in relation to the political situation in today’s Nigeria.
He said:
“I wish now to refer to another matter. I hear constantly used the terms Unionists and Separatists. But what I want to know is, who are the Unionists? I want to know who are the Separatists?”
(In Nigeria at the current time, the equivalent labels being used are “One Nigerianists” and “Secessionists”).
“ . . . But we believe as proved by history, that where there are those disturbed relations between countries associated, but not incorporated, the true principle is to make ample provision for local independence, subject to imperial unity. These are propositions of the greatest interest and importance. Gentlemen speak of tightening the ties between England and Ireland as if tightening the tie were always the means to be adopted.
Tightening the tie is frequently the means of making it burst, whilst relaxing the tie is very frequently the way to provide for its durability and to enable it to stand a stronger strain; so it is true . . . that the separation of Legislatures is often the union of countries, and the union of Legislatures is often the severance of countries.”
So the choice that will shape the relationship between Britain and Nigeria after Elizabeth is the one between (1) the union of legislators and the severance of the ethnic groups which were thrown together to make Nigeria or (2) the separation of legislators for the continued union of these groups.
The Orange Union
How can Nigeria move forward to become:
“A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.
Rousseau, the 18th century French Philosopher, defined the challenge as follows:
The problem is to find a form of association which will defend and protect with the whole common force the person and good of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before. This is the fundamental problem of which the Social Contract provides the solution.
We, in the Fatherland Group, have asked for the new arrangement to be imagined as the Orange Union, in contradistinction to the Apple Union. Each segment of the orange uniting itself with all others to make the whole, in an association in which “it may still obey itself alone and remain as free as before”.
Dele Ogun
Convenor of the Fatherland Group
@DeleOgunAuthor