By Prof. Mike Ozekhome, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt

INTRODUCTION

In part 2 of this seminar dissertation, we dealt with the principle and forms of intervention; and the many reasons why Nigeria should not be in a hurry to lead an unholy war to militarily attack the coupist in Niger. In this tranche, we shall highlight more of such reasons, and then take on other critical issues surrounding the Nigerien brouhaha.

MORE REASONS WHY NIGERIA SHOULD NOT LEAD ECOWAS TO ATTACK NIGER REPUBLIC

No Nigerian president can declare a war or deploy the military for an external war without the backing and approval of the Senate. Section 218(1) & (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides:

“(1) The powers of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the armed forces of the Federation”.

(3) The President may, by directions in writing and subject to such conditions as he may think fit, delegate to any member of the armed forces of the Federation his powers relating to the operational use of the armed forces of the Federation”.

In TARABA STATE GOVERNMENT STATE & ANOR. V. SHAKE & ORS (2019) LPELR-48130(CA) (Pp. 101-124 paras. F), the Court of Appeal held thus:

“…The circumstances that may arise which may impel the President of the Federal Republic of Nigeria to “determine the operational use of the Armed Forces of the Federation” under Section 218(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 is never closed but is “subject to such conditions” as the President and Commander-in-chief of the Armed Forces “may think fit…” under Section 218(3) of the Constitution. The President is also empowered to delegate such powers under Section 5(1)(a)-(b) and 215(3) of the Constitution.”  Per TUR, J.C.A.

However, section 5(4) is emphatic that notwithstanding the foregoing provisions of this section-

“(a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly sitting in a joint session; and

(b) except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria.”

Section 5 (5) provides that:

“notwithstanding the provisions of subsection (4) of this section, the President, in consultation with the National Defence Council, may deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger:

Provided that the President shall, within seven days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within fourteen days”.

In the two instances cited above, the Nigerian Senate on 5th August, 2023, roundly rejected Ahmed Bola Tinubu’s moves to lead an invasion against Niger as ECOWAS Chairman, asking him to critically address the political quagmire in Niger Republic following the sack of the democratically elected Government of Mohamed Bazoum. He was urged to explore diplomatic options and other means; but not military action.

Not only this, ECOWAS countries are divided along their national interests as to whether or not to attack Niger. Majority are against it.

These have put paid to the proposed needless aggression against a sovereign state that has offered no provocation.

There are more compelling reasons why Nigeria should never lead an unholy war against a neighbouring country that has not in any way done anything to provoke her. For example, Mali and Burkina Faso have already deployed warplanes to defend a hapless Niger. More significantly, the adage is true that when a millipede crawls out of its hole, you may never tell if it will return as a millipede or as a snake. What will a war with Niger turn out to be? I do not know. Or, do you?

Russia has been angry and smarting from a nearly 2 years war of attrition with Ukraine where she had initially thought it would simply be a walk over. This has not been the case. To flex muscles and show international relevance, she may descend into the theatre of war, using the Wagner Group. Nigeria had also made the same historical mistake in 1967 when she declared war against Biafra, believing erroneously, that it would simply be a “Police action” from the Nsukka axis. It was later to balloon into a 3-year bloody civil war of attrition in which over 3 million Biafrans were killed in cold blood – a near genocide. The truth is that you can only know when a war starts; but never when and how it will end.

Russia’s Wagner Group officially known as PMC Wagner is Russian state-funded private military controlled by Yevgeny Prigozhin, a former close ally of Vladimir Putin, the Russian President. It was reportedly founded by Dimistry Valeryevich Utkin, a veteran of the First and Second Chechen wars; and it was named after his “Wagner” call sign.

The Wagner Group had since operated viciously in many countries across the world, including Russia, Belarus, Ukraine, Syria, Sudan, Mozambique, Central African Republic, Mali, Libya, Sudan and Madagascar (all spamming three continents in Africa, Europe and South America). Is this the group Nigeria, an economically, socially, politically, linguistically, ethnically and religiously weak and polarised country is toying with? Have we all gone crazy?  Can’t we see the looming danger? I can see it. Or, can’t you?

Niger has been our peaceful neighbour with whom we share a very long border of over 1600km for centuries. Indeed, the Islamic leader and founder of the Sokoto Caliphate, Usman Dan Fodio (born on December 15, 1754, at Maratta, Gobir), studied law, theology and philosophy in Agadez (Niger Republic) under Islamic Scholar, Jibril Ibn Umar. As a matter of fact, Niger had fully supported Nigeria during the Biafra civil war between 1967 and 1970. Paying Niger back with a war would appear to be a show of ingratitude.

Nigeria even with her economic woes, still offsets about 70 percent of the budget of ECOWAS. It is inconceivable that the western powers, including the US Congress, will simply roll ou their military drums and approve unlimited arm supplies and funds for the use of ECOWAS, to wage war against another sovereign State.

There are today, hundreds of thousands of Nigerians in various IDP camps in Niger Republic following the severe insurgency and armed banditry in the Northern part of Nigeria. As a matter of fact, Niger has been very helpful in the fight against insurgency and banditry in the lake Chad region.

Nigeria also shares the same socio-economic, cultural, ethnic, linguistic and religious heritage and ties with Niger Republic.

All our seven bordering states of Kebbi, Sokoto, Zamfara, Katsina, Jigawa, Yobe and Borno, will surely incur severe direct hits in the event of a war breaking out.

The River Niger that supports our hydroelectric power (one of our major sources of power generation) passes directly through Niger Republic. This also means that if Niger decides to construct a dam over the River Niger, our dams and source of power will become a mirage as they will dry up automatically. The proposed Nigeria-Algeria gas pipeline which is expected to supply gas to Europe must pass directly through Niger. Therefore, any conflict with Niger will kill that project in its embryonic stage.

Neither Nigeria nor other ECOWAS Countries led any military action to dislodge the military coupists in Chad (1975 and 1990); Mali (2012, 2020 and 2021); Burkina Faso (2022); and Guinea (2021). Why that of Niger Republic now? The world wonders.

How come the American and French military bases located right inside Niger Republic refused or neglected to stop a coup that they obviously saw, and are now encouraging us to go to war with a neighbouring country for?

The Niger military has always been partners and comrades in arms with Nigeria military in the multination joint force in the fight against boko haram, lSWAP, etc. Any conflict between ECOWAS and Niger will surely set friends and comrades against each other.

In any event, although the coup in Niger is sad and deplorable, it remains an internal affair of Niger and her people. Only a negotiated diplomatic settlement in the internal affairs of a sovereign nation such as Niger represents the solution to the crisis. Nigeria cannot be more Catholic than the Pope; nor cry more than the bereaved.

The recent military coup over which Nigeriens poured on the streets with jubilation does not in any way threaten the national security of Nigeria. It is a mere domestic affair.

As a matter of fact, the plotters of the coup said their intervention is to save their country from gradual and imminent extinction, given the presence of foreign troops in their country and the unabated insecurity in their country. There is also the belief that the foreign troops in Niger are there for selfish interests. What, therefore, is the basis for deploying Nigerian troops in Niger to restore a President that has been ousted from power? When Bazoum was elected president in 2021, there was a failed coup attempt about 48 hours before his inauguration. Thus, assuming Bazoum is restored to power, he still has no armed forces that will protect him.

It is only the Security Council of the United Nations can authorize military deployment in any member state. Such deployment, if any, must be done when there is a threat to the peace, breach of the peace, or act of aggression in the Niger Republic. Notwithstanding that the lawfully elected President was ousted by the military junta, there is no threat to the peace, breach of the peace, or act of aggression of such a magnitude that will now necessitate military intervention in Niger.

HISTORICAL CONTEXT: NIGER’S POLITICAL AND ECONOMIC CHALLENGES

Niger Republic, like many countries in West Africa, has experienced a history of political instability, ethnic tensions, and economic challenges. Niger Republic is one of the poorest countries in the world and has been plagued by insecurity. The state had witnessed four military coups since independence from France in 1960. In addition to the security and economic issue stated above, there is debate or uneasiness about the ethnicity and legitimacy of the ousted President, Bazoum, who is from Niger’s ethnic Arab minority. The Arabs are seen as foreigners. Also, Niger’s military was not pleased with the presence of foreign military troops and bases in their country. France’s huge investments in Niger’s mining sector is its interest in the security of Niger. When the French and other European allies withdrew their forces from Mali in 2022, Bazoum invited them to Niger, a move that some influential individuals and the Nigerien military leadership denounced. The current coup plotters in Niger Republic stated that their intervention was necessary to avoid “the gradual and inevitable demise” of their country. In response to the recent coup of 26th July, 2023, ECOWAS is now contemplating a military intervention to restore democratic governance in the country. Lastly, a lot of Nigeriens even welcomed and celebrated the military coup.

Prior to the 26th July, 2023, coup in Niger, there had been similar attacks on democracy in Burkina Faso (2021), Mali (2012, 2020 and 2021), and Guinea (2021). Usurpers in those states also blamed their ruling governments for failing to stem a tide of insecurity that had taken over the Sahel since 2012. In the August 2020 coup in Mali, for instance, the soldiers behind the coup called themselves the “National Committee for the Salvation of the People”. One of them, Ismail Wague, Mali Air Force’s Deputy Chief of Staff, said, “We are not holding on to power but we are holding on to the stability of the country.” (To be continued).

INTRODUCTION

Having discussed the many reasons why Nigeria must tarry about leading any war against Niger in part 3 of this treatise, we shall now discuss the critical issues regarding sovereignty in International Law, the UN and Regional Agencies, Nigerien Sovereignty and the International Laws and Instruments that govern wrongful Intervention.

SOVEREIGNTY UNDER INTERNATIONAL LAW AND THE THREAT OF WAR

Sovereignty is the absolute power of a state to control and manage the affairs within its territory without any form of external control. Implicit in this definition are the concepts of equality of States and the territorial integrity of all States. These concepts are contained in the Charter of the United Nations, 1945.

The preamble to the Charter of the United Nations, 1945, clearly highlights the objectives of the Charter. The first paragraph in the preamble to the Charter started with a reminder of the scourge of war that had twice brought untold hardships to mankind. This was why parties to the Charter agreed to:

• practice tolerance and live together in peace with one another as good neighbours;
• unite their strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest; and
• to employ international machinery for the promotion of the economic and social advancement of all peoples.

Article 1 of the UN Charter reaffirms the purpose of the United Nations, which is to maintain international peace. Article 1(4) thereof states clearly that:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Paragraph 7 states that:

“Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter, but this principle shall not prejudice the application of enforcement measures under Chapter VII”

Chapter VII of the UN Charter provides instances where the UN might intervene in matters which are within the territorial integrity of a State. Such instances which are entrusted to the UN Security Council are with respect to threats to the peace, breaches of the peace, and acts of aggression; all of which are considered as threats to international peace and security. However, under Article 39, it is the UN Security Council (UNSC) that has the sole power to (1) determine the existence of any threat to the peace, breach of the peace, or act of aggression; and (2) make recommendations; or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Such measures include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. Going by the provisions of Chapter VII, the use of force is the last option/measure to be taken or implemented.

Article 51 provides:

“Nothing in the present Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”.

In the First Hague Convention of 1899, the signatory states agreed that at least one other Nation be used to mediate disputes between states before engaging in hostilities.

Title II, Article 2

In case of serious disagreement or conflict, before an appeal to arms, the signatory Powers agreed to have recourse, as far as circumstances allow, to the good office or mediation of one more friendly POWERS

THE 1907 HAGUE CONVENTION

The Hague Convention (III) of 1907 called “Convention Relative to the Opening of Hostilities” gives the international actions countries should perform before hostilities. The first two Articles say:

Article 1 thereof provides that

“the Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war”.

THE UN AND REGIONAL AGENCIES

Members of the United Nations are independent States. Their right to join or establish regional agencies for dealing with such matters relating to the maintenance of international peace is guaranteed under Chapter VIII of the United Nations Charter. This is where ECOWAS comes in. However, under Article 52 (1), such arrangements or agencies and their activities must be consistent with the Purposes and Principles of the United Nations.

Further, Article 52 encourages the UN Members entering into such arrangements or constituting such agencies to make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council. Nothing in the Charter gives them any express or implied authority to use force or invade any country under any guise. This power resides only with the UN Security Council. As a matter of fact, Article 53 thereof provides expressly that:

“The Security Council shall, where appropriate, utilize such regional arrangements or for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council* with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against the renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state. 2. The term enemy state as used in paragraph 1 of this Article applies to any state that during the Second World War has been an enemy of any signatory of the present Charter.

Further, Article 54 provides that:

“The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security”.

It is therefore clear that neither the AU nor the ECOWAS as Regional Agencies can take unilateral military action against the Niger without the UN Security Council.

SOVEREIGNTY OF NIGER REPUBLIC

The sovereignty of a Country is the most essential attribute of that Country in the form of its complete self-sufficiency in the frames of a certain territory. It is its supremacy in the domestic policy and independence in the foreign one. It is the authority of that Country in her decision-making process and in the maintenance of order, outside the intervention of international powers. Niger Republic is a Sovereign State and regional powers such as the AU and ECOWAS are limited in their intervention in the internal matters of a sovereign State like Niger Republic. It must be emphasized that political independence and territorial integrity remain major planks of International Law, International Relations and Diplomacy.

In the case of MARWA & ORS V. NYAKO & ORS (2012) LPELR-7837(SC) (PP. 147-148 PARAS. E), the Supreme Court held on sovereignty thus:

“I would start by saying that there are two forms of government; de facto and de jure. De jure is a government in law; and de facto is a government in fact.  A government recognised as de jure government is the one which ought to possess power of sovereignty although at that time it may be deprived of them, whereas a government recognised as government de facto, but recognised dejure is one which is really in possession of powers of sovereignty although the possession may be wrongful. A de facto government is supreme in all internal matters and its internal acts are internationally valid, it can sue and be sued in courts of recognising states, it is entitled to immunity from judicial process, but in external matters the de jure government is supreme. See the U. S. Supreme Court decisions in Texas v. White 1. 19 law Ed. U. S. 74 – 77 at 2410; Luther v. Sagor (1921) 1 K. B. 456; The Atanizanza Mendi (1939) A. C 236; Banko De Bilbawo v. Sancha (1938) 2 K. B. 176.”  Per MUNTAKA-COOMASSIE, J.S.C.

ECOWAS might argue that it is coming under the standby Force which is an operational multipurpose structure provided for under the Protocol on Mutual Assistance in Defence signed in Freetown on May 29, 1981, (now known as Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, promulgated in 1999). However, we must state categorically that military intervention by ECOWAS does not fall under this purview. The said regional Standby Force’s functions are limited to observation and monitoring; peacekeeping and restoration of peace; humanitarian interventions; enforcement of sanctions-including embargo; preventive deployment; peace building; disarmament and demobilisation; and policing activities- including the control of fraud and organised crime. These do not include intervening in the political and domestic structure or affairs of a member state.

INTERNATIONAL LAWS AND INSTRUMENTS GOVERNING WRONGFUL INTERVENTION

One might wonder where the ECOWAS derives the legitimate authority to breach the territorial integrity of the Nigerien borders, in spite of that of the doctrine of sovereignty which posits that no nation or international organization shall interfere in the domestic affairs of another. In the light of this, Article 2 (4) of the United Nations governing Constitution provides thus:

“The Organization and its Members, in pursuit of the purposes stated in Article 1, shall act in accordance with the following principles. … 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations”.

The action of ECOWAS’ proposed Military intervention in Niger Republic is therefore expressly by the above provisions of the UN’s Constitution.

The current global security order was fashioned out after the gruesome and horrific experience of World War II, when the twin Japanese cities of Hiroshima and Nagasaki were destroyed by the first atomic bomb; and when human misery escalated due to the atrocities visited on mankind by the war. The UN Charter thus vests the UN Security Council (UNSC) with the primary mandate to maintain international peace and security. The Charter prohibits the use of force, or threat of force against the sovereignty and territorial integrity of any state. Under Article 53 (1) of the UN Charter, only the UNSC can authorise the use of force for collective security where it has been determined that there is a threat, or breach of peace, or an act of aggression anywhere in the world, including amongst regional bodies and agencies. This is not the case here. (To be continued).

By Prof. Mike Ozekhome, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt

INTRODUCTION

In part 2 of this seminar dissertation, we dealt with the principle and forms of intervention; and the many reasons why Nigeria should not be in a hurry to lead an unholy war to militarily attack the coupist in Niger. In this tranche, we shall highlight more of such reasons, and then take on other critical issues surrounding the Nigerien brouhaha.

MORE REASONS WHY NIGERIA SHOULD NOT LEAD ECOWAS TO ATTACK NIGER REPUBLIC

No Nigerian president can declare a war or deploy the military for an external war without the backing and approval of the Senate. Section 218(1) & (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides:

“(1) The powers of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the armed forces of the Federation”.

(3) The President may, by directions in writing and subject to such conditions as he may think fit, delegate to any member of the armed forces of the Federation his powers relating to the operational use of the armed forces of the Federation”.

In TARABA STATE GOVERNMENT STATE & ANOR. V. SHAKE & ORS (2019) LPELR-48130(CA) (Pp. 101-124 paras. F), the Court of Appeal held thus:

“…The circumstances that may arise which may impel the President of the Federal Republic of Nigeria to “determine the operational use of the Armed Forces of the Federation” under Section 218(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 is never closed but is “subject to such conditions” as the President and Commander-in-chief of the Armed Forces “may think fit…” under Section 218(3) of the Constitution. The President is also empowered to delegate such powers under Section 5(1)(a)-(b) and 215(3) of the Constitution.”  Per TUR, J.C.A.

However, section 5(4) is emphatic that notwithstanding the foregoing provisions of this section-

“(a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly sitting in a joint session; and

(b) except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria.”

Section 5 (5) provides that:

“notwithstanding the provisions of subsection (4) of this section, the President, in consultation with the National Defence Council, may deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger:

Provided that the President shall, within seven days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within fourteen days”.

In the two instances cited above, the Nigerian Senate on 5th August, 2023, roundly rejected Ahmed Bola Tinubu’s moves to lead an invasion against Niger as ECOWAS Chairman, asking him to critically address the political quagmire in Niger Republic following the sack of the democratically elected Government of Mohamed Bazoum. He was urged to explore diplomatic options and other means; but not military action.

Not only this, ECOWAS countries are divided along their national interests as to whether or not to attack Niger. Majority are against it.

These have put paid to the proposed needless aggression against a sovereign state that has offered no provocation.

There are more compelling reasons why Nigeria should never lead an unholy war against a neighbouring country that has not in any way done anything to provoke her. For example, Mali and Burkina Faso have already deployed warplanes to defend a hapless Niger. More significantly, the adage is true that when a millipede crawls out of its hole, you may never tell if it will return as a millipede or as a snake. What will a war with Niger turn out to be? I do not know. Or, do you?

Russia has been angry and smarting from a nearly 2 years war of attrition with Ukraine where she had initially thought it would simply be a walk over. This has not been the case. To flex muscles and show international relevance, she may descend into the theatre of war, using the Wagner Group. Nigeria had also made the same historical mistake in 1967 when she declared war against Biafra, believing erroneously, that it would simply be a “Police action” from the Nsukka axis. It was later to balloon into a 3-year bloody civil war of attrition in which over 3 million Biafrans were killed in cold blood – a near genocide. The truth is that you can only know when a war starts; but never when and how it will end.

Russia’s Wagner Group officially known as PMC Wagner is Russian state-funded private military controlled by Yevgeny Prigozhin, a former close ally of Vladimir Putin, the Russian President. It was reportedly founded by Dimistry Valeryevich Utkin, a veteran of the First and Second Chechen wars; and it was named after his “Wagner” call sign.

The Wagner Group had since operated viciously in many countries across the world, including Russia, Belarus, Ukraine, Syria, Sudan, Mozambique, Central African Republic, Mali, Libya, Sudan and Madagascar (all spamming three continents in Africa, Europe and South America). Is this the group Nigeria, an economically, socially, politically, linguistically, ethnically and religiously weak and polarised country is toying with? Have we all gone crazy?  Can’t we see the looming danger? I can see it. Or, can’t you?

Niger has been our peaceful neighbour with whom we share a very long border of over 1600km for centuries. Indeed, the Islamic leader and founder of the Sokoto Caliphate, Usman Dan Fodio (born on December 15, 1754, at Maratta, Gobir), studied law, theology and philosophy in Agadez (Niger Republic) under Islamic Scholar, Jibril Ibn Umar. As a matter of fact, Niger had fully supported Nigeria during the Biafra civil war between 1967 and 1970. Paying Niger back with a war would appear to be a show of ingratitude.

Nigeria even with her economic woes, still offsets about 70 percent of the budget of ECOWAS. It is inconceivable that the western powers, including the US Congress, will simply roll ou their military drums and approve unlimited arm supplies and funds for the use of ECOWAS, to wage war against another sovereign State.

There are today, hundreds of thousands of Nigerians in various IDP camps in Niger Republic following the severe insurgency and armed banditry in the Northern part of Nigeria. As a matter of fact, Niger has been very helpful in the fight against insurgency and banditry in the lake Chad region.

Nigeria also shares the same socio-economic, cultural, ethnic, linguistic and religious heritage and ties with Niger Republic.

All our seven bordering states of Kebbi, Sokoto, Zamfara, Katsina, Jigawa, Yobe and Borno, will surely incur severe direct hits in the event of a war breaking out.

The River Niger that supports our hydroelectric power (one of our major sources of power generation) passes directly through Niger Republic. This also means that if Niger decides to construct a dam over the River Niger, our dams and source of power will become a mirage as they will dry up automatically. The proposed Nigeria-Algeria gas pipeline which is expected to supply gas to Europe must pass directly through Niger. Therefore, any conflict with Niger will kill that project in its embryonic stage.

Neither Nigeria nor other ECOWAS Countries led any military action to dislodge the military coupists in Chad (1975 and 1990); Mali (2012, 2020 and 2021); Burkina Faso (2022); and Guinea (2021). Why that of Niger Republic now? The world wonders.

How come the American and French military bases located right inside Niger Republic refused or neglected to stop a coup that they obviously saw, and are now encouraging us to go to war with a neighbouring country for?

The Niger military has always been partners and comrades in arms with Nigeria military in the multination joint force in the fight against boko haram, lSWAP, etc. Any conflict between ECOWAS and Niger will surely set friends and comrades against each other.

In any event, although the coup in Niger is sad and deplorable, it remains an internal affair of Niger and her people. Only a negotiated diplomatic settlement in the internal affairs of a sovereign nation such as Niger represents the solution to the crisis. Nigeria cannot be more Catholic than the Pope; nor cry more than the bereaved.

The recent military coup over which Nigeriens poured on the streets with jubilation does not in any way threaten the national security of Nigeria. It is a mere domestic affair.

As a matter of fact, the plotters of the coup said their intervention is to save their country from gradual and imminent extinction, given the presence of foreign troops in their country and the unabated insecurity in their country. There is also the belief that the foreign troops in Niger are there for selfish interests. What, therefore, is the basis for deploying Nigerian troops in Niger to restore a President that has been ousted from power? When Bazoum was elected president in 2021, there was a failed coup attempt about 48 hours before his inauguration. Thus, assuming Bazoum is restored to power, he still has no armed forces that will protect him.

It is only the Security Council of the United Nations can authorize military deployment in any member state. Such deployment, if any, must be done when there is a threat to the peace, breach of the peace, or act of aggression in the Niger Republic. Notwithstanding that the lawfully elected President was ousted by the military junta, there is no threat to the peace, breach of the peace, or act of aggression of such a magnitude that will now necessitate military intervention in Niger.

HISTORICAL CONTEXT: NIGER’S POLITICAL AND ECONOMIC CHALLENGES

Niger Republic, like many countries in West Africa, has experienced a history of political instability, ethnic tensions, and economic challenges. Niger Republic is one of the poorest countries in the world and has been plagued by insecurity. The state had witnessed four military coups since independence from France in 1960. In addition to the security and economic issue stated above, there is debate or uneasiness about the ethnicity and legitimacy of the ousted President, Bazoum, who is from Niger’s ethnic Arab minority. The Arabs are seen as foreigners. Also, Niger’s military was not pleased with the presence of foreign military troops and bases in their country. France’s huge investments in Niger’s mining sector is its interest in the security of Niger. When the French and other European allies withdrew their forces from Mali in 2022, Bazoum invited them to Niger, a move that some influential individuals and the Nigerien military leadership denounced. The current coup plotters in Niger Republic stated that their intervention was necessary to avoid “the gradual and inevitable demise” of their country. In response to the recent coup of 26th July, 2023, ECOWAS is now contemplating a military intervention to restore democratic governance in the country. Lastly, a lot of Nigeriens even welcomed and celebrated the military coup.

Prior to the 26th July, 2023, coup in Niger, there had been similar attacks on democracy in Burkina Faso (2021), Mali (2012, 2020 and 2021), and Guinea (2021). Usurpers in those states also blamed their ruling governments for failing to stem a tide of insecurity that had taken over the Sahel since 2012. In the August 2020 coup in Mali, for instance, the soldiers behind the coup called themselves the “National Committee for the Salvation of the People”. One of them, Ismail Wague, Mali Air Force’s Deputy Chief of Staff, said, “We are not holding on to power but we are holding on to the stability of the country.” (To be continued).

By Prof. Mike Ozekhome, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt

INTRODUCTION

we have in part 1 of this thesis, used the allegory of a man with a hunch to liken Nigeria’s needless push for ECOWAS intervention in the Nigerien coup militarily. We brought out historical perspectives to show why Nigeria is not a high moral ground to do so. The questions of self-determination and powers of the ECOWAS to militarily intervene in the internal affairs of member states were discussed. Let us now take our inquiry further.

MEANING OF INTERVENTION

In international law, the concept of “intervention” is tied to the notion of “interference”. It refers to when a State intervenes in the internal affairs of another State in violation of the latter’s sovereignty.

Such intervention is prohibited by the UN Charter under the principle of non-intervention, or non-interference, which posits that States should not “intervene in matters to preserve the independence of weaker states against the interventions and pressures of more powerful ones.” This concept is presented as the basis for international relations and therefore applies to interstate relations; but not to relief activities carried out by impartial humanitarian organizations.

A military intervention can open up new vistas for the reorganization of a political system. Military intervention by outside forces into the affairs of sovereign states is strictly limited in international law and diplomacy. The UN through its Security Council, has since the end of the Cold War begun to increasingly classify gross human rights violations in intrastate and sub-state armed conflicts as a threat to world peace and international security. It has thus mandated humanitarian interventions on the basis of a so-called responsibility to protect (R2P). Such peace-enforcement missions can easily trigger a regime change. Nowadays, these include substantial state-building efforts under external oversight; but rarely if ever, lead to successful democratization of a country.

FORMS OF INTERVENTION

In international relations, intervention is defined as using force to interfere in another Nation’s affairs in a way that affects that Nation’s control over its territory or population. Intervention can take on many forms, depending on the conflict or issue that occurs.

While military force is the most well-known and historically used form of intervention, there are several different ways that forcible intervention may be used. In fact, one of the most compelling is Economic intervention – which delays mostly with sanctions. There is also political interference.

TREATY-BASED CONSENT TO INTERVENTION

Russel Buchan and Nicholas Tsagourias (both Senior Lecturer and Professor respectively, of the University of Sheffield, wrote extensively on the issue of “Treaty-based consent”, regarding the powers of the AU and the ECOWAS to intervene militarily in the affairs of member states. In an article titled, “The Niger Coup and the Prospects of ECOWAS Military Intervention: An International Law Appraisal”, they wrote (and permit me to copiously quote) as follows:

“Since Niger is a member of ECOWAS and the African Union (AU), we first consider whether their constitutive treaties and related legal instruments empower them to intervene militarily within their member States. If this is the case, Niger would be deemed to have granted its consent to intervention by signing and ratifying the respective treaties or instruments.

“With regard to ECOWAS, the constitutive treaty signed in 1975 and revised in 1991 does not provide for such a right. In 1978, a Protocol on Non-Aggression was signed according to which ECOWAS member States vow not to use force or aggression against other member States. The 1981 Protocol Relating to the Mutual Assistance on Defence provides for collective self-defence in cases of armed threat or aggression directed against any ECOWAS member State (arts. 2 and 3). The 1999 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security establishes a collective security system. It lays down the guiding principles of the mechanism (arts. 2 and 3) and lists the circumstances which set it in motion among which is the overthrow or attempted overthrow of a democratically elected government (art. 25).

“Among the organs established to implement ECOWAS’s peace and security mandate are the nine-member Mediation and Security Council and ECOMOG (ECOWAS’s Cease-Fire Monitoring Group). The Mediation and Security Council can make decisions by a two-thirds majority on all matters relating to peace and security including the authorization of all forms of intervention and the deployment of political and military missions (art. 10). ECOMOG consists of civilian and military standby forces charged, among others, with the following missions: peacekeeping and restoration of peace; humanitarian intervention in support of humanitarian disaster; enforcement of sanctions; peacebuilding, disarmament, and demobilization; policing activities; and any other operations as may be mandated by the Mediation and Security Council (art. 22).

“It follows that ECOWAS has the power to intervene militarily in a member State where a democratically elected government is overthrown. Niger has signed and ratified the above instruments and therefore has consented to such intervention. Consequently, ECOWAS’s threat to use force is lawful because it is based on a treaty right.

“Any decision to actually use force should be taken by the Mediation and Security Council with the requisite majority. However, as noted earlier, there is opposition to such a course of action. If ECOWAS or certain member States acting on its behalf were to use force to restore the previous government in contravention of the voting requirements, the action would be unlawful. The stalemate could be overcome by seeking SC authorization under Article 53(1) of the UN Charter. If the SC authorized ECOWAS or any of its member States to use force to restore the deposed government, the action would be lawful.

“This raises the question of the relationship between ECOWAS and the SC. Article 52 of the 1999 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security does not impose an obligation on ECOWAS to obtain SC authorization but only to inform the UN of any military intervention undertaken in accordance with the Protocol. The reason that such interventions are lawful is because member States have given their prior consent. However, if ECOWAS is unable to make such a decision due to disagreement among its member States, it can appeal to the SC. Moreover, SC authorization will bring into play Article 103 of the UN Charter according to which UN obligations prevail over all others.

“Regarding the AU, revised Article 4(h) of the AU’s Constitutive Act provides for the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity as well as a serious threat to legitimate order to restore peace and stability to the Member State of the Union upon the recommendation of the Peace and Security Council.

“Article 4(h) plays a dual role: it empowers the AU to intervene militarily within member States in cases where the internal legitimate order is threatened; and is also an expression of the consent of AU member States to intervention by the AU. Consequently, AU interventions do not require prior SC authorization but are lawful on the basis of treaty-based consent.

“There are however a number of issues that require further explanation. First, Article 4(h) justifies military intervention to protect the legitimate order against threats. The legitimate order may refer to the constitutional government regardless of whether it is democratic according to western liberal notions of democracy or the government that is in power, as the AU’s reluctance to act against the Gaddafi regime demonstrates. However, it is interpreted, it covers the case of Niger. Second, there is the question of whether Niger’s consent to intervention by becoming a member of the AU is perpetual or should be granted de novo. In our opinion, such consent granted in a constitutional treaty is perpetual until Niger withdraws from the AU. Third, there is the question of the relationship between ECOWAS and the AU regarding military intervention.

“ECOWAS, other African sub-regional organizations, and the AU form the African Peace and Security Architecture (APSA). The relations between sub-regional organizations and the AU are characterized by the principle of subsidiarity and the principle of primacy of the AU and its institutions. The AU’s primacy is recognized in Article 16 of the Protocol Establishing the Peace and Security Council and the Memorandum of Understanding with regional communities. With regard to the AU, decisions to intervene are taken by the AU’s Peace and Security Council (PSC) on the basis of consensus or in the absence of consensus by a two-thirds majority (art. 8(13)). Under the Protocol Establishing the Peace and Security Council of the AU, the intervention is performed by the African Standby Force (ASF), which consists of contingents from AU regional economic communities including ECOWAS (arts. 4, 6, 7, and 13).

“This means that ECOWAS can appeal to the AU but the AU can also be seized of the matter of its own accord. The AU can authorize any member State or coalitions of States to use force to restore democracy. It can also authorize ECOWAS or ECOWAS member States to do so. These options are quite remote due to a reported lack of consensus within the AU on military action. If consensus is somehow achieved and the AU decides to intervene militarily by deploying the ASF, one issue that may arise is whether States opposed to the use of force should consent to their troops participating in the operation”.

What is clear from this seminar dissertation by the learned scholars is that both the ECOWAS and AU Member States must be consensually ad idem for such military deployment to take place. In the case of AU’s PSC, where there is failure to obtain a consensus (Art 16), at least two-third majority of members states must agree to such intervention (Art 8.13). For ECOWAS, under Art 10 of the 1981 Protocol, two-third majority must agree. This scenario is all lacking in the Nigerien power play. Many ECOWAS and AU member states are stringently against such military action. So, such a plan has collapsed like a pack of cards.

MANY REASONS NIGERIA, A HUNCHED BACK CRIPPLE SHOULD NEVER TRY TO LEAD A WAR OF ATTRITION

Nigeria is one of the most porous and territorially vulnerable countries in the world. With Niger Republic alone, seven of Nigeria’s states share common boundaries, to wit, Sokoto, Kebbi, Katsina, Zamfara, Jigawa, Yobe and Borno. The saying is apt that he who brings an ant-infested piece of firewood into his house should not complain when he is obliged a visitation by a colony of feasting lizards. A war in Niger would simply open up our already gaping borders and lead to an ungovernable influx of refugees. Nigeria, a country already bloated and asphyxiating by an uncontrollable population of 224.4 million people as at 1st July, 2023 (by UN data projection), should not try out such a toxic experiment.

To invade Niger using ECOWAS as a façade and veneer will simply approximate to a declaration of war between Nigeria and Niger, a country whose proximity to Nigeria through seven states will surely be on the precipice. (To be continued).

By Prof. Mike Ozekhome, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt

INTRODUCTION

Once upon a time, a cripple with a hunchback boasted about leading his people to war. He was warned to keep off because of his visible infirmity. He was asked how he would escape when the war broke out. He said it did not matter. He believed that since he was the king of his village and the neighbouring communities, he had the talisman to succeed. He underplayed his enormous physical challenges. That is Nigeria for you as an epigram.

The crippled hunchback or the hunch-backed cripple never reckoned with the wise words of Alexander the Great who once intoned, “I am not afraid of an army of lions led by a sheep; I am afraid of an army of sheep led by a lion”.

Allegorically and metaphorically, Nigeria is the sheep attempting to lead the ECOWAS Communities which constitute the army of lions to an unholy war against Niger Republic. This poor country has done nothing wrong to Nigeria, or other ECOWAS States, but merely exercising her sovereignty within her territorial domain as she sees and deems fit. When did Nigeria become the regional Headmaster that whips other erring pupil countries to line?

What is Nigeria’s business with Niger, a sovereign country, when she is disfigured and limping, with her citizens scavenging for food from trash dumps? When did Nigeria become an adventurous knight Errant in shining armour, deodorizing the Augean stables of neighbouring countries? Where her citizens are daily being kidnapped and mauled down in cold blood in their homes, farms, markets, schools and workplaces by hunger, squalor, kidnappers, armed bandits, armed robbers and divisiveness, what is Nigeria’s locus standi? How does Nigeria seek to remove the speck in another country’s eye, when a log is deeply buried in her own eye? I do not know. Or, do you?

HISTORICAL PERSPECTIVES: WHY NIGERIA IS ERRING

No country ever intervened in Nigeria’s internal affairs throughout her locust years of misgovernance and successive military putsches. We had coups on 15^th January, 1966 (the Majors coup led by Major Chukwuma Kaduna Nzeogwu and Others). We were never harassed when on 28^th July, 1966, Military Officers in Nigeria carried outthe counter coup known as the “July Rematch”, which wasmasterminded by Lt. Col. Murtala Mohammed and many Northern military officers such as Theophilus Danjuma, Joseph Akaha, Martin Adamu and others).  No country ever poke-nosed into our internal affairs when Nigeria was governed by a young military bachelor, 32 years old Yakubu Jack Gowon, who ruled Nigeria by military diktat for over 8 years (1967-1975). Nigeria was not invaded by ECOWAS or AU (then called OAU) when Col. Joseph Nanven Garba (a close associate of Gowon) announced on Federal Radio, the overthrow of Gowon who was actually attending the OAU Conference in Kampala, Uganda, and replacement with Murtala Mohammed, on 30^th July, 1975.  I did not hear about any revolt in neighbouring countries when Murtala Mohammed was assassinated during the Col. Buka Suka Dimka – led failed coup on 13^th February, 1976; and Olusegun Obasanjo replaced him and ruled Nigeria for over 3 years between 1976 and 1979.

I cannot remember ECOWAS or OAU having an emergency meeting to plan on how to invade Nigeria when lanky Muhammadu Buhari overthrew the democratically elected government of Alhaji Aliyu Shehu Usman Shagari, a former school headmaster, who was once described by an avid political commentator as having a cap longer than his achievements.

No country sought to teach Nigeria democracy when on 27th August, 1985, gap-toothed Ibrahim Babangida (“the evil genius”) led other military officers to overthrow the then excessively iron-handed and inhuman military dictator and recently ethnic warlord, Muhammadu Buhari.

When on 22^nd April, 1990, Major Gideon Gwaza Orkar failed in a bloody coup against maradonic Babangida and the coupist were promptly dislodged, arrested, “tried” and executed, I never heard any other county meddle into our internal affairs.

On 17^th November, 1993, when dark-googled, dwarfish, taciturn, but intelligent Sani Abacha shoved aside the interim government of business mogul and former UAC Chairman, Chief Ernest Shonekan, in a bloodless palace coup, I did not see any external intervention. I and others were led by Chief Gani Fawehinmi, SAN, SAM, who went to court on 10^th November, 1993, got the lame duck, fumbling, dawdling, groggy and crumbling “interim nonsense” declared illegal and unconstitutional by the courageous Justice Dolapo Akinsanya (of blessed memory; may her good soul rest in peace).

Even with Nigeria’s ever increasing challenges likened to Mounts Everest and Kilimanjaro, including those of  the “doctrine of necessity”, endemic corruption, parlous economy and recession; armed banditry; Boko haram; kidnappings; hunger, thirst, sorrow, tears, blood, melancholy, abject penury, maladministration and crass misgovernance, that have turned Nigeria virtually into a gruesome crime scene, no external country (not even powerful America and other western countries like China, Russia, EU, etc) have ever dared to invade us, or come to teach us how to run our tattered and battered country. So, what gives this government that is still struggling like a straight snake battling to wear beads on a non-existent waist the temerity and audacity to think it can lead ECOWAS to invade Niger and teach her leaders and people how to govern themselves, and run their affairs? I do not know. Or, do you?

THE NIGERIEN COUP AND THE RIGHT TO SELF-DETERMINATION

On the fateful day of 26^th July, 2023, Niger, a poor West African nation known for its political instability, was once again thrust into turmoil as a coup d’état unfolded, shaking the very foundations of its young democracy. In a swift and audacious move, the country’s presidential guard detained President Mohamed Bazoum, igniting a chain of events that would redefine the nation’s political landscape. The coup leader, General Abdourahamane Tchiani, promptly declared himself the head of a new military junta, casting a shadow of uncertainty over Niger’s future. This marked the fifth time since its independence from France in 1960 that the nation had experienced a military coup, marking a disturbing trend that raised questions about the stability of democratic institutions in the region.

Presidential guard forces swiftly enacted measures that further consolidated their hold on power, including border closures, suspension of state institutions, and imposition of a curfew. The international community, including the West African regional bloc ECOWAS, quickly responded with condemnation. It denounced the coup as a grave violation of democratic principles and threatening military intervention. In order to tighten the noose on General Tchiani to release power, Nigeria promptly cut off her 150 megawatts of daily supply of electricity to Niger Republic. The Jibia-Magama border with Kastina State in Nigeria was promptly blockaded, thus crippling major socio-economic activities in Kastina State. There has been closure of land and air borders and suspension of all commercial and financial transactions between ECOWAS Member states and Niger, etc.

Both Burkina Faso and Mali have already made good their threat of solidarity with Niger by sending in their warplanes. ECOWAS has since suspended the three countries from its fold.

The leader of the military junta that seized power in the Niger Republic, Gen. Abdourahamane Tchiani, said last week that his country is not hungry for war, but will be ready to defend itself of necessary. Yes, he can say this legitimately because both defacto and dejure, he is the Head of State of his country, having seized the reins of power from a fumbling President, Mohamed Bazoum. Said he through Aljazeera:

“Neither the Army nor the people of Niger want war, but we will resist any manifestation of it”.

Tchiani noted that Member states of the ECOWAS do not unfortunately realise that Niger has become the key to containing the region from destabilization against the backdrop of increased terrorist activities.

Tchiani argued that sanctions imposed by the ECOWAS against his country were aimed at merely putting pressure o the rebels and not designed to finding a solution to the current impasse.

Tchiani also said that the rebels were not seeking to seize power in the country for the sake of it, rather, to find a solution that would meet the Nigerien people’s interests.

Some political pundits joked that this aggression and unusual passion and éclat with which Nigeria is leading the battle could be Tinubu’s way of getting back at Buhari who had said severally whilst in power, that he would gladly relocate to join his kins and kiths in Niger Republic if Nigerians worry or harass him after leaving office. Could this be the case? I do not know. Or, do you?

As tensions escalated, the stage has become set for what many have now dubbed the “2023 Nigerien crisis”.

ECOWAS AND ITS POWERS OF INTERVENTION

The Economic Community of West Africa States (ECOWAS), which decided to invade Niger to restore “democracy”, was established by the Treaty of Lagos on 28th May, 1975, when Yakubu Gowon was military Head of State. It was actually Gowon and Gnassigbe Eyadema of Togo that spear-headed its formation.

Principally, ECOWAS was established with the aims and objectives of promoting economic cooperation and integration. It aims to establish an economic union in West Africa in order to raise the living standards of its peoples, and to maintain and enhance economic stability, foster relations among member states, and contribute to the progress and development of the African continent.

The ECOWAS is made up of 15 members, vis, Benin, Burkina Faso, Cape Verde, cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo. ECOWAS Region spans an area of 5.2 million square kilometres, with a combined population of 424.34 million people, which is 3.4 percent of the habitable area around the entire world and 5.3 percent of world population.

At the regional arena, Article 4 of the ECOWAS Revised Treaty (2010), listed the independence of member states as the first Fundamental Principle in the following words:

“THE HIGH CONTRACTING PARTIES, in pursuit of the objectives stated in Article 3 of this Treaty, solemnly affirm and declare their adherence to the following principles: a) equality and inter-dependence of Member States”.

At the international arena, Article 2(4) of the United Nations Charter (UN Charter) provides for the prohibition of threat or use of force in international relations thus:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.

In all these objectives, nowhere was ECOWAS specifically permitted to declare war on another member state. It is true that when the December, 2016 presidential elections the tiny state of Gambia (population of only 12,777,168 people) were disputed, ECOWAS had managed to “restore democracy” by using the threat of military force; but without actually using direct physical violence. Amongst others, Gambia’s small size; the fact that it is land locked, surrounded by Senegal; and its lack of a strong military base to withstand the firepower of possible ECOWAS attack, had led to the coupists pre-emptively backing down without a single shot by the ECOWAS group. It is also true that both the UN Security Council had backed ECOWAS with some form of legitimacy for that intervention. This is unlike the present scenario in Niger Republic (with 27.202 million people), where world bodies and Nations outside ECOWAS have carefully distanced themselves); or at best, maintained some level of caution and neutrality. (To be continued).