Customary government is lawful in Nigeria – IPOB Solicitor
As the Solicitors for Indigenous People of Biafra, we owe it as a duty to educate both the government officials and the general public on the rules of law in the Nigerian Legal System and the legality of the customary government of our clients.
UNDERSTANDING THE CONCEPT OF CUSTOMARY GOVERNMENT AND SHARIA GOVERNMENT UNDER THE NIGERIAN LEGAL SYSTEM:
1. Following the news about the Customary Government of Indigenous People of Biafra headed by the Supreme Council of Elders, many people have started asking questions regarding the legality of a customary government. Some critics have asked whether it was lawful to have a government withi
n a government. To these critics, there can be no other type of government within the government of the Federal Republic of Nigeria. As the Solicitors for Indigenous People of Biafra, we owe it as a duty to educate both the government officials and the general public on the rules of law in the Nigerian Legal System and the legality of the customary government of our clients. This has become expedient especially as most of the law enforcement officers in Nigeria including the police, army and paramilitary officers are not trained as lawyers and may be overzealous without knowledge. It is an undisputable fact that zeal without knowledge is dangerous. The fear of the offence of treason and treasonable felony has caused many people to be ignorant of their rights and unwilling to exercise their rights and fre
edoms under the Nigerian Legal System.
In Igbo Language, Customary Government is called “Ochichi Amaala”. It is governance of the indigenous people of the land by their council of elders. The Policy Statement and Orders of the Supreme Council of Elders, Vol. 1, 2014, Section 4, made a detailed exposition of a customary government. Let me reproduce the section of the Policy Statement here:
“4. UNDERSTANDING THE LEGITIMACY OF THE CUSTOMARY LAW GOVERNMENT OF INDIGENOUS PEOPLE OF BIAFRA HEADED BY THE SUPREME COUNCIL OF ELDERS:
4.1. Many people have wondered whether the Supreme Council of Elders of Indigenous People of Biafra otherwise called the SCE is a legitimate government under the law with power to govern the remnants of the Biafrans and their descendants who were not consumed in the war between Nigeria and Biafra in 1967–1970. The question of the legitimacy of the Government of Indigenous People of Biafra headed by the Supreme Council of Elders arises because many people lack adequate knowledge of the Nigerian Legal System. Fortunately, the Chairman of the Supreme Council of Elders of Indigenous People of Biafra is a retired Chief Judge and Head of the Judiciary as well as a Royal Father and Custodian of the Native Laws and Customs of the land. The Legal Adviser and Solicitor for Indigenous People of Biafra is a practising Barrister & Solicitor of the Supreme Court of Nigeria as well as the Solicitor and Advocate of the Senior Courts of England & Wales. The Supreme Council of Elders also has legal luminaries as members. Both the Legal Adviser and the Chairman of the SCE are competent authorities in national, international and customary laws relating to Nigeria.
4.2. We now state the Nigerian law as it is. There are four pillars of the Nigerian Legal System known in the academic circles as the Four Sources of the Nigerian Law. These four pillars or sources of the Nigerian Law are as follows:
(1) Customary Law/Sharia Law;
(2) The Received English Law;
(3) Statute Law; and
(4) Case Law.
4.3. For any institution, act, body or organization to be lawful in Nigeria, it must be based on any one or more of the four pillars of the Nigerian Legal System. We have listed the four sources of the Nigerian law in a descending order of importance with Customary Law and Sharia Law taking the pre-eminent position to show that they preceded the other body of laws. Customary Law and Sharia Law are equal in the hierarchy of laws but Customary Law is unwritten while Sharia Law is a written religious code. Each of the pillars of the Nigerian Legal System has its own special characteristics and rules by which it is tested for acceptability as good law but this subject is beyond the scope of these Policy Statements. We have noted that most Nigerians are ignorant of the foundation of Nigeria as a country and the jurisprudence of the Nigerian laws (the philosophy and reason behind the laws). Some people have wondered whether the Supreme Council of Elders (SCE) is legal or illegal and whether we have committed the offence of treason by establishing the Customary Law Government of Indigenous People of Biafra. This is a very serious issue that must be clarified now. In order to educate and enlighten the whole world on the rule of law under the Nigerian Legal System, and knowing that lack of knowledge leads to fear and enslavement, we now direct that these Policy Statements and Orders should be published to the whole world for the benefit of all Indigenous People of Biafra scattered in all parts of the world.
4.4. Sections 37, 38 and 41 of the Criminal Code, Laws of the Federation of Nigeria, define Treason and Treasonable Felonies. Any person who levies war against the Nigerian Government or the Government of a Region with the intention to intimidate, overthrow or overawe the President or Governor, or conspires with any person either within or without Nigeria to levy war against Nigeria or against a Region, or instigates a foreigner to invade Nigeria or a Region with an armed force is guilty of treason and is liable to the punishment of death upon conviction. The Regions are now called States under the new Constitution. On the other hand, any person who forms an intention to overthrow the President or Governor, or to levy war against Nigeria or against the State, or to instigate a foreigner to make an armed invasion against Nigeria or the States, and manifests such an intention by an overt act is guilty of a treasonable felony and is liable to life imprisonment on conviction.
4.5. From these definitions of treason and treasonable felonies, the actual act of levying war against the Nigerian Government or the State or conspiracy to levy war or the act of instigating a foreigner to invade Nigeria with an armed force, amounts to treason while the mere intention to commit treason is treasonable felony when the accused has manifested such an intention by an overt act. The Supreme Council of Elders of Indigenous People of Biafra has not levied any war against the Nigerian Government or any State in Nigeria and has no intention to overthrow the President or Governor with an armed force or to instigate any person to invade Nigeria or any State with an armed force.
4.6. We have noted that most Nigerians are ignorant of the foundation of Nigeria as a country and why the Nigerian Constitution makes provisions for the practice of both Customary Law and Sharia Law and has actually established Customary Courts and Sharia Courts. Before we commenced the action between Biafra and Nigeria in the Federal High Court Owerri, our lawyers carried out extensive legal researches in England and obtained all the necessary documentary evidence from the British Authorities. These documents are now before the Federal High Court Owerri. We cannot talk about the merits of the case to avoid violating the Rule of Sub Judice but we can talk about the contents of the documents because they are public documents which any person can obtain from the British Library or British National Archives. These documents were obtained by our lawyers and made public by virtue of the ongoing case between Biafra and Nigeria in the Federal High Court Owerri.
4.7. We shall now disclose the reason for the preservation and protection of the Customary Law and Sharia Law by the Nigerian Constitution. We are aware that this information is not contained in the Jurisprudence of the Nigerian Legal System which our students are taught in the Nigerian Universities and Nigerian Law Schools. The Customary Law and Sharia Law are accepted as existing laws which were in force immediately before the Nigerian Constitution. Section 315 of the Constitution of the Federal Republic of Nigeria preserves and protects all the existing laws of the indigenous peoples of the land which were in force before Nigeria was created. This is why the Constitution recognizes both Customary Law and Sharia Law applicable to the South and the North respectively. But why did the Nigerian Constitution make such a provision for the native laws of the indigenous peoples of the land to remain effective? The answer is seen from the Treaties signed between the British Government and our ancestors from 1882 – 1889 which we have filed in the Federal High Court Owerri.
4.8. The Treaties signed between our ancestors and the British Government 1882 – 1889 clearly preserved the practice of our Customary Law Government. There was no country called Nigeria at that time and no idea that a new country would be created in West Africa by the British people. The Treaties stipulated that the British people should not interfere with the customary law government of our country then in existence when the British came to West Africa. A typical provision at Page 24 of the Treaty Documents placed an obligation on the British Government in the following words: “To respect all native laws and customs of the country, and not to interfere with the existing rights of any of the natives without first obtaining their consent”. This provision was made because the British people came for trade under the name of the Royal Niger Company Ltd and our ancestors granted them license to trade in our land but not to interfere with the government of our country then in existence. There was a country called Biafra shown in the Ancient Map of Africa 1492 - 1843. The Biafrans are some of the indigenous peoples of the lands where Nigeria exists today. This is why the Nigerian Constitution has always incorporated all the native laws and customs of the indigenous peoples of the land under Customary Law and Sharia Law as part of the Nigerian Legal System. But the fundamental problem is that the British people went beyond the agreement and created a new country in 1914 called “Nigeria” without the consent of the indigenous peoples of the lands. Unfortunately, only very few people in Nigeria have this knowledge. It appears that the Northerners are wiser in using the Sharia Law to govern themselves as a people within Nigeria, although we condemn the fanatical attitude of some Moslems who seek to force their religion on everybody.
4.9. It is seen as an unfortunate phenomenon that in the practice of the Received English Law, many Nigerians forgot their customary and sharia laws by which they had been governed before the coming of the British. The Northerners realized the mistake in time and sought to revive their Sharia Government. Most of the States in Northern Nigeria have elevated the Sharia Law to Statute Law by passing the Bills in their States’ Houses of Assembly to become State Laws despite the fact that some Southerners and foreigners live in those Sharia States. In order to enforce the Sharia Law, the North created the HISBA Police. However, it is wrong to apply the Sharia Law to a foreigner. The major problem is their desire to extend the Sharia Law to all parts of Nigeria. In the same way, though without the help of the State Houses of Assembly in the East, the Indigenous People of Biafra have revived their Customary Law which is an unwritten body of laws and created Ndinche as the Customary Security Personnel to enforce the decisions and orders of the Supreme Council of Elders.”
2. The argument that there can be no other type of government within the government of the Federal Government of Nigeria is a foolish and blind argument. By statute, we have the State Governments within the Government of the Federal Republic of Nigeria. We have the Local Governments within the Governments of the States. In fact, in Imo State, we have the Community Governments within the Local Governments. These governments are statutory. In other words, they are a creation of statutes. The implication is that the State shall fund the governments created by statute. As the States in the North have passed the Sharia Bill into law, the States have the right to fund the Sharia Government in the North. On the other hand, Customary Government is not statutory because customary law is unwritten. It is therefore not funded by the State but by customary taxation called “utu-isi” in Igbo Language. We hope that someday the States in the East and West shall elevate the Customary Government into a statutory government by passing the Bills into law. In the practice of collecting the utu-isi, the Council of Elders usually sends the town-crier with an ogene or ekwe (gong or drum) to go round the community and announce that every adult male and female will pay some money such as N50 per man and N20 per woman for the community development projects. This is how our clients have been governed by their council of elders from time immemorial.
3. By the rules of customary law (Ochichi Amaala) under the Nigerian Legal System, it is the duty of the elders of the land to gather their children together, guide them, control them, manage them, resolve disputes among them by way of customary arbitration and discipline them in accordance with their native laws and customs to ensure peace and orderliness in the land. In the ongoing Suit No FHC/OW/CS/192/2013 between Biafra and Nigeria in the Federal High Court Owerri, the Claimants as represented by Bilie Human Rights Initiative deposed at Paragraphs 22 and 31 of their Affidavit as follows:
“22 That our Council of Elders provides leadership and governance for us under Customary Law without violating the Constitution of the Federal Republic of Nigeria. In its role as the customary Government of Indigenous People of Biafra, the Supreme Council of Elders makes policies and orders as customary administrative laws for the governance of the people to avoid anarchy and lawlessness among the people agitating for the independence of Biafra. Attached herewith as Exhibit A8 is the Policy Statements and Orders signed into customary administrative law by the Supreme Council of Elders”.
“31 That the Claimants are an organized body of people under the control and management of our Customary Government known as the Government of Indigenous People of Biafra with various government departments as shown in the Policy Statements and Orders exhibited in these proceedings as Exhibit A8 headed by the Supreme Council of Elders with physical office addresses as stated in this Further Affidavit and pursuing their right to self-determination by due process of law”.
3. In effect, the existence of the Customary Government of Indigenous People of Biafra is duly pleaded in Court and the Defendants are very much aware of it. I wonder why it is difficult for some people to understand that customary law is as valid and legitimate as any other corpus legis (body of laws) in the Nigerian Legal System. Section A2 of the Legal Instrument tendered in Court as Exhibit B states that the Supreme Council of Elders whose members were disclosed in the Court records had the duty under the Nigerian Customary Law to oversee, manage and control the affairs of Indigenous People of Biafra. Yes, it is the duty of the Elders of the land to manage and control their children. This is the Nigerian law.
4. There is a difference between the citizenship of a country and the indigenous identities of the peoples that make up the country. This is clear from the provisions of the United Nations Declaration on the Rights of Indigenous Peoples 2007. All Indigenous People of Biafra are Nigerians by citizenship but Biafrans by indigenous identity just as the people of Scotland are British by citizenship but Scottish by indigenous identity and now seeking for independence from Britain. The Customary Government of Indigenous People of Biafra is not sovereign but provides an internal command structure to manage and control the people to maintain peace and order in the land. Customary governance is lawful and, in fact, should be encouraged and supported by the Governments at all levels. Our clients are Biafrans by indigenous identity but Nigerians by citizenship until they gain independence from Nigeria.
Emeka Emekesri, Esq.
Solicitor for Indigenous People of Biafra