PACTA SUNT SERVANDA VERSUS CLAUSULA REBUS SIC STANTIBUS PRINCIPLES
The developing story after the 26 July 2023 military putsch in Niger Republic cannot escape the attention of any well-meaning Nigerian for obvious reasons.
Beside the point that military rule is generally regarded as an aberration and antithetical to democracy, Nigerians know at close quarters what military rule entails. Nigeria and Nigerians have severally been under military rule in the past until return to civil rule on May 29, 1999.
Military rule is antithetical to democracy. It is ascension to power through the barrel of the gun not via popular vote or ballot box. Under a military rule, there is no legislature which is an indispensable arm of government. The military ruler is the supreme authority and supreme law giver.
Under a military rule, the powers of the judiciary are sequestrated or whittled down by military laws which contain ouster of Courts jurisdiction.
Besides, under a military rule, laws are passed with fiat to take immediate effect and even made to apply retrospectively. Military rule has no or scant regard for human rights, due process and rule of law. “Obey before complain” is the mantra of the military. Obey the last order is the norm in a military rule. Nobody dares question a military law, order or decree.
Beyond the façade of incorruptibility, military rulers are generally corrupt and reckless with public finances as all the rules for accountability and transparency are abrogated, suspended or disregarded with reckless abandon. The average Nigerian knows, either from direct personal experiences or handed down history or scars left behind, that military junta or jackboot, no matter how benevolent, is not comparable to civil rule.
Nigerians were therefore alarmed when there was a successful coup plot in Niger Republic ousting the democratically elected President Bazoum.
This put the erstwhile French colony in the front burner of regional, continental and global discourses with grave concerns for Nigeria for sundry reasons. Niger Republic is a member of ECOWAS alongside Nigeria and other nations. However, beyond their common membership of ECOWAS, Nigeria shares close ties with Niger Republic in many significant ways. Nigeria and Niger share boundaries in about seven states of Northern Nigeria. Both countries intermarry; have deep cultural, religious, economic and social ties. The Nigerian currency, the Naira, is an accepted currency in Niger Republic. In some settings, it is believed that Niger Republic is part of Nigeria. Nigeria should therefore be interested in what happens in Niger Republic for diplomatic and other strategic reasons.
Shortly after the President of Nigeria was elected the President of ECOWAS on 9 July 2023, there was a military coup in Niger Republic on 26 July 2023.
Consequentially, it became incumbent on the Chairman of ECOWAS being the Nigerian President to rally other ECOWAS member States to resist the undemocratic regime change in Niger Republic. A key agenda of ECOWAS based on its Protocol on Democracy and Good Governance is to promote democracy and resist undemocratic regimes in member states.
Following this coup in Niger Republic, it became obligatory on ECOWAS member States to obey their common agreement and resist the undemocratic regime change.
ECOWAS and other regional and global authorities imposed severe sanctions on the military junta in Niger Republic in the first instance.
The recalcitrance of the military regime to back down, has made ECOWAS to start mobilizing for use of force by ordering the activation of its standby force, were imposed and a military action has been proposed as a last resort.
This proposed military action by ECOWAS has put Nigeria and her interest in a quandary, fix or predicament. Should Nigeria go with ECOWAS on the military action or should Nigeria back out of the agreement?
It is a fundamental principle of international law that agreements ought to be obeyed. This is better known by the Latin maxim pacta sunt servanda and arguably the oldest principle of international law.
Without such a rule, no international agreement would be binding or enforceable. Any country that is unable to obey agreements is often treated as a pariah state leading to international sanctions and isolation.
On the other hand, the opposite of pacta sunt servanda is the clausula rebus sic stantibus principle that allows a state not to fulfill its obligations in case of a fundamental change of circumstances. Applied directly, this goes to show that the obligation of Nigeria as an ECOWAS member State to approve of and partake in the proposed military action in Niger Republic should not be cast in steel in case of a fundamental change of circumstances.
Nigerians have been frenetic in rejecting the proposed military action in Niger Republic for tactical, diplomatic and patriotic reasons.
Within and outside Nigeria, protests have variously been staged against the proposed military action by ECOWAS forces against Niger Republic military junta.
Those who oppose Nigeria’s lead role in the ECOWAS onslaught against the Military junta in Niger have done so for assortment of legal, politico-economic and socio-cultural reasons which include but are not limited to the following-
(a) The President of Nigeria is not President of ECOWAS but President of Nigeria who is subject firstly to the Nigerian Constitution and ultimately answerable to Nigerian people.
(b) The Nigerian Senate had unequivocally refused to give permission to the President to deploy Nigerian military on combat duty in Niger Republic as required under section 5(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Much as the Senate was concerned about the coup in Niger, they categorically believed that military intervention would not be the best way to restore democracy. The Nigerian Senate further advised ECOWAS to instead focus on diplomatic and economic measures to pressure the junta to step down or give a timeline for return to democratic rule.
(c) Nigeria should not be used to fight proxy war or as a pawn to be used by countries that want to hurt Niger Republic. The coup in Niger Republic is allegedly staged to protest against France and its neo-colonialists agenda in Niger Republic.
(d) Any ECOWAS military onslaught against Niger Republic will amount to using Nigeria as a battle ground of the competing interests of USA, China, France and Russia in Niger Republic. According to one analysis “ECOWAS will not find it easy fighting the Wagner PMC. And there’s the local population voicing support for Russia and the military junta in Niger. American and French troops will not be on ground in Niger for obvious reasons. It will seem like what is playing out in Ukraine”.
(e) Nigeria cannot afford the luxury of full blown war with its neighbour much as it commits unequivocally to ECOWAS’ resolve to reinstating constitutional governance in Niger Republic. It is public knowledge that Nigeria’s economy is in shambles. Nigeria is already fighting too many costly internal wars against insecurity, insurgency, banditry, secessionists groups and militants.
(f) Many ECOWAS leaders are guilty of anti-democratic tendencies and therefore lack sufficient moral authority to question the developments in Niger Republic. There is no difference between what happened in Niger Republic and the flawed elections conducted by INEC in the 2023 general elections in Nigeria or the way some ECOWAS leaders have supplanted their national constitutions to achieve tenure bizarre elongations.
Many openly argue that it is hypocritical to condemn military coups without condemning institutional coup or democratic coup.
A few years back, all the member states of the ECOWAS were led by democratically elected governments. However, once some ECOWAS leaders decided to extend their tenure, there had been about nine successful and unsuccessful coups in West Africa.
Beyond the foregoing reasons which remain debatable, it is however indubitable that for reasons of overriding national interest, Nigerians are unanimous and unapologetic about voting against deploying military actions against the illegal and undemocratic regime in Niger Republic.
By this public opinion, Nigerians have not endorsed military rule but they are insistent that good governance remains a panacea for military coups.
Democracy is not just rule by capricious civilians but civil rule that guarantees provision of dividends of democracy to the populace.
The undemocratic rule in Niger Republic remains roundly condemned but Nigeria and Nigerians must not be made to bear the brunt of a costly attempt at return of democratic rule therein.
In refusing to undertake military action against Niger Republic, Nigeria can and should plead “clausula rebus sic stantibus” which is a principle that allows a state not to fulfill its obligations in case of a fundamental change of circumstances. There is no point undertaking to lead a military action that no one can predict how it will end.
National interest first. It is a formidable principle of international relations. Enough said.
A new normal is possible!
Prof Obiaraeri, N.O.
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