Note: It is Ed’il Fitri already. And as I drift into –or should I say come out of- the element of a post-Ramadan fiesta, I serve you this week views I have expressed previously on the ‘secessionist right of a democratic minority’. Enjoy it.
Is a Union sacred and inviolable?
Whether a constitutionally governed nation is to exist in perpetuity, sacred and inviolable even by the existential realities of irredeemable socio-cultural fault lines, is a matter for the conjecture of the jurisprudence of law and of morality. The question being: should a democratic society be presumed immune –legally-speaking or morally so- even from the rumbling dissent of self-determined minorities bent on opting out of the union?
Or put another way: does a part of a constitutionally governed nation- whether it be a state or a section comprising of states- have a right to unilaterally seek, by whatever means, to opt out of that union and to form another? Or the converse of that may be asked: should a President in a constitutionally governed society be constrained by law or morality –or by both- to allow a part secede from the territory he is legally elected to govern?
Will he be obligated –by the Constitution or by the unwritten universal laws of nature, or by both- to fight to keep the union for which he was inaugurated into office to preserve, protect and defend?
These questions have continued to agitate the minds of jurists and of political scientists and there does not seem to be a single jurisprudential solution to the question of ethnic or other classes of minorities and their presumed right to self-determination or their duty of fidelity to an existing statehood to which they are fated by the circumstances of socio-political history to belong.
Yet proponents of the ‘right’ of ‘might’ to willful self-assertion say that any minority section of a constitutionally governed nation can secede from an existing state it no longer desires to be part of, -if not by a constitutional process, at the very worst by ‘force’.
Or is ‘Might’ the only ‘Right’?
Provided a seceding minority has the ‘will’, the ‘grit’ and the ‘fighting power’ to force its way out of the union; and provided thereafter it has the ‘might’ to defend its new sovereignty, -either against the revolting anger of un-yielding irredentists or against potentially emergent new rebellions from its very own.
But the reverse is also the case, that even as a MINORITY section of a democratic entity has recourse to the moral justification of the use of force to assert the inalienable right to self-determination, so does a democratic MAJORITY of a constitutionally governed nation have legitimate recourse to the use of force –if it can- to preserve the union. Thus, in actual fact the question of who is right between the majority fighting to preserve the union and the minority fighting to opt out of it, will simply be located in who is able to assert both ‘will’ and ‘firepower’ and not necessarily in who has the moral justification to so to do.
It can thus be seen that any argument by an existing political order in favour of the ‘right’ –legally or morally- to preserve a union is always concurrent with the arrogation by it of the ‘right’ to deny the seceding party its presumed ‘right’ to opt out of the union. And the reverse is equally the case, that secessionists, in arrogating to themselves the presumed ‘right’ to willful self-determination, also tend to deny the ‘right’ of the existing political order to fulfill its constitutional obligation of preserving, protecting and defending the union.
And so going by the doctrine of the ‘right’ of ‘might’ to forceful secession, it can be said that for the agitators of Biafra to secede from Nigeria, the section that they purport to agitate for –namely the South-East- must not only be able to outgun, or at the very least match the fire power of the existing political order, it must be able, permanently, to sustain and enforce its breakaway.
But going by the logic of those who insist that in all circumstances only ‘right’ should be ‘might’, no minority section of a constitutionally governed nation has the right to force its way out of a legal union except by the leave of the majority in that union through the due process of law and not on the sentiments of moral considerations.
The Lincoln perspective
Abraham Lincoln, the 16th President of the United State of America provided an excellent jurisprudential justification for the use of force to suppress any rumbling of undemocratic dissent that has secession as its ultimate goal. According to that perspective no democratic minority has a right under the law to secede from a union consecrated by the Constitution.
Lincoln came into office in 1861 by less than 40% of the popular vote and the advent of a republican administration had already created apprehension in some of the Southern states who feared the new President might interfere with the institution of slavery -which had existed in those states. In fact weeks before Lincoln’s inauguration seven of those states had already threatened to secede from the 72-year old Union. This was in spite of the fact that there was proof that although Lincoln opposed the extension of slavery into western territories, he did not favour abolition either in those states where it existed.
It was therefore clear that the secessionists had ulterior motives and were thus not to be pacified but confronted. And so Lincoln in his inaugural speech was to inform a shaky nation with a divided army that he was ‘prepared to fight a war to maintain the Union’. His argument being that ‘the right of a ‘democratic minority’ for self-determination cannot be exercised in override of the right of a ‘democratic majority’ which is constitutionally legitimated to preserve and to protect the Union.
The Right of ‘Way’ and the Right of ‘Say’
Lincoln, by the way, did not derogate the right of the ‘minority’ to dissent –including its so called presumed right to seek to dismember the Union in order to create its own; but he said that the exercise of that delicate species of fundamental right was essentially lower in the hierarchy of rights than the right of a ‘democratic majority’ to preserve the union.
Thus side by side with the right of a ‘democratic majority’, the right of a ‘democratic minority’ in any constitutional democracy cannot and has never been any higher than the passive extent allowed to it in the axiom which posits that ‘the minority has only a say and the majority a way’.
Constitutional checks and limitations
Said Lincoln in his Inaugural speech: “A majority held in restraint by constitutional checks and limitations … is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism”.
Nothing can be more rational; especially given the systemic, concept-driven nature of today’s organised societies whereby people have chosen, strictly to live by the principle of the rule of the ‘majority’. To what avail will that principle of ‘majority rule’ be if any ‘minority’ component of a constitutional democracy, at any time, and outside of the due democratic process, can choose to terminate the Union or to permanently alter and impair its constitutionally-prescribed configuration?
President Lincoln had also used the ‘doctrine of perpetuity’ to advance the argument that “in contemplation of universal law and of the Constitution” the Union of the states that made up the United States was “perpetual”; and that, that ‘perpetuity’ was necessarily implied even though it was not expressly stated “in the fundamental law of all national governments”.
And to that extent Lincoln felt justified and constitutionally legitimated to say to the secessionists of his days “no state upon its own mere motion can lawfully get out of the Union”! Said German Philosopher and social theorists Jurgen Habermas, “Being bound to the constitutional achievements and ideals of their predecessors, future generations (in any state) remain un-free; for they are denied the opportunity to found their own constitution”.
‘An oath registered in Heaven’
And although the Constitution, as Lincoln posited “contained no prohibition of secession or enforcement language to preserve the Union”, it did –like all other democratic constitutions- specify an oath of office mandating the President “to preserve, protect and defend the Constitution”. And if so, what can be more deserving of the President’s ‘preservation’, ‘protection’ and ‘defense’ -in a constitutional democracy- than the territorial integrity of the State?
And thus said experts that in the true interpretation of ‘sovereign power’, “since the people had not vested the President with the authority to fix the terms of separation”, Lincoln was right to make “war the inevitable consequence of secession” and to declare himself “constitutionally unable to stop it”. And as Lincoln himself eloquently said, whereas the secessionists had “no oath registered in heaven to destroy” the union, he as President had “the most solemn one to ‘preserve’, ‘protect’ and ‘defend it’.”
The Lincoln inaugural speech was the same in which he made the famous statement “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.” The phrase ‘the people’ without doubt referred to the ‘majority’ -and not a ‘minority’ of it.
A minority can only hope to court the understanding and cooperation of the ‘majority’ to cause the necessary due democratic processes, which may lead to a peaceful referendum. But since according to Lincoln, “Unanimity” on the one hand “is impossible” and “the rule of a minority” on the other “is wholly inadmissible”, anarchy or despotism –as he warned- would be “all that is left” if the rule of a ‘democratic majority’ was rejected.
Said Lincoln, even in the hypothetical scenario that the United States were ‘not a government proper’ but merely an association of states in the nature of ‘contract’, that contract could not be “peaceably unmade by less than all the parties who made it”; because, as he asked hypothetically, whereas “One party to a contract may violate (or)… break it, does it not require ‘all’ to lawfully rescind it?”
The right of the Igbo ‘minority’ or any other ‘minority’ for that matter, to secede from a constitutionally governed Nigeria must be located in the complex hyacinth of these jurisprudential argument. And in all honesty it is a right concurrent with – if not inferior to- the right of the democratic ‘majority’ to deny. (Source: Vanguard)