INTRODUCTION: THE PEACE CHALLENGE IN NIGERIA
Despite the optimism on its return to democratic governance in 1999, Nigeria is still a divided society plagued by insecurity and dwindling peace. It faces the peace challenge, not only in the sense of the presence of intense and violent conflicts in some parts of the country, but also in the absence of adequate structures to prevent violent conflicts and advance equality and security.Footnote 1 At the heart of the challenge is the conflict between identities including religion, ethnicity and the distinction between indigenes and settlers, which has become a seedbed of tension, violence and insurgency in Nigeria.Footnote 2 Yet, conflict between identities is in itself neither a negative force nor harmful.Footnote 3 It is either a building or stumbling block in a state's development.Footnote 4 As Galtung notes, although conflict connotes the idea of two or more incompatible goals, conflict behaviour is not necessarily harmful.Footnote 5 Nevertheless, if managed ineffectively, conflict behaviour becomes destructive, resulting in a “Hobbesian state of affairs where everybody uses all possible means of destruction against everybody else”.Footnote 6 Equally, when politicized through the promotion of “negative stereotypes”,Footnote 7 identity conflicts can escalate into armed hostilities and undermine peace.Footnote 8 This is indeed the case with Nigeria, as seen in: the insurgency of Boko Haram (meaning western education is sinful), which is engulfing different states in the northern part of the country;Footnote 9 ethnicity and the indigene / settler question as evident in the crises in the Tiv-Jukun,Footnote 10 Ezza-Ezillo,Footnote 11 Ife-ModakekeFootnote 12 and Jos-KadunaFootnote 13 communities; and natural resources interlinked with ethnic and indigene / settler questions, as discernible from the Ijaw-Ilaje,Footnote 14 Urhobo-ItshekiriFootnote 15 and Niger DeltaFootnote 16 situations.
The contribution of identity to the fragility of peace and the uncertainty of unity in Nigeria has attracted the attention of commentators and researchers. Igbokwe comments that identities such as religion and ethnicity are usually serviced as instruments of war.Footnote 17 Reflecting on the agitation emanating from identity around oil resources and squander by the political elite, Fasan questions if there will ever be peace in Nigeria again.Footnote 18 While imaging the manipulation of ethnicity, religion and oil politics in Nigeria, Soyinka points out that “we may actually be witnessing a nation at the verge of extinction”.Footnote 19 Considering the challenges that confront the nation, Maier admits Nigeria is shaking and cautions that it cannot be ignored because, if it falls, it will “shake the rest of West Africa”.Footnote 20 Similar to Maier's position, Onwudiwe argues that the disintegration of Nigeria, the largest political concentration of African people on the continent, would pose a strategic danger to Africa's expected rebirth.Footnote 21
To be fair, the government is not completely lethargic in the face of the grave challenges that threaten the nation's peace and stability. For instance, efforts have been made to address the Niger Delta conflict through developmental programmes packaged under the amnesty initiative since 2009.Footnote 22 However, renewed insurgence in the Niger Delta region raises doubts about the success of the initiative.Footnote 23 In a similar regard, there have been activities on the part of the state and civil society geared toward addressing the Jos / Plateau conflicts.Footnote 24 Also, the federal government, through offices such as the National Security Adviser, State Security Service, Defence Intelligence Agency and Nigerian Intelligence Agency, was once involved in a proposed negotiation with representatives of Boko Haram.Footnote 25 The government called a national conference to exchange ideas and thoughts on issues and make recommendations to advance national unity.Footnote 26 Criticized as adding to the waste of public funds, issues on the conference agenda included potential sources of intense violence and insurgency: revenue sharing, resource control, state and local government creation, boundary adjustment and indigeneship.Footnote 27
However, these efforts by the state to tackle the sources of recurring violent conflicts portray an approach that denies the reality of a structural problem which cannot be addressed as a one-off event.Footnote 28 The approach lacks a legal basis or framework to motivate the consistent management of identity related conflicts and foster peace in Nigeria. In particular, Nigeria's 1999 Constitution identifies peace and stability as a common aspiration of the state,Footnote 29 but lacks a non-adversarial mechanism that can intervene to prevent or mediate identity based issues before they morph into violent or full blown armed conflicts. What is visible instead is the court, which is generally vested with the power to adjudicate disputes arising from a legal right, duty, liability, privilege, interest, obligation or claim.Footnote 30 Yet, sole reliance on the court ignores the limitations in it promoting peace and security.Footnote 31 It contrasts with the view of Ogunyemi, who calls for an expansion of “people's choices in every relevant way” in order to tackle the security challenge in Nigeria.Footnote 32 It betrays the reality that violent conflicts arising from a clash of identities are an integral part of Nigerian history.Footnote 33 It leaves unexplored the position of Emelonye and Chukwumaeze that the constitution is a strong legal framework in the hands of a state to coordinate identity issues such as religion and cultural activities.Footnote 34 Recognizing that a constitution should be open to constant review, should there be constitutional recognition of, and a role for, a group of non-partisan eminent persons, referred to in this article as the panel of the wise, to help in resolving violent conflict associated with identities and fostering peace in the polity?
This article makes a case for establishing a panel of the wise in the Nigerian Constitution and explores salient considerations in terms of its composition, functions and legal status for intervention. Following this introduction, the next section of this article examines briefly whether an argument advancing an alternative conflict management mechanism such as “a panel of the wise” can be validly made within the concept of “constitutional essentials”. The article then justifies the necessity of a panel of the wise as an “essential” in the Nigerian Constitution, before exploring key considerations for establishing the proposed panel to manage identity-related violent conflicts and foster peace in Nigeria, in terms of its composition, functions and legal status for intervention.
CONSTITUTIONAL “ESSENTIALS”: AN ALTERNATIVE CONFLICT MANAGEMENT TOOL IN CONTEXT
There has been scholarly attention on what a constitution should embody to aid the fulfilment of its role as a guide to governance in a democratic state. According to Rawls, “constitutional essentials” should reflect the fundamental principles that specify the general structure of government, political process, and the equal basic rights and liberties of citizenship that majorities are to respect.Footnote 35 Michelman defines commitment to the implementation of rights and laws and their effective administration as “constitutional essentials” for a state.Footnote 36 In Elster's view, “essentials” of constitutions should, at the very least, “define and protect the rights of the citizens” and “establish the machinery of government”.Footnote 37 Along similar lines, Rawls notes that the constitution should contain arrangements which are appropriate for reconciling conflicting opinions about rights and justice.Footnote 38
Raz's argument is instructive regarding the essential institutional framework for resolving conflicting opinions of rights and justice, interpreting rights, and the exercise of powers among organs of governance. Viewing the protection of basic rights as essential to protect “collective goods”,Footnote 39 which arguably include peace,Footnote 40 Raz explains that the court is particularly competent to deal with a conflict between rights affecting individuals and the functioning of organs of governance.Footnote 41 The institutional case for the court as an appropriate forum to safeguard rights in order to protect common goods rests on two contentions. First, litigation before the court is a channel of political action in solving intractable conflicts concerning individual rights.Footnote 42 Secondly, courtrooms generally provide groups with “insufficient economic power”, “little social prestige” or “poor education” a forum which allows their voices to be heard.Footnote 43
However, viewed from the lens of identity related violent conflicts, the reality about the process and outcome of the functioning of courts suggests that these arguments relating to the institutional role of courts are overrated. It can be ineffectual to rely on the court for redressing violent conflicts associated with identities including religion, ethnicity and natural resources. As Mamdani cautions, there is a danger in focusing on courts as the primary custodian of justice in redressing identity issues.Footnote 44 This is because identity questions are not always a question of “right against wrong” but one of “right against right”, which courts are not the most appropriate forum to determine. Whereas courtroom rules allow for either a guilty or innocent verdict, in identity based violent conflicts, neither side is “wholly innocent or guilty”. This is why, in Mamdani's view, a race identity conflict such as apartheid did not end in the adversarial process of the courts, where the “winner takes all”, but on the negotiating table.Footnote 45 Besides, although the religious, ethnic and resource considerations that underlie conflicts can be formulated as legal issues, these issues, and indeed the protagonists involved, are often fundamentally incompatible regarding the status quo, which may include existing law, rights and courtrooms. Hence, the management of such conflicts should anchor on a flexible and reconciliatory process outside the courtroom. This is more so as reconciliation is not the main outcome of courtroom adjudication. To be sure, it is disputed whether court litigation allows those who lack access to power an open forum for their voices to be heard.Footnote 46 Courts do not intervene in disputes unless invited by parties; generally, participants in destructive conflict moods or behaviours are the vulnerable, including youth, children and the illiterate, who may be unwilling or unable to access the courts or, when they do, may be dissatisfied with the outcome of their decisions. Indeed, court procedural rules, in terms of accessibility, may limit the scope for these vulnerable groups to participate.Footnote 47 The difficulty in relying on the process and outcome of court actions in relation to conflicts related to identity can be illustrated through examples from the functioning of courts of record and customary institutions in Nigeria.
The limitation of courts of record as an “essential” for resolving identity-based conflicts
While the courts of record, that is courts presided over by judges trained in law,Footnote 48 are an indispensable institution for conflict resolution and justice in Nigeria,Footnote 49 their adversarial process and the resulting outcomes are a major limitation on their use as an effective option for resolving violent conflicts associated with identity. There are several experiences which can be cited to support this thesis, although this point is highlighted with particular clarity in Okoroafor Mbadiniju and Others v Chukwunere Ezuka and Others,Footnote 50 regarding a land resource related conflict, a case which went all the way to the Supreme Court of Nigeria. The suit was commenced in June 1977 when the plaintiffs of Umuezeawara village in Anambra State successfully claimed at the High Court that the defendants of an adjoining village were their customary tenants and that, having denied being over-lords, the plaintiffs were entitled to recover the land on which the defendants had lived with their ancestors since time immemorial. On the implications of the decision, Udechukwu recounts: “when the plaintiffs of Umuezeawara, Ihiala, Anambra State won at the Nnewi High Court, they proceeded to demonstrate their victory by planting crops in every open space within the defendants' homestead even on the village grounds and approach roads”.Footnote 51 The defendants appealed to the Court of Appeal, which reversed the trial court's decision. Reflecting on the parties' reaction to the judgment, Udechukwu recalls: “[t]he crops were in full bloom nearing harvest time when the High Court Judgment was reversed by the Court of Appeal Enugu, in a judgment which returned the case to the High Court for retrial before another Judge. Immediately following the Court of Appeal decision, the defendants destroyed all the crops planted by the plaintiffs without any trace.”Footnote 52
Subsequently, on 7 October 1994, 17 years after the case had commenced, the Supreme Court allowed the appeal and reinstated the trial court's judgment. The sad consequence of this judgment was most unprecedented:
“This time, the victorious plaintiffs went to the entire village of the defendants with maniacal rage and vengeance, burning every building standing there, destroying every crop standing there and turning the place a desolate waste. Thereafter they set about partitioning the entire village to themselves. The defendants' village ceased to exist. This happened even though the two villages had intermarried for centuries. In fact the sister of the champion of the defendants was and is still married to the champion of the plaintiffs.”Footnote 53
The fact that intervention was only possible when the parties initiated a court action and “the winner takes all” approach of the judgment reveal the pathetic outcome of relying on courtroom litigation and decisions for addressing resource related conflict. Relying on the court alone as the bearer of the constitutional duty to resolve claims in such conflict scenarios may not always help in achieving a peaceful resolution.
The limitation of customary institutions as “essential” for resolving identity-based conflicts
One may argue, not without merit, that customary institutions (courts or otherwise) established under statute or informally are different and more useful than courts of record in addressing conflict situations.Footnote 54 For instance, unlike courts of record, customary courts are presided over by laymenFootnote 55 and consequently follow simple procedures with little or no regard for legal technicalities.Footnote 56 They derive their legal basis from laws including the constitutionFootnote 57 and state edictsFootnote 58 and account for no less than 80 per cent of the judicial work in every state of Nigeria, which bears eloquent testimony to their significance in conflict management.Footnote 59 Also, informal institutions are set up at different levels, including clan and village levels where traditional rulers focus on an amicable settlement of issues in what are often referred to as “palace courts”.Footnote 60 These channels utilize the wisdom of the elderly as an important tool for fostering peaceful co-existence and managing conflicts. For instance, among the Yorubas, three hierarchies, including the elderly and palace courts, are evident in conflict prevention and resolution. These are the baale [household head], mogaji [head of the extended family] and olubadan [the Ibadan king] in council. According to Albert, Awe, He'rault and Omitogun, in Ibadan the hierarchical power structure formally recognizes the mogaji as the head of an ebi [extended family]. The mogaji is usually the eldest or most influential person in the ebi. A baale is deemed responsible where his opinions and decisions are respected by those within his household.Footnote 61 According to the findings of Fadipe, the baale is also a mediator whose thoughts in disputes among members of his family are usually respected. Where disputes cannot be resolved or decisions reached, such matters may be referred to the mogaji or, in unusual cases, to olubadan in council.Footnote 62
Both the informal and court based customary institutions apply customary laws which are community owned, flexible and dynamic, and can adapt to conflict scenarios and achieve an amicable resolution of matters. These essential features of customary law and institutions were given judicial recognition in Oyewunmi Ajagungbade III and Another v Amos Owoade Ogunsesan, which described customary law as “the organic or living law of an indigenous people of Nigeria regulating their lives and transactions”.Footnote 63 The features were also restated in Agbai v Okogbue where the Supreme Court of Nigeria held that “customary laws were formulated from time immemorial. As our society advances, they are more removed from its pristine social ecology. They meet situations which were inconceivable at the time they took root”.Footnote 64 Therefore, customary laws and institutions are an important means of conflict resolution and management.Footnote 65 In addition to embodying the moral code or communitarian ethics, in aiming at reconciliation and harmony, customary laws and institutions contribute to the integration of society.Footnote 66
Even though their processes are non-technical and adversarial, the relevance of customary law and institutions for solving violent conflicts linked to identity is limited in terms of certain aspects of their processes and outcomes. First, in relation to the application of customary law through informal channels such as the palace courts, official intervention and manipulation are still possible as a result of dependence on the state for income.Footnote 67 Also, since they are usually removed from any official accountability, the role of traditional rulers in such a mechanism can be subject to dictatorship and corruption.Footnote 68 Largely dominated by men, the system remains patriarchal with the result that the voices of women are either unheard or altogether excluded in the dispute settlement framework in traditional settings.Footnote 69 Secondly, the dispute management strategies often generated by such institutions are localized and cannot be generalized beyond local boundaries. In relation to interventions by traditional institutions, Osaghe argues that, where located in ethnic groups, they may be seen as a continuation of ethnic domination by one ethnic group over another, further exacerbating conflict.Footnote 70
Thirdly, the application of customary laws generally presupposes parties who share similar customs, a feature which may not apply in the case of ethnicity or religion based conflicts, where parties may not share similar customary values let alone laws. This signifies that, if applied to conflicts associated with identity, there is a risk that a people involved in identity based violent conflicts may be held liable by a custom to which they do not adhere. Hence, the likelihood that different customary laws may apply to different participants in violent conflict situations is a disincentive for relying on customary laws and institutions. Finally, even in communities with known customary laws, the possibility cannot be ruled out that what is projected and applied as customary law is not the living customary law but the official version that may do more harm than good. Scholars including Bennet distinguish “official customary law” from “living customary law”. The former, largely traced to the advent of colonialism, refers to rules imposed by external authorities without local support and lacks legitimacy, while the latter is not fixed in any written codes and is dynamic.Footnote 71 In terms of outcomes, the application of the former may indeed operate as a potential source of conflict escalation.
In all, these arguments illustrating the weaknesses of courts and customary institutions in terms of their processes and outcomes undermine reliance on these infrastructures as the sole institutional essential for conflict management and justify the need for an alternative, complementary conflict management mechanism. This conclusion agrees with the notion of a constitutional “essential”, in that the concept does not totally exclude an alternative conflict management mechanism. For instance, Raz admits that, apart from the role of courts and parliaments, which dominate discussion on the appropriate forum for rights protection, there are “more channels of political action”.Footnote 72 Similarly, while stressing the role of courts in accountability over social rights, King explains the management of public law disputes through mediation, particularly its encouragement by Lord Woolf “in both judicial and extra judicial capacity”.Footnote 73 King then concludes that mechanisms, other than the courts, promoting dispute resolution are institutional “partners” in safeguarding constitutional aspirations and motivating social change.Footnote 74 Particularly in relation to resolving political disputes, Chukwuemerie views that the courts can be complemented through the use of alternative dispute resolution.Footnote 75 This suggests that an alternative conflict management tool can be useful in reconciling parties on conflicting issues of rights and governance. It signifies that the construction of a constitutional essential as embodying a vision for an alternative conflict management mechanism can be validly made.
However, Nigeria's 1999 Constitution only projects the courts as the sole “essential” institution in addressing conflict situations in matters of rights and governance.Footnote 76 This is not adequate for resolving identity related conflicts confronting the nation. It has been argued that the making of a constitution is always an open and incomplete project,Footnote 77 and that its content is a learning process amenable to review and change in the light of new experiences.Footnote 78 In the light of this, the next issue that merits discussion is the grounds on which the case can be made for including an alternative conflict management mechanism such as “a panel of the wise” in the Nigerian Constitution.
JUSTIFYING A PANEL OF THE WISE AS A CONSTITUTIONAL ESSENTIAL
Plurality of the Nigerian state and the search for peace
The overarching goal in creating what is known as modern Nigeria is purely administrative and economic.Footnote 79 In consequence, what constitutes the Nigerian state is a plural society divided by such identities as ethnicity, religion, language and natural resources.Footnote 80 Regarding ethnic plurality, experts estimate that Nigeria contains between 250 and 400 distinct ethnic groups, including three major players: the Yoruba, Hausa and Ibo.Footnote 81 Since its independence, a national identity has been difficult to achieve, which has created space for identification along the lines of religion, ethnicity or resources to assume wider importance.Footnote 82 This was worsened by the repression under the military regimes that punctuated democratic governance in Nigeria and largely, in Davidson's view, behaved “like pirates in power”.Footnote 83 The manipulation of identities remains the very foundation on which the democracy project is anchored in Nigeria,Footnote 84 and has remained so since 1999 when Nigeria returned to democracy.
Reflecting the trend in this regard are conflicts in the Niger Delta, which are largely due to the inability of the multinational companies involved in the exploration and exploitation of crude oil, and the federal government, adequately to mitigate the consequences of the companies' activities in the region.Footnote 85 Conflicts around religion, “indigene” rights and political representation in Jos have become protracted, affecting most parts of the state and raising wider security issues in Nigeria.Footnote 86 As many as 7,000 people have been killed since late 2001, when the first major riot broke out.Footnote 87 Similarly smacking of religion is the conflict between the federal government of Nigeria and Boko Haram.Footnote 88 Beginning as a minor skirmish in Yobe State, the Boko Haram conflict has escalated and claimed thousands of lives, including that of the movement's leader, Mohammed Yusuf, in 2009.Footnote 89 The spate of attacks by Boko Haram has changed since 2010, as illustrated by the UN office bombing, the attempted bombing of the Nigeria Police Headquarters and coordinated attacks in Damaturu, Maiduguri and Kano.Footnote 90 Consequently Nigeria is yet to experience the much discussed correlation between democratic governance and peace.Footnote 91
There is merit in blaming these scenarios partly on the organic instrument, that is the constitution, on which basis the nation is being governed. In particular, in failing to provide a mechanism to foster peace and assist with non-partisan and adversarial intervention in issues of ethnic, religious and resource based violent conflicts, there is a gap in the constitutional conception of Nigeria as a plural state. A proper appreciation of the plural nature of Nigeria would have allowed for a mechanism which focuses on the non-adversarial management of identity related conflicts as enshrined in the national constitutions of some African states.
The trend in national constitutions
A role for a body or tool focusing on non-adversarial conflict management that can inform the creation of “a panel of the wise” has found expression as an “essential” in the constitutions of some states in Africa, including states with a history of identity related violent conflicts. Article 61 of the 1995 Constitution of the Federal Republic of Ethiopia, for instance, establishes the House of the Federation, composed of representatives of nations, nationalities and peoples. One significant function of the house is to strive to find solutions to disputes or misunderstandings that may arise between different components of the state.Footnote 92 Another constitutional role of the house includes conflict management.Footnote 93 The house has played a significant role in addressing conflicts relating to ethnicity,Footnote 94 resource allocation and power distribution,Footnote 95 using means including referenda in areas of the Oromia and Somali regions to assess public opinion. In particular, it supervised referenda on disputes between some kebeles in the Shinele zone of the border area between Oromia and Somali States.Footnote 96 In Burundi, the Post-Transition Interim Constitution provides for the National Council of Bashingantahe, whose responsibilities include giving advice on essential questions concerning unity, peace and national reconciliation.Footnote 97 The Bashingantahe, which includes men and women of integrity, wisdom and love, plays a crucial role in traditional society as a driver of social cohesion and resolver of “non-judicial conflicts”.Footnote 98 Particularly in the 1993 ethnic cleansing crisis, they intervened to save many lives.Footnote 99 Also, the new Kenyan Constitution empowers the Parliament to make laws that encourage the application of traditional dispute resolution mechanisms for managing conflicts related to land.Footnote 100
Even in legal systems where plurality of identity is not a recurring source of tension and violence, there exists a role for a group focusing on the non-adversarial resolution of conflicts. In the Kingdom of Swaziland, the Tindvuna is a constitutional body of headmen that assists in the traditional governance of the country in areas such as hearing complaints and advising on the tempo of the nation.Footnote 101 The constitution of the self declared state of Somaliland establishes the House of Elders, vesting it with the power to address issues regarding the country's security and peace.Footnote 102 While it is not a constitutional creation, the National Peace Council (NPC) was established in Ghana as an autonomous national statutory commission by a cabinet decision in 2007, and by Parliament in May 2011 by virtue of the NPC Act of 2011.Footnote 103 The NPC has the mandate to prevent, manage and resolve conflict in Ghana. Its membership was drawn from academia, religious groups, traditional leaders and the business community,Footnote 104 and it performs a noteworthy role. For instance, the Bawku conflict, a matter fought up to the Supreme Court without a resolution to the crisis,Footnote 105 is a deep seated and longstanding ethno-political conflict between two ethnic groups: the Kusasis and Mamprusis in the Bawku traditional area of Ghana.Footnote 106 In that conflict, the council intervened, drew up a roadmap to peace,Footnote 107 and embarked on educating various ethnic groups on ways the conflict could be resolved.Footnote 108 Generally, the NPC plays a significant role in supporting district and regional security councils on conflict prevention, management and resolution.Footnote 109 Nevertheless, the general practice in some national constitutions is not the only basis for urging the creation of a “panel of the wise” as essential for the Nigerian Constitution. There is a trend in regional and sub-regional instruments evidencing that the creation of the proposed panel is viable.
The trend in regional and sub-regional instruments
Regional and sub-regional instruments are an important example regarding the establishment of a panel of the wise or similar mechanism as a conflict and peace intervention mechanism. Their provisions in relation to the composition and functions of such mechanisms are an important precedent to guide the inclusion of a panel of the wise as an essential component of the Nigerian Constitution. In tracing the meaning of a “panel of the wise”, as it is understood in contemporary legal instruments, the reference point both for its composition and role is the African Union (AU) Protocol Relating to the Establishment of the Peace and Security Council (PSC Protocol),Footnote 110 a pillar instrument on peace and security in Africa.Footnote 111 According to the PSC Protocol, members of the panel comprise “highly respected African personalities” who have made a significant contribution to the “cause of peace, security and development” in Africa.Footnote 112 The five members of the panel are individuals who are deemed non-participant and are selected on the basis of regional representation; they each serve for a period of three years.Footnote 113 Similar to the first appointments made to the panel in 2007,Footnote 114 the emphasis on non-partisanship, track-record and gender balance is reflected in the appointment of five new members at the 23rd ordinary summit, held in Malabo, Equatorial Guinea, on 26 and 27 June 2014.Footnote 115 The appointed members include Dr Lakhdar Brahimi, a former special envoy and foreign minister from Algeria (North Africa),Footnote 116 and Mr Edem Kodjo, former minister of finance and foreign minister from Togo (West Africa).Footnote 117 As a mark of commitment to gender balance, Dr Albina Faria de Assis Pereira Africano, former minister of petroleum and industry from Angola (Central Africa), Dr Luisa Diogo, former minister of finance from Mozambique (Southern Africa), and Dr Specioza Naigaga Wandira Kazibwe, former minister of gender and community development from Uganda (East Africa), are female members of the panel.Footnote 118
The panel was established to assist the Peace and Security Council and the chairperson of the AU Commission in their efforts, especially in the area of conflict prevention.Footnote 119 Its modalities, adopted in November 2007,Footnote 120 set out its functions more clearly. The panel principally offers recommendations on issues relating to the advancement and maintenance of peace, security and stability in Africa.Footnote 121 When necessary and, in any form it deems applicable, the panel can pronounce on any issue relating to the promotion and maintenance of such issues.Footnote 122 It can carry out this task either at the request of the council or the chairperson of the commission, or on its own initiative.Footnote 123 It can receive proposals for inclusion in its agenda, from any member of the panel, the council, the chairperson of the commission, the Pan-African Parliament, the African Commission on Human and People's Rights or civil society groups.Footnote 124 The panel uses fact-finding missions, good-offices missions and supporting mediation initiatives as some of its intervention tools.Footnote 125
In formulating the panel's general functions, the PSC Protocol does not expressly refer to identity based violent conflicts. Arguably, conflicts of that nature are not unrelated to its functions. Identity based conflicts can be linked to the workings of the panel by virtue of the Solemn Declaration on a Common Africa Defence and Security Policy (CADSP), an instrument established pursuant to article 7 of the PSC Protocol and that confers on the Peace and Security Council the power to implement CADSP.Footnote 126 CADSP requires the establishment of political organizations devoid of sectarian, religious, ethnic, regional and racial extremism.Footnote 127 As discernible from article 14(g) of CADSP, the intention of the declaration is to combat racism, religious extremism and xenophobic tendencies, and to encourage national identity,Footnote 128 as well as external and internal interests in the exploitation of resources.Footnote 129 Consequently, since the overall role of the panel of the wise is to assist the Peace and Security Council and chairperson of the commission, whose tasks include implementing CADSP, it can be validly argued that the panel's functions include assisting in the prevention and resolution of violent conflicts linked with identity.
Although criticized for its failure to do anything significant in the case of Mali and the Central African Republic,Footnote 130 and imperfect in the sense that it faces challenges including inadequate resources, visibility and accessibility,Footnote 131 the panel has engaged with identity related issues in violent conflict situations, at least in the context of electoral violence. In one report, it noted that “elections provide opportunity to express other grievances about resource sharing and ethnic rivalry”.Footnote 132 It observed that elections have aggravated communal, ethnic and religious conflicts in Africa,Footnote 133 taking the form of ethnic cleansing, balkanization, sabotage, evictions and mass displacements.Footnote 134 It noted that the uprisings and social unrest in North Africa in 2011 are linked with issues including ethnicity, religious marginalization and gender imbalances.Footnote 135 Generally, the panel has shown its willingness to mediate issues which may fuel identity based violence. It has engaged with several political crises, including those in Guinea, Guinea Bissau, Madagascar and Zimbabwe.Footnote 136 The panel carried out a mission to the Democratic Republic of Congo (DRC) from 6 to 8 October 2011Footnote 137 and has been active in mediating conflict in Mali, Ivory Coast, Libya and Egypt.Footnote 138
Sub-regional bodies such as the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC) have also developed institutions and practices similar to the panel of the wise. Article 20 of the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security of ECOWAS (ECOWAS Protocol) created the Council of Elders. Under this arrangement, the executive secretary is required to compile an annual list of eminent persons from various segments of society, including women, political, traditional and religious leaders. These are persons who, on behalf of ECOWAS, can use their good offices and experience to play the role of mediators, conciliators and facilitators whenever conflicts arise. The Council of Elders is constituted from an approved list to deal with specific conflict situations.Footnote 139 This council of eminent persons, on behalf of ECOWAS, can use its good offices and experience to address issues capable of breaching peace and security within the region. The council has been engaged in handling the crisis arising from the proliferation of small arms in the sub-region.Footnote 140 The council's activities also include election observation, monitoring human rights abuses, supporting peace processes, and providing counselling to heads of state and government and to ECOWAS, undertaking “quiet diplomacy”, which is devoid of publicity.Footnote 141
Although the SADC Protocol on Politics, Defence and Security Cooperation does not provide for a similar council, its article 11(3)(a) mandates the Organ on Politics, Defence and Security Cooperation to prevent, manage and resolve conflict by peaceful means. To this end, SADC engages eminent persons, as shown in the example of Lesotho and Madagascar where they were involved in post-election political concerns.Footnote 142 Appointment as a SADC eminent person is approached on a case by case basis.Footnote 143 For instance, while Sir Ketumile Masire, former president of the Republic of Botswana, was appointed as the eminent person and mediator for Lesotho, Joaquim Alberto Chissano, former president of the Republic of Mozambique, was the appointed eminent person and mediator for Madagascar.Footnote 144 Along similar lines, the Common Market for Eastern and Southern Africa (COMESA) Committee of Elders was established during the ninth meeting of COMESA ministers of foreign affairs, to address conflict trends among and within member states. The committee's mandate is to steer the course of preventive diplomacy for conflict resolution and augment COMESA's peacebuilding and peacemaking processes.Footnote 145 Composed of five members, the COMESA Committee of Elders is similar to the AU panel of the wise.Footnote 146 So far, the committee's activities have included election observation missions to the DRC, Uganda and Zambia. The committee also worked with the AU panel of the wise in undertaking pre-election assessment missions to the DRC and Egypt.Footnote 147 Although the workings of these institutions primarily relate to election and electoral violence, it is difficult to imagine that violence and grievances relating to identities such as religion, ethnicity and indigene / settler distinctions are excluded from their attention.
What emerges from this discussion is that there is evident practice and precedent under national constitutions as well as regional and sub-regional instruments that can inspire, shape or be adapted in establishing and operationalizing a panel of the wise in Nigeria. This article now explores how these developments may shape certain considerations in terms of the composition, functions and legal status of intervention in establishing the proposed panel.
ESTABLISHING A PROPOSED PANEL OF THE WISE: KEY CONSIDERATIONS
Composition of the panel
As discussed above, existing examples suggest three options for the composition of a panel of the wise.Footnote 148 Statutes prescribe a membership of five for each of the AU panel of the wise and the COMESA Committee of Elders,Footnote 149 so they are limited in their composition. This approach is different from that of ECOWAS, which allows a pool of the wise, composed of eminent persons from different regions, and the SADC approach, which is based on appointment on a case by case basis. In the case of Nigeria, arguably the AU and COMESA approach, which allows for a limited composition with membership spread across geo-political zones and with due regard for gender, could be adapted, for at least two reasons. First, being a novel concept, limiting composition to a particular number increases the possibility of the mechanism being taken seriously; it suggests that the threshold for selection is high and that the members have integrity. Secondly, a limited composition brings closer scrutiny and increases public confidence in a panel, rather than a pool of the wise, whose membership may be unknown and beyond scrutiny. Finally, a limited composition is not problematic as, in any case, the proposed panel would be supported by a secretariat.
Accordingly, in establishing a panel, Nigeria's Constitution could provide for a membership of six eminent persons in line with Nigeria's six geo-political zones recognized in the constitution,Footnote 150 with due regard for religion and gender balance. In addition to the emphasis on “distinction” and “track record” (requirements generally discernible from national examples, such as the NPC in Ghana and the Bashingantahe in Burundi, as well as regional and sub-regional practices), the non-partisanship of the panellists can be ensured by involving the executive, legislature and civil society in the process of selection for and removal from membership. For instance, the appointment or removal of a person as a panel member may be made by the president on the nomination of members of civil society, subject to confirmation by the Senate. The involvement of civil society would mean excluding the state from the empanelling and removal of an individual as a member of the panel, a peculiar approach distinct from how political appointments are made. This approach can substantially reduce the influence of political pressure on the functioning of the panel. Further, the security of their office can be strengthened by making their tenure a renewable term of five years, which is longer than the “magic” four year term for political office holders in Nigeria.Footnote 151 This means, all things being equal, that members of the panel will outlive political office holders.
Functions
The proposed panel may intervene in identity based conflicts on its own initiative, or when invited by parties or requested to do so by a member of civil society. Generally, the functions of the proposed panel are in the areas of conflict prevention and management, and fostering peace.
Conflict prevention and management
There is consensus that conflict prevention refers to any attempt by third parties to prevent the outbreak of violent conflict or its recurrence (preventive diplomacy).Footnote 152 This definition, in the opinion of Stewart, includes short-term intensive diplomacy to resolve disputes or manage crises, which extends to the period after the outbreak of violent conflicts (conflict management).
Since the Nigerian Constitution embodies the state's aspirations for peace and stability,Footnote 153 entrusting the panel with a conflict prevention and management role is necessary and will help to realise these national aspirations. As a result of its bi-partisan nature, the proposed panel should have responsibility for stepping into burning issues stemming from identity, before they escalate into violence and armed conflict. This is pertinent as conflict situations in Nigeria are not sudden. Rather, as has been argued, their root causes are often traceable to historical injustices that were allowed to fester due to a lack of effective attention by the political elite.Footnote 154 In relation to full blown violent conflicts, the panel's functions should include facilitating mediation efforts involving affected stakeholders. This may require third party interventions such as mediation. Creating such a role for the panel in the constitution would afford it the legitimacy to serve as a first point of call to participants in conflict, as well as a neutral go-between in conflicts involving the government and any other organized groups.
Experience from Ghana's NPC shows that a mechanism such as the panel of the wise can be useful in preventing or tackling complex conflicts. Even before it was officially inaugurated, the NPC was credited with preventing or containing conflicts during the 2008 elections and earned a reputation as a credible non-partisan institution.Footnote 155 The NPC's influence has extended to the regions where the regional peace advisory councils have been able to identify and mediate local conflicts early and so contain their escalation. These councils have thus become important early warning mechanisms in Ghana.Footnote 156
Fostering peace
Fostering a culture of peace in an identity based society is a huge, yet surmountable challenge. In addressing this challenge, the importance of peace education is useful, as stressed in several official documents of United Nations organizations such as UNESCO in 1974,Footnote 157 1980,Footnote 158 1994–95Footnote 159 and 1996Footnote 160 and the United Nations General Assembly in 1978,Footnote 161 1995,Footnote 162 1996,Footnote 163 1999Footnote 164 and 2002.Footnote 165 The UN declaration on a culture of peace and its related programme encourage member states to take action to promote a culture of peace at the national level as well as at the regional and international levels.Footnote 166 Reinforcing the importance of peace to the well-being of people in Africa, the African Charter on Human and Peoples' Rights (African Charter) equally guarantees the individual's right to national and international peace.Footnote 167
Although the Nigerian Constitution does not codify peace as a human right, Nigeria is a state party to the African Charter, which recognizes the right to national and international peace.Footnote 168 When the provisions of the charter are read along with the aspirations for peace and unity expressed in the constitution, there is a basis to encourage peace education as critical for creating the atmosphere needed for meaningful governance. Hence, the responsibility for promoting peace can be anchored in the panel. Entrusting the panel with such a constitutional role will provide or advance an appropriate framework to encourage peace education as a means for building a culture of peace in Nigeria. An example of what this can achieve is again discernible from Ghana, where the NPC has embarked on a series of workshops aimed at making youth become ambassadors for peace.Footnote 169
Legal status of intervention
A crucial issue in establishing the proposed panel is the legal status of the outcomes of its conflict interventions vis-à-vis other institutions, such as the courts that primarily deal with conflict management. Unlike the binding nature of court decisions, but similar to the non-binding legal status of recommendations of the AU panel of the wise,Footnote 170 outcomes of the proposed panel's interventions would be recommendatory and not legally binding. This is to be expected considering that the proposed panel would engage in conflict management with the aim of prevention, or helping parties to expand options and reach consensus on a solution to their grievances. Despite its recommendatory role, there is nothing preventing the relationship between the proposed panel and the court from being mutually reinforcing. There is a precedent regarding such a relationship. For instance, the modalities of the AU panel of the wise allow it to receive proposals for intervention from such bodies such as the Pan-African Parliament, the African Commission on Human and Peoples' Rights, thus creating a quasi-judicial mechanism.Footnote 171 Hence, the functions of the panel could include interaction with the courts when necessary. Such possibilities are already appearing in the rules of Nigerian courts, demonstrating that interdependence is possible, at least in the areas of initiating intervention and enforcing outcomes. There are provisions in the Lagos High Court civil procedure rules 2012 (2012 Rules) that support a potential synergy of the panel and the court in Lagos State. The 2012 Rules provide that the court registry can screen a matter brought before it for alternative dispute resolution (ADR) and, where appropriate, can refer the matter to ADR institutions.Footnote 172 As the panel's tools of intervention would include mediation for the purpose of reconciliation, it can be argued that the panel would come within the definition of an ADR institution under the 2012 Rules and, therefore, could receive matters referred to it under the court rules. Similarly, the Court of Appeal rules provide: “[a]t any time before an appeal is set down for hearing, the court may in appropriate circumstances upon the request of any of the parties refer the appeal to the Court of Appeal Mediation Program (CAMP); provided that such appeal is of a purely civil nature and relates to liquidated money demand, matrimonial causes, child custody or of such other matter as may be mutually agreed by the parties”.Footnote 173
The Court of Appeal Rules also allow parties the freedom to resort to any “alternative dispute resolution mechanism as considered appropriate in the circumstance”.Footnote 174 This means that, in deserving situations, disputants could engage the panel to resolve disputes, even if initial complaints have been commenced through court proceedings.
Possibilities exist that, even if the outcome of an intervention by the proposed panel is recommendatory, participants in its intervention may benefit from the court's enforcement procedures where necessary. That the outcome of the panel's intervention could be enforced, at least in Lagos State, is discernible from order 39, rule 4(3) of the High Court of Lagos State civil procedure rules, which provide that “an Award made by an Arbitrator or a decision reached at the Multi-Door Courthouse may by leave of a Judge be enforced in the same manner as a judgment or order of Court”.Footnote 175 Considering the way this provision is couched, it may be argued that the express mention of an “arbitrator” and “Multi-Door Courthouse” would exempt the outcome of the panel's intervention from the wording of the provision.Footnote 176 However, rule 4(3) cannot be read in isolation from the general vision of the court rules, which, according to the preamble dealing with overriding objectives, is to encourage amicable resolution by use of an ADR mechanism. Hence, read together with the overriding objective, being an alternative conflict management mechanism, the panel's intervention would not be excluded from the enforcement possibility under order 39, rule 4(3). Similarly, upon the successful outcome of an ADR mechanism, the Court of Appeal Rules allow the court to adopt the agreement reached by parties as its judgment.Footnote 177 This signifies that the outcome of intervention in conflict situations by the proposed panel could benefit from court procedures in relation to the enforcement of a judgment if the conflict participants so elect.
The legal status of the proposed panel could be boosted internationally through interaction with the umbrella body established in May 2013 by the AU Assembly and known as the Pan African Network of the Wise (PANWISE).Footnote 178 PANWISE comprises the panel of the wise, similar structures within the regional economic communities and all other African actors contributing to peace-making through preventive action and mediation.Footnote 179 Its aim is to bring together mediation institutions and actors across the continent, with a view to building synergies among all concerned.Footnote 180 Once established, the proposed panel could seek admission to PANWISE and, once admitted, share and benefit from experiences with similar institutions existing within the PANWISE network.
CONCLUSION
Violent conflicts associated with identities, including religion, ethnicity, oil resource and indigene / settler distinctions, continue to challenge peace and stability in Nigeria. Such conflict scenarios include Boko Haram, and the Niger Delta and Jos Plateau crises. The government's response in tackling this development is devoid of a normative basis that can motivate consistent conflict intervention and foster peace. This is evident in Nigeria's 1999 Constitution, which, while providing for peace as a common aspiration and making provision for the role of courts, fails to create a mechanism to address identity related violent conflicts, a recurring feature of national life. This article makes a case for the creation of a panel of the wise under Nigeria's Constitution and explores key considerations in terms of its composition, functions and legal status of intervention. Such a mechanism would fit into a theoretical discussion on the concept of “constitutional essentials” and is supported by the trend of national constitutions of African states as well as regional and sub-regional instruments, which can shape key considerations in terms of the composition, functions and legal status of intervention in establishing the panel.
The composition of the panel could follow the example of limited membership as shown in the practices of PANWISE and COMESA, with due regard for Nigeria's six geo-political zones, integrity, gender and religion considerations. Its impartiality and security could be ensured by including civil society in the appointment and removal of members and allowing for a renewable tenure of five years. The proposed panel should be able to intervene in identity based conflicts on its own initiative, when invited by parties, or when requested to do so by a member of civil society. While interventions by the panel would be recommendatory and non-binding, the legal status of the panel's intervention in relation to the court could be interdependent, allowing the two institutions to benefit from each other's processes. That such a synergy is possible is visible in the provisions of court rules, such as the 2012 Lagos State High Court Rules and the 2011 Court of Appeal Rules, which allow significant space for intervention by ADR mechanisms to benefit from court enforcement proceedings. Synergy with the umbrella body known as PANWISE, developed under the AU PSC platform, could also boost the panel's legal status internationally. The establishment of a panel of the wise as an essential in the constitution will make a real difference in the approach towards conflict management and fostering peace in Nigeria.
