Place of arbitration in resolving boundary conflicts
Conflicts across borderline communities are a common occurrence at all levels in Nigeria. Communities may experience a variety of conflicts, including intra-communal and inter-community conflicts.
Many times, these conflicts have led to huge losses of life and property. Consequently, responsible governments seek appropriate mechanisms for effective management of border crises to reduce the effects on citizens.
Border management experts have identified alternative dispute resolution mechanisms as the panacea, other than litigation, which the laws allow as means of settlement of disputes. Interestingly, it has long been a principle of public policy to encourage and promote the out-of-court settlement of disputes.
Mediation could include family and traditional mechanisms and arbitration by agencies purely set up by the government to handle and resolve disputes without necessarily going through normal litigation.
Each of them has its merit and demerit, its applicability, success and otherwise, depending on the circumstance of the situation, dispositions and beliefs of the people.
To resolve incessant border conflicts and to deepen the concentration on resolution of boundary disputes and conflicts, the Federal Government specifically established the National Boundary Commission (NBC).
Before the establishment of NBC, the Federal Ministry of Works and the Department of Federal Surveys handled boundary-related issues, and in some cases, Ad-Hoc Commissions or panels were constituted to look into cases of boundary disputes. In 1976, for instance, Justice Mamman Nasir Boundary Adjustment Commission was constituted to address the problems arising from the creation of additional states.
Kaloma Ali Boundary Ascertainment Commission was constituted in 1982 to address the Cross River/Imo interstate boundary. Justice Donald Ikomi Judicial Commission of Enquiry in 1987 was to look into the Benue/Cross River interstate boundary. In 1997, there was an Arthur Mbanefo Committee to look into state creation and Boundary Adjustment issues.
However, the uncoordinated nature of these Ad-hoc Commissions meant they could not arrive at sustainable solutions to various boundary disputes at that time. This led to the establishment of the National Boundary Commission (NBC) by Nigeria’s former military President, Gen. Ibrahim Babangida. Established in 1987, NBC coordinates all activities that would lead to the resolution of boundary problems and the definition of the nation’s numerous boundaries.
Also, it is part of the Commission’s statutory functions to encourage negotiated settlement of border disputes in preference to litigation. There have been adverse consequences and merits also associated with deployment of non-judicial processes by the body.
Such instances notwithstanding, experts hold the view that NBC, which is specially designated to handle boundary issues, and equipped with relevant departments and other experts trained to investigate and resolve boundary conflicts using various mechanisms other than judicial mechanism, would in most cases be a better channel of conflict resolution.
They argued that there are instances where those resolved through arbitration and mediation were appealed against and the court in appreciation of arbitration referred such matters back to the agency for a peaceful resolution.
A good example is the boundary dispute concerning the Ette Community, a long disputed community to which Igbo-Eze North and Olamaboro Local Government Areas of Enugu and Kogi States have laid claims. The Supreme Court, in its judgment, directed the Boundary Commission to effect an amicable settlement between both parties.
The Supreme Court of Nigeria specifically ordered the matter to be revisited by the NBC with a view to finding amicable settlement to the boundary disputes. “The responsibility to settle, demarcate and determine the true ownership of boundary disputes in Nigeria lies on NBC. Boundary disputes are matters that are essentially within the domestic jurisdiction of the defendant; to determine which people, parts of people and or place, belong to its component parts,” the court held.
The Community Court of ECOWAS also affirmed the need for participatory arbitration over judicial mechanisms as an alternative dispute resolution authority.
“The court will be a busy body to delve into such matters bearing in mind Article 2(7) of the United Nations Charter, which recognises that matters of this nature are within the domain which international law has no competence to deal with”, the ECOWAS court held.
The Cameroon-Nigeria border dispute is another example. After the ruling by the International Court of justices (ICJ), the judicial solution was not enough as a Mixed Commission had to be set up, among others, to determine the accurate position of the ground pillar and its quality assurance under the signed contracts.
The Mixed Commission was also expected to do field assessment to verify the position of the actual boundary and establish the numbers and location of the actual pillars, and placement of boundary pillars.
However, those interviewed by NBC seemed to have witnessed less post-conflict due to in-depth coordination of other variables and proper parties’ inclusion and involvement. But lawyers said that since NBC is not a final arbiter, it has to ensure all parties are satisfactorily carried along as they have court as options.
To achieve a peaceful border resolution, NBC has continually organised a series of interactive sessions to resolve disputes brewing along the boundary corridors in six geo-political zones to interface and strategise on the ways to fast-track the resolution of inter-state boundary disputes.
Despite the efforts of NBC, a series of border crises still linger in communities. According to experts, there are knotty challenges, which non-judicial mechanisms face. These include disputes over areas with rich resources; political interests, with each party wishing to maximise its influence over others; social factors arising out of value differences, either incompatibility preference, ideology or the desire to assert a group identity.
Director-General of NBC, Adamu Adaji said: “Sometimes, states lack the political will to even enforce some of these decisions. For political reasons, you find some states dancing to the tunes of their communities in trying to align with their resistance to some of our resolutions on boundaries. We have had cause to tell some states that interstate boundaries are not boundaries between border communities within states but between states.” He urged states to adopt a principle of give and take in resolution of disputes.
As part of recommendations for better mediation, the FCT minister, Mohammed Bello, suggested the use of specific relevant court judgments, land litigation and arbitration documents that could be adopted by the commission in demarcation.
Mohammed, in keynote address at the North Central interactive session held in Abuja stated further, that “the Commission in the absence of legal notice, vagueness or dearth of Gazette, should, where there are consensus claims by communities, adopt same as basis for demarcation.”
A Lagos-based lawyer, Paul Mgbeoma said that negotiation or mediation is recommended in resolving issues of boundary dispute. When parties reach a negotiated or mediated agreement, he noted, they would then immediately put it into writing and execute it. According to him, the executed agreement can then be filed as terms of settlement before the court.
“This ADR mechanism is suggested because of its informal nature and the fact that it is party-driven. It takes away the acrimonious feeling that comes with litigation whereby parties may end up engendering a lifetime enmity because of the winner-loser nature of litigation,” Mgbeoma said.
According to the lawyer, ADR is also less expensive and quicker than the average land litigation in which many of the initial plaintiffs/claimants may die without ever seeing the eventual outcome of the dispute.
However, he said, the court is a better mechanism for state boundary disputes, adding that it may have constitutional implications, particularly in oil-rich states.
“When the court makes an order in a boundary dispute between states, the NBC is under constitutional obligation to give effect to the decision of the court.
“This is as against going to the NBC first for resolution, only for an aggrieved state to still go back to the court to challenge whatever recommendation the Commission makes,” the lawyer stated.