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8. Refutation of the “Consent to Incorporation” Thesis: The Pretended "Referendum" in 1972
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Chapter Eight Refutation of the “Consent to Incorporation” Thesis: The Pretended “Referendum” in 1972 The other “incorporation” line of argument canvassed by Cameroun Republic is that by “voting in favour” of “the institution of a unitary system” in the 1972 “referendum”, the Southern Cameroons thereby gave the mandate for its own incorporation into Cameroun Republic and cannot thereafter be heard to deny that it is part of that country.1 The 1972 “referendum”, it is further contended by Cameroun Republic, was a purely internal act of the Federal Republic of Cameroon and is beyond the reach of international scrutiny. This line of argument rests on the concept of constitutional autonomy enjoyed by a state and assumes that recourse to the referendum procedure was constitutional and that the “referendum” itself, as conducted, was a valid poll. These matters call for closer examination. In relation to international law, every state enjoys constitutional autonomy as an incidence of its sovereignty. The state is thus not subject to any other earthly authority, except, of course, for the limitations imposed by international law, and the presumption of international regularity applies to internal acts it performs. Furthermore, the governmental structure of a state and the form of its political regime do not concern the international legal order as there is no rule of international law requiring that the state must have a given structure. Further still, it is trite learning that the existence of a state is exposed to the flow of things and times, among which are change in the form of government and loss or increase of territory. However, constitutional autonomy is necessarily subject to international law because that concept cannot be a licence for any rule, policy, structure of state, or form of political regime, in violation of peremptory norms of general international law such as prohibitions on the use of force or aggression, genocide, racial discrimination, and slavery, the denial or suppression of selfdetermination , and the suppression of fundamental human rights. 104 Betrayal of Too Trusting a People International law may be indifferent to the structure and political regime adopted by a state. But it does not follow that those matters may not have repercussions at the level of international or domestic politics. Neither does it follow that those matters are completely within the domestic jurisdiction, since the principles of democracy, international election standards, peaceful co-existence of states, and human and peoples’ rights, for example, cannot be ignored. Again, while the structure of a state and its political regime might well be matters outside the concern of international law, it does not follow that they are also matters outside the concern of the municipal legal order. Thus, under domestic law the legitimacy or even the legality of a particular constitution may be challenged; and a particular structure of the state may be validly impugned. A Nazi-type Anschluss History shows that the referendum (or plebiscite) is the common fare of despots whenever they wish to confirm or rubber stamp a foregone state of affairs. In France, for example, Napoleon III who had risen to power by the principle of the plebiscite used it in 1859 to whitewash Piedmont’s reluctant transfer of Savoy and Nice to France. In 1938, Adolf Hitler, after entering Austria with his troops and secret police and annexing it, held a “genuine” plebiscite with the customary totalitarian results approving the Anschluss. In 1958, Charles de Gaulle, who became President of France during a crisis over Algeria, used the referendum procedure to rubber stamp his dictatorial constitution that ushered in the Fifth French Republic. Ahidjo’s 1972 “referendum” was thus mere imitation, and a poor and farcical one at that, because it was a pretended referendum in more ways than one. Ahidjo characterised his dictatorial scrapping of the Federation as a ‘peaceful revolution’. In the context in which that phrase was used, “annexation” is the apposite terminology for what was euphemistically termed “revolution” . Every revolution is illegal in terms of the constitution valid until then. Whether the revolution is characterised as peaceful or bloody (in fact a revolution need not involve bloodshed just as force need not involve a clash of arms), its effect remains the same. The existing constitutional order and government are overthrown. A junta (which may include members of the ousted government) installs itself, deriving its poisoned power from force or threat of force. [44.220.245.254] Project MUSE (2024-03-19 05:58 GMT) 105 Refutation of the ‘Consent to Incorporation’ Thesis: The...