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A Nation on Paper: Making a State in the Republic of Biafra

Published online by Cambridge University Press:  29 September 2020

Samuel Fury Childs Daly*
African and African American Studies, Duke University


What role did law play in articulating sovereignty and citizenship in postcolonial Africa? Using legal records from the secessionist Republic of Biafra, this article analyzes the relationship between law and national identity in an extreme context—that of the Nigerian Civil War (1967–1970). Ideas about order, discipline, and legal process were at the heart of Biafra's sense of itself as a nation, and they served as the rhetorical justification for its secession from Nigeria. But they were not only rhetoric. In the turmoil of the ensuing civil war, Biafra's courts became the center of its national culture, and law became its most important administrative implement. In court, Biafrans argued over what behaviors were permissible in wartime, and judges used law to draw the boundaries of the new country's national identity. That law played this role in Biafra shows something broader about African politics: law, bureaucracy, and paperwork meant more to state-making than declensionist views of postcolonial Africa usually allow. Biafra failed as a political project, but it has important implications for the study of law in postcolonial Africa, and for the nation-state form in general.

Legal Cultures
Copyright © The Author(s), 2020. Published by Cambridge University Press on behalf of the Society for the Comparative Study of Society and History

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1 Nigerian National Archives, Enugu (hereafter NNAE) BCA (Biafran Court of Appeal) 5/31/6, The State v. Ibrahim Bakar, 19 Dec. 1967. The names of criminal defendants in unreported cases have been changed to protect their privacy.

2 On the challenges of governing in these conditions, see Mampilly, Zachariah Cherian, Rebel Rulers: Insurgent Governance and Civilian Life during War (Ithaca: Cornell University Press, 2011)Google Scholar; Debos, Marielle, Living by the Gun in Chad: Combatants, Impunity, and State Formation (London: Zed Books, 2016)Google Scholar.

3 This argument builds on an important body of scholarship on colonial rules of law. See, for example, Roberts, Richard and Mann, Kristin, eds., Law in Colonial Africa (Portsmouth: Heinemann, 1991)Google Scholar; Chanock, Martin, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Portsmouth: Heinemann, 1998)Google Scholar; Moore, Sally Falk, Social Facts and Fabrications: ‘Customary’ Law on Kilimanjaro, 1880–1980 (Cambridge: Cambridge University Press, 1986)Google Scholar; Ibhawoh, Bonny, Imperial Justice: Africans in Empire's Court (Oxford: Oxford University Press, 2013)CrossRefGoogle Scholar; Surkis, Judith, Sex, Law, and Sovereignty in French Algeria, 1830–1930 (Ithaca: Cornell University Press, 2019)CrossRefGoogle Scholar.

4 Many parties have an interest in tarring contemporary African legal systems in this way, from presidents who discredit their own judges to undercut critique, to foreign corporations that use judicial dysfunction as an excuse to ignore local laws. See Appel, Hannah, The Licit Life of Capitalism: US Oil in Equatorial Guinea (Durham: Duke University Press, 2019): 162–66Google Scholar.

5 The definitive account of this episode is Douglas A. Anthony, Poison and Medicine: Ethnicity, Power, and Violence in a Nigerian City, 1966 to 1986 (New York: Heinemann, 2002).

6 Biafra Sun, 3 Aug. 1967: 2. The correct answer to both questions was “no.”

7 The ethnic dimensions of Biafran ideology are treated comprehensively in Nwauwa, Apollos O. and Korieh, Chima J., eds., Against All Odds: The Igbo Experience in Postcolonial Nigeria (Glassboro: Goldline and Jacobs Publishing, 2011)Google Scholar.

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9 Frederick Cooper's influential Africa since 1940: The Past of the Present (Cambridge: Cambridge University Press, 2019[2002]) argued for continuity across the moment of independence in its periodization—formal independence passes almost unnoted for many of the countries described. Many historians of independence have followed this lead.

10 Marxist scholars began making this point almost immediately after independence, arguing that the class of “compradors” who took power in most former colonies were members of a bourgeois elite whose rule was best understood as a continuation of colonialism. Debates about how to characterize Nigeria's elites continue. See Tijani, Hakeem Ibikunle, Britain, Leftist Nationalists, and the Transfer of Power in Nigeria, 1945–1965 (New York: Routledge, 2006)Google Scholar; Mayer, Adam, Naija Marxisms: Revolutionary Thought in Nigeria (London: Pluto Press, 2016)CrossRefGoogle Scholar.

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14 The cracks that showed through were not a referendum on their ability as storytellers, but rather a reflection of how difficult this task was. Jewsiewicki, Bogumil, “African Historical Studies Academic Knowledge as ‘Usable Past’ and Radical Scholarship,” African Studies Review 32, 3 (1989): 176CrossRefGoogle Scholar.

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17 Gregory Mann, From Empires to NGOs in the West African Sahel: The Road to Nongovernmentality (New York: Cambridge University Press, 2015), 5.

18 Important discussions of this problem include Herbst, Jeffrey, States and Power in Africa: Comparative Lessons in Authority and Control (Princeton: Princeton University Press, 2000)Google Scholar; Jackson, Robert H. and Rosberg, Carl G., “Why Africa's Weak States Persist: The Empirical and the Juridical in Statehood,” World Politics 35, 1 (1982): 124CrossRefGoogle Scholar.

19 National Archives of the United Kingdom, FCO 38/216, Summary of meeting between Lord Shepherd and Sir Louis Mbanefo, 11 June 1968.

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22 Significantly, this is the only time “Igbo” appears in the declaration. Ojukwu, Chukwuemeka Odumegwu, The Ahiara Declaration: The Principles of the Biafran Revolution (Geneva: Markpress, 1969)Google Scholar.

23 “Chief Chukwuemeka Odumegwu-Ojukwu,” in H. B. Momoh, ed., The Nigerian Civil War, 1967–1970: History and Reminiscences (Ibadan: Sam Bookman, 2000), 758.

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26 The evidence for this logic is admittedly partial. Biafra's legal records are very scattered and incomplete, and it is impossible to count cases in any given town or court with confidence. The fragments that survive suggest a wide and varied use of the courts, however, even though the importance of Biafra's legal institutions is difficult to establish quantitatively.

27 Ojukwu, Emeka, The Ahiara Declaration: The Principles of the Biafran Revolution (Geneva: Markpress, 1969)Google Scholar.

28 As Samera Esmeir argues, the rule of law can conceal and reproduce the forms of despotic power that it allegedly constrains; Juridical Humanity: A Colonial History (Stanford: Stanford University Press, 2012), 199. See also Mann, Gregory, “What Was the ‘Indigénat’? The ‘Empire of Law’ in French West Africa,” Journal of African History 50, 3 (2009): 331–53CrossRefGoogle Scholar.

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30 Enugu State High Court, uncatalogued collection, Innocent [illegible] and Patrick Ali, 13 June 1967.

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33 Biafra Sun, 5 June 1967: 1. Like other aspects of the Biafran legal system, the declaration of the state of emergency had its origins in colonial legal and administrative practice. Emergency measures had been implemented at many junctures in colonial Nigeria, most notably in the southeast in the context of the 1929 Ogu Umunwaanyi, a major anti-colonial rebellion led by market women in Aba. See Bastian, Misty L., “Vultures of the Marketplace: Southeastern Nigerian Women and the Discourses of the Ogu Umunwaanyi (Women's War) of 1929,” in Allman, Jean et al. , eds., Women in African Colonial Histories (Bloomington: Indiana University Press, 2002)Google Scholar.

34 NNAE MINJUST (Ministry of Justice) 115/1/1, “Special Tribunal Nbawsi—Return of Cases,” 11 Dec. 1969.

35 NNAE MINJUST 90/1/31, M.O.I. Idigo to Chukwuemeka Odumegwu Ojukwu, 2 July 1968.

36 Interview with Anthony Mogboh, in his chambers in City Layout, New Haven, Enugu, 2 Oct. 2014.

37 NNAE MINJUST 115/1/1, Attorney-General/Commissioner for Justice to the Chairman, Special Tribunal, Nbawsi, 10 Nov. 1967.

38 Interview with Mike Onwuzunike, Holy Ghost Cathedral, Enugu, 14 Sept. 2014.

39 Wheatley, Natasha, “Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State,” Law and History Review 35, 3 (2017): 753–87CrossRefGoogle Scholar. See also Umphrey, Martha Merrill, “Law in Drag: Trials and Legal Performativity,” Columbia Journal of Gender and Law 21, 2 (2011): 516–31Google Scholar.

40 Ojukwu, Ahiara Declaration.

41 Nelson Ottah, Rebels against Rebels (Lagos: Manson and Company, 1981), 124.

42 NNAE MINJUST 116/1/1, The State v. Emmanuel Eke Onwuachimba and Six Others, 1969.

43 Enugu State High Court, uncatalogued collection, Peter Iwoha and Commissioner of Police, 21 July 1967.

44 Judges sometimes commented on this tension in their rulings. See Enugu State High Court, uncatalogued collection, Nicholas Mbagwu and Chief Marcus Odum, Aug. 1967.

45 NNAE BCA 1/1/3, Nsisong Okon v. The State, 19 Mar 1968.

46 NNAE BCA 1/1/11, Iguo Okon Usung Urua v. The State, 19 Jan. 1968.

47 NNAE BCA 1/1/54, L. O. Uchendu v. Nigerian Railway Corporation, 2 Apr. 1968.

48 Uchendu's victory meant little, however, since secession had made the decision moot. The Nigerian Railway Corporation had ceased to exist as far as Biafra was concerned, and in 1968 the part of the railway still operating in the east was calling itself the “Biafra Railway Corporation,” a different entity from the one Uchendu sued.

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51 NNAE BCA 1/1/74, Ephraim Onwumere and two others v. The State, 12 Mar. 1968.

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54 They believed this despite efforts to standardize and codify customary law, most notably the Restatement of African Law project at the School of Oriental and African Studies in London. Customary law would later have a resurgence, but in the first flush of independence most African jurists felt that their fellow citizens deserved something better. See African Conference on the Rule of Law, Lagos, Nigeria January 3–7, 1961: A Report on the Proceedings of the Conference (Geneva: International Commission of Jurists, 1961).

55 Enugu State High Court, uncatalogued collection, “In re: Obongship of Calabar,” 9 Dec. 1967.

56 See also a case involving Igbo Biafrans who became caught up in a matter of Annang law, ultimately resulting in a mistrial. NNAE BCA 1/2/3, Nwamiri Anyiso and Nwaonumara Anyiso v. The State, 3 June 1968.

57 Enugu State High Court, uncatalogued collection, The State v. Ikenna Odoh, 9 Dec. 1969.

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