Lecture notes: Baasegun (Dr) Olusola Oni, Leader of the Yoruba Party in the UK
The 1888 Britain-Yorubaland Treaty matters a lot. It potentially is the most consequential pre-colonial treaty that Britain concluded in West Africa. Scrutinising it is vital for the future health of Yorubaland. The treaty established the legal basis for British interactions with Yorubaland. The treaty made the colonial legacy easier to understand, providing also lessons for future conduct, negotiations and agreements.
Treaties are usually conceptualised as giving rise to legally binding obligations and rights. What is not commonly realised is that treaties also gave rise to something else called ‘legitimate expectations’.
An ‘obligation’ is a responsibility to perform a specific action that was created by law, and enforceable through the legal system. A ‘right’ is an entitlement that was created by law, and enforceable through the legal system. A ‘legitimate expectation’ by contrast is the law that prevents a public authority, such, as a government, from going back on a clear and unambiguous promise or on its regular practice. A ‘promise’ is good grounds for expecting a particular occurrence whilst a ‘practice’ is good grounds for expecting a particular action.
The promises that Britain made in the 1888 Britain-Yorubaland Treaty gave rise to legitimate expectations for the Yoruba in regard to territory, relationships, and development. The promises created a reasonable anticipation that Britain would abide by the terms of the treaty, that Britain would act fairly. The Yoruba had a reasonable and well-founded belief that certain benefits would accrue from Britain’s promises.
Britain made 2 general types of promises
1. Explicit terms
An ‘explicit term’ is something that is fully expressed, stated directly, clearly, unambiguously, leaving no question as to intent, and no room for interpretation or assumption.
a. Article 4 explicitly stated that the Yoruba could charge tariffs on British goods. The legitimate expectation is that Britain recognised Yoruba economic autonomy.
b. Article 5 explicitly stated that non-trade disputes and differences would be resolved by the Alaafin or by arbitration. The legitimate expectation is that Britain recognised Yoruba adjudicatory autonomy.
c. Article 7 was explicit that no cession of territory would be made by the Yoruba. The legitimate expectation is that Britain recognised Yoruba territorial integrity, and would not interfere with it, in accordance with an 1865 parliamentary veto on Britain establishing additional settlements in West Africa.
d. Article 8 was explicitly contractual. The legitimate expectation is that Britain recognised that the 1888 Britain-Yorubaland Treaty was legally enforceable in British courts.
2. Specific representations
A ‘specific representation’ is something precisely defined, and tailored to a particular context, a precise statement of fact about a particular matter, explicitly listed in the treaty.
a. The Preamble specified that the 1888 Britain-Yoruba Treaty related to a specific geographical area. The legitimate expectation is that Britain recognised Yorubaland as an independent sovereign state with its own defined borders and frontiers.
b. The Preamble specified the use of legitimate trade to develop Yoruba resources. The legitimate expectation here is that Britain recognised it had an obligation to use trade to assist Yoruba development.
c. Article 1 specified peace and friendship between British subjects and the Yoruba. The legitimate expectation here is that Britain recognised the Yoruba as people with who it must have friendly relations.
d. Article 2 specified free trade whilst Article 3 specified exclusive trade between British subjects and the Yoruba. The legitimate expectation here is that Britain recognised the Yoruba as most valued trading partners.
Expectations were legitimate in the 1888 Britain-Yorubaland Treaty because:
a. the representation was clear, unambiguous, and unqualified;
b. expectation was induced by Governor Moloney’s letter of 23 May 1888;
c. Governor Moloney had authority from Queen Victoria;
d. the representation was applicable to the Yoruba;
e. the expectation was reasonable in all the circumstances;
f. the Alaafin did not employ fraudulent means to obtain the representation; and
g. Yorubaland lost its sovereignty and its territory. (Lord Diplock in the GCHQ case said that legitimate expectation must have consequences, which in this case it did and still does.)
Britain’s promises were deliberate and informed, not a random affair
Prior to the 1888 Britain-Yorubaland Treaty, Yorubaland was an unknown entity under the international law existing at that time. Britain made promises to the Yoruba based on certain facts and realities, and on knowledge it gained from its Lagos colony.
a. Yorubaland possessed population and territory; the raw materials necessary to be a sovereign State under international law.
b. The Yoruba possessed political intelligence, a necessary ingredient for making pacts of development, friendship and peace.
c. The Yoruba owned and governed a defined territory, an attribute of independence necessary for establishing free trade as obligated by the Berlin Act of 1885.
d. The Yoruba had large international markets with which British subjects could trade very easily with their goods and materials.
e. Yorubaland could behave itself in accordance with international law; this is what Ant White wrote in Practical Notes on the Yoruba country and its development (African Affairs Vol 1, Issue III, April 1902):
‘The people who inhabit the Lagos Hinterland are chiefly Yorubas and Egbas, they are peace-loving race, fairly industrious, who prefer working on their farms and attending markets to the more exciting pastimes of war.’
In other words, if Britain failed to honour promises it made to the Yoruba in the 1888 Britain-Yorubaland Treaty, it could not rely on ignorance for excuse.
This lecture was brought to you by the Yoruba Party in the UK. To support the YPUK please donate at www.yorubapartyuk.org