The Nigerian government’s reluctance to complete the Dasin Hausa dam continues to affect its people negatively. According to experts, the recent flood in various parts of Nigeria has been caused not only by the heavy rains but by the release of water in the Lagdo dam by Cameroon, and more directly, by Nigeria’s inability to honour its obligation under of a Memorandum of Understanding between the countries to build the Dasin Hausa dam.
At the Dasin village of Fofure Local Government of Adamawa state is the dam project which is supposed to cushion the effect of the pressure of the Lagdo dam in Cameroon, thereby preventing flooding in many parts of Nigeria. The project to build a dam has lasted for 40 years yet is nowhere near completion.
Suleiman Adamu, Minister of Water Resources said that plans to build the Dasin dam were discontinued in 2016 because of the poor feasibility study and engineering design. Thus, for over 40 years, the government resorted to notifying residents of affected areas, “to pack their load and go” any time the excess water in the Lagdo dam was released.
The International Organisation for Migration (IOM) reports that the unprecedented rainfall, in combination with spillage when the Lagdo dam in Northern Cameroon was opened to release excess water, has displaced over 39,500 people. An assessment by the organisation’s Displacement Tracking Matrix (DTM) concluded that 120 people in Bauchi state died or were injured due to extreme weather conditions between September 1 to September 12. The impact of the water release is felt largely by surrounding regions like Kogi, Benue, and some northeastern states in Nigeria like Borno, Adamawa, Bauchi, Borno, Gombe, Yobe and Taraba. The effect of the flood also spread to states in the South of Nigeria including Bayelsa, Delta, Cross River, Rivers and Anambra states.
Also, a report by the National Emergency Management Agency (NEMA) showed that the flood killed over 300 persons, injured 500 and displaced one hundred thousand persons. Mustapha Ahmed, the Director-General of the Agency made this known in September when the Cameroonian government had just opened the Lagdo dam. More recently, the number of casualties has increased. According to the agency, not less than 603 Nigerians have lost their lives while 2.5 million have been displaced. It gets worse; schools and places of worship have been shut down, there is a shortage of food as farmlands are flooded and businesses cannot be conducted effectively. More so, there have been reports by Nigerians living in the affected areas that snakes and other wild reptiles that have also been displaced from their natural habitats are seen in the waters close to their homes.
The disputed MoU – fact or fiction?
It has been alleged that the Nigerian and Cameroonian governments had entered into an agreement to build two dams North of both countries to manage the vast water resource in the area shared by both countries. The Dasin Hausa dam (to be built by Nigeria) and the Lagdo dam (to be built by Cameroon) were to be built in such a way that the waters from each of the dams would be able to flow into the other from time to time, cushioning the pressure and preventing floods. However, while Cameroon construction for the Lagdo dam started in 1977 and was completed in 1982 Nigeria is still in the process of completing the Dasin Hausa dam. Suleiman Adamu, the Minister of Water Resources has since denied there was such an understanding. However, to many, several factors and the Nigerian government’s notorious reputation for reneging on agreements are clear indicators that such an agreement exists.
to many, several factors and the Nigerian government’s notorious reputation for reneging on agreements are clear indicators that such an agreement exists.
For one, the Dasin Hausa dam in Adamawa had in fact been under construction for about forty years before it was put on hold and was to be constructed mainly to prevent flood by cushioning the effect of water released from the Lagdo dam in Cameroon.
Also, the Federal Ministry of Water Resources in 2012 reported that Nigeria was planning to enter an MOU with Cameroon on the management of the flooding caused by the Lagdo dam. At the time, the Ministry also reported that a technical mission to Cameroon was to be sent to Cameroon in order to discuss the modalities of the MOU and manage the water. According to the Ministry at the time, “what informed the decision to visit Cameroon is as a result of the September (2012) floods. One of the causes of the floods apart from the excessive rainfall was the unregulated water from Lagdo dam”.
Furthermore, in 2019, Suleiman Adamu said that the Cameroonian government was in breach of the MOU signed with Nigeria. According to him “we signed a Memorandum of Understanding with Cameroon that before they open the dam, they will let Nigeria know”. At this time, the Nigerian government accused Cameroon of not keeping to the terms of the MOU. According to the Minister of Water Resources, “this MOU was signed in 2016 here in Abuja when the Cameroonian president came on a state visit to President Muhammadu Buhari, it was signed here, I was a witness to that event”.
If it exists, is it enforceable?
A Memorandum of Understanding (MoU) is typically a statement of willingness by parties to carry out an intended purpose. An MoU is a document describing a bilateral or multilateral agreement between parties and expresses a convergence of will between them. It is an indication that there is an intended line of action to be taken. Such memoranda are most often seen in international treaty negotiations but also may be used in high-stakes business dealings such as merger talks. It is noncommittal in nature and the contracting parties will generally not be bound by its terms, thus, MoUs are typically unenforceable.
Countries utilise this alternative since they are not legally binding and have no international consequences. MoUs indicate that parties have reached an understanding and broadly outline terms to be formally agreed on. Unlike MoUs, the non-performance of a contract imposes liability on the defaulting party. Because MoUs between countries are merely political agreements, as opposed to legally binding treaties, the obligations or safeguards included in them are not enforceable.
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However, MoUs can be binding on parties in certain circumstances. These include where all conditions of a valid contract are existent or where any of the parties have carried out certain obligations in the expectation that the other party will also perform its part.
According to Philippe Gautier, Registrar of the International Court of Justice, in his article “Memoranda of Understanding: Mere Political Commitments or a Well-Established Category of International Treaty Law” states that “non-legally binding agreements are recognised in international practice”. What matters is not the form or instrument with which parties assert their commitments to do a particular thing but what essentially matters is the intention of the parties to be bound by their obligations.
Other considerations will be the content and terms of the MoU, or/and the conduct of the parties. International law has often recognised some instruments (including communiques, minutes of a meeting, declarations, etc) which would usually not be enforceable to be binding on parties.
For example, the International Court of Justice in 2002 recognised the agreement made at the meeting between Cameroon and Nigeria known as the Maroua Declaration of June 1, 1975, when the validity of the agreement was brought before the court. According to the Court, “During the meeting held at Maroua from May 30th to June 1st 1975, the two Heads of State of Cameroon and Nigeria agreed to extend the delineation of the maritime boundary between the two countries from point 12 to point G on the Admiralty Chart No. 3433…” The Maroua declaration in 1975, is a maritime boundary agreement, which extends a maritime boundary between the two countries further into the Gulf of Guinea. Nigeria argued that the agreement/declaration was invalid and non-binding because although the Nigerian Head of State, Yakubu Gowon had signed it, the agreement had not been ratified by any governmental process.
The Court has also enforced a communique in the Aegean Sea Continental Shelf (Greece v. Turkey) case of 1978. The court was to decide the validity of the Brussels communiqué of 31 May 1975. In settling the dispute which relates to the determination of the respective areas of continental shelf over which Greece and Turkey are entitled to exercise the sovereign rights recognised by international law, the communique made and meetings held by the parties were held to be enforceable. The Court held that “in the course of their meeting the two Prime Ministers had an opportunity to give consideration to the problems which led to the existing situation as regards relations between their countries. They decided [ont décidé] that those problems should be resolved [doivent être résolus] peacefully by means of negotiations and as regards the continental shelf of the Aegean Sea by the International Court at The Hague. They defined the general lines on the basis of which the forthcoming meetings of the representatives of the two Governments would take place.”
From the foregoing, an MoU between Nigeria and Cameroun is enforceable if it meets the criteria for which the international court has considered similar instruments to be valid. If indeed, Cameroon built the Lagdo dam in anticipation that Nigeria will build its own dam, it proves part-performance on their part, and Nigeria is obligated to keep its own part of the agreement.
Furthermore, looking a the conduct of the parties, Cameroon’s repeated actions of notifying Nigeria when the dam is to be opened and Nigeria’s allegation that they sometimes neglect to inform them, can be proof of the existence of the MoU and of Cameroun adhering to its part of the agreement.
Finally, the partial construction of the Dasin Hausa dam itself can be proof that the parties did indeed enter an MoU and intended to be bound by its provisions.
Conclusion
It is alleged that the MoU between Nigeria and Cameroon is meant to foster bilateral cooperation to allow sustainable management of water resources in the Benue basin, prevent flood and put the waters to more effective use. For instance, the Dasin Hausa dam in Adamawa state is to generate 300 megawatts of electricity and irrigates about 150,000 hectares of land in the state.
Even if there was no such agreement does not absolve the government of its responsibilities to its people. The construction of this second dam will be in the best interests of Nigerians and really, the government need not enter into any agreement of some sort before it can perform its duties.
The government owes the duty to ensure the welfare of its people as well as the safeguarding of their lives and properties as part of its social contract. The Fundamental Objectives and Principles of State Policy under the Nigerian Constitution lay down the policies which are expected of the state/government. The government is imposed with the obligation of ensuring that lives and property are protected, through its relations within and outside the shores of the country.
