The War of Jenkins' Ear

by Chinua Asuzu, Assizes

I have named section 14(2)(b) of the Constitution the "Jenkins Clause" of the Nigerian Constitution. I have borrowed this name from the remarkable story of Robert Jenkins, whose ear, no doubt the most famous ear in world history, sparked off a war between Great Britain and Spain in the third decade of the 18th century.

In the early 1700s Spain was pining under the rule of French King Philip V. In those days Spain dominated maritime commerce in the New World. But Spain's subjection to a French ruler afforded France an enviable lead in the hugely profitable Spanish West Indies commerce. Britain did envy France its pre-eminent position in this market. Britain was allowed only a limited participation. Britain's constrained trade rights were as specified in the Treaty of Utrecht, 1713, which had brought to an end the War of the Spanish Succession. Understandably Spain had no special fondness for the French, but the Spaniards also hated the Treaty concession to the British.

The concession in question was contained in the asiento provision, a clause in the Treaty of Utrecht. It granted a monopoly to the British South Sea Company for the supply of some 4,800 slaves per annum to the Spanish American colonies, for 30 years. Asiento also allowed one British ship to trade generally in the Spanish Americas once a year.

To enforce asiento, in other words to make sure the British did not trade beyond the specified restrictions, Spain maintained a coast guard in their American waters to monitor British vessels.

On April 9th, 1731, the San Antonio, a Spanish coast guard vessel under the command of Captain Juan de Leon Fandino, intercepted the Rebecca, a British merchant ship sailing from Jamaica to London. Finding the logs and cargo at odds, the Spanish accused the Rebecca of breaching the Treaty of Utrecht. Captain Robert Jenkins of the Rebecca apparently insulted Spanish captain Juan de Leon Fandino. Fandino retaliated by cutting off one of Jenkins' ears with his sword.

Sea captain Robert Jenkins carefully preserved his severed ear. He took it home to England and reported the Rebecca incident to the House of Commons. In his report to the Commons, Jenkins averred that his ear was "cut off in April 1731 in the West Indies by Spanish coast guards who had boarded his ship, pillaged it and then set it adrift." The House received Jenkins' report with patriotic indignation, and empanelled a committee to deal with the matter. At the public hearing, Jenkins exhibited his severed ear. It was not a pretty sight. That was in 1738.

Sir Robert Walpole was Prime Minister. Because of the loss of one citizen's ear, Great Britain under Walpole declared war on Spain in October 1739. The attitude of the English people was that the Spaniards had to be taught a lesson: nobody could get away with slashing off precious English ears!

Nigerian government should treat every Nigerian at home or abroad as our own Robert Jenkins, and should loudly and frequently let it be known that Nigeria will not tolerate any undue or unlawful interference with the life, limb, ear or other organ or body part, rights, dignity, or integrity of any Nigerian. The Jenkins Clause of the Nigerian Constitution, section 14(2)(b), declares that "the security and welfare of the people shall be the primary purpose of government". This fundamental objective and directive principle of the Nigerian state imposes on the Nigerian government, at all levels and in all branches, a duty of care towards Nigerians all over the world. Over the past several decades Nigerian government has woefully failed to perform or exercise this duty. In some instances (Abacha, Babangida, Obasanjo), the government actually behaved in the opposite direction, by actively assaulting "the security and welfare of the people". For example, in 1999 Obasanjo attacked Odi community, a group of people to whom his government owed the outlined duty of care.

Nigerian government has frequently ignored or neglected its purpose of taking care of the people's welfare and security. Nigeria did little or nothing when the following Nigerian Jenkins suffered as indicated below:


· In August 1994, German police bound, gagged, heavily sedated and tortured Nigerian citizen Kola Bankole, all in the course of deporting him. Bankole died at Frankfurt Airport from heart failure.

· In September 1998, Belgian police asphyxiated 20-year-old Semira Adamu, a Nigerian woman they were deporting.

· In May 1999, Austrian police taped 25-year-old Nigerian Marcus Omofuma "like a parcel" and suffocated him to death in an attempt to deport him.

· In May, 2001, Swiss police officers, in the process of deportation, asphyxiated 27-year-old Samson Chukwu, a Nigerian.

· In June 2007, Spanish immigration killed 23-year-old Nigerian citizen Osamuyia Aikpitanhi under the guise of deportation.

· On 27 March 2008, barbaric and savage UK Immigration officials brutalized, suffocated and tortured a Nigerian, Augustine Eme, being deported on board a British Airways flight. Then British police, immigration and British Airways officials combined to maltreat and jettison over 100 Nigerian passengers for daring to complain about the torture of Eme. Ayo Omotade has been singled out for special mistreatment by the British authorities for standing up to plead for Eme's life. Omotade has been arrested, detained, handcuffed, prevented from attending his brother's wedding, had his personal items unlawfully seized, and had his integrity undeservedly questioned. Omotade is now facing a malicious prosecution in England. Nigeria has done little more than make a few feeble statements. Yar'Adua is visiting and cozying up to the British the same week Omotade's trumped-up charges are being read in court.

I often hear the complaint that Nigerians are not patriotic. It is alleged that we are not law-abiding. It is said for example that we do not pay tax. But over the course of several decades, Nigerian governments have so abused, brutalized, cheated, disenfranchised, and insulted Nigerians that many of us lost faith in the state. Yet most of us have remained patriotic and law-abiding, contrary to the allegations. In any case, governments in Nigeria now have a duty to elicit patriotism and law-compliance from the citizens. Lagos is already doing this with its obvious concern for "the security and welfare of the people". If Fashola continues and improves the positive direction he has chosen, you will see a steady rise in patriotic fervour and lawful conduct among Lagosians.

The best way for governments anywhere in the world to attract patriotism from citizens is by exhibiting proactive concern for their security and welfare. Government must defend and protect citizens, no matter who or what they are. Whether they are prostitutes in Italy or drug dealers in Thailand, Nigerian government, while respecting the legal systems of the host countries, must aggressively defend its citizens abroad.

The Nigerian government through its embassy in London should despatch a Nigerian lawyer to appear for Nigeria as amicus curiae (friend of the court), or on watching brief for Nigeria, in the Omotade prosecution. The circumstances warrant this. Omotade is clearly being persecuted for his patriotic audacity in behalf of fellow Nigerian Augustine Eme. Nigerian government should stand up in support and defence of Eme and Omotade, as well as all the Nigerian passengers on that eventful BA flight. Nigeria's Foreign Affairs officials here at home, and embassy officers in London, should take up the matter with relevant UK authorities.