Why the judicial annulment of the constitution of 1999 is imperative for the survival of Nigeria's democracy

Journal of African Law

Volumn 44, Issue 2, 2000, Pages 135-166

  Ogowewo, Tunde I ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

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EID: 0008644257     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855300012195     Document Type: Article

References (204)

1. T.I. Ogowewo, “Back to the 1979 Constitution”, The Guardian, 23 December, 1999.
2. The Constitution of the Federal Republic of Nigeria, 1999. It came into force with effect from 29 May, 1999.
3. For a short commentary on its provisions, see “A New Constitution for Nigeria” (2000) 44 J.A.L. 129.
4. According to Nwabueze, “[t]he legitimacy of a constitution is concerned with how to make it command the loyalty, obedience and confidence of the people.” See B.O. Nwabueze, The Presidential Constitution of Nigeria, London, 1982, 4.
5. A non-governmental organization (the Campaign for Democracy) in a statement signed by its chairman, Beko Ransome-Kuti said: “We wish to point out that it is a fraudulent document. At no time did we, the peoples of different nationalities in the geographical space called Nigeria, freely meet to discuss the formation of Nigeria and the conditions under which the people of different nationalities will associate.” See S. Bakoji, “Whither the 1999 Constitution?”, PostExpress, 23 May, 1999.
6. Recent press reports indicate that General Abacha and his family looted up to 8 billion US dollars from Nigeria. See “Another $1.25b Abacha loot frozen in Luxembourg” in www.NigeriaNews.net, 10 May, 2000.
7. Decree No. 32 of 1999. This decree was signed 19 days before the military handed over the government to the civilians.
8. S. 1(1), Part 1 of the Schedule to the Decree.
9. S. 1(2), Part 1 of the Schedule to the Decree.
10. S. 3(1), Part 1 of the Schedule to the Decree.
11. S. 3(2), Part 1 of the Schedule to the Decree.
12. S. 5(1–2), Part 1 of the Schedule to the Decree.
13. S. 5(3), Part 1 of the Schedule to the Decree.
14. Ss. 6–7, Part 1 of the Schedule to the Decree.
15. S. 10, Part 1 of the Schedule to the Decree. The decree goes into great detail in oudining the benefits of an ex-military leader. For instance, he is to have free postal privileges within and outside Nigeria (s. 8) and one direct telephone line at the Federal Government's expense (s. 9). He is (with his spouse) to take third position in the order of precedence after the serving President and Vice President at public functions and is entitled to a diplomatic passport for life and to protocol within and outside Nigeria.
16. See s. 4, Part 1 of the Schedule to the Decree.
17. The supremacy clause (s. 1) of the Constitution of 1999, replicates the wording of the supremacy clause (s. 1) of the Constitution of 1979. S. 1(1) provides: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” S. 1 (2) provides: “The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.” S. 1(3) provides: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”
18. An inter-party constitutional reform group has been constituted to identify areas where constitutional amendments are necessary. This is not, however, the appropriate solution, since a void constitution cannot be amended. Besides, it is doubtful that this would result in the repeal of the immunity clause in s. 6(6)(d). Indeed, it has been announced by the chairman of the National Assembly Committee on the Review of the 1999 Constitution that ex-military leaders will be involved in the fashioning of a new constitution. See, “Ex-Leaders to be part of Constitution Review”, The Guardian, 31 May, 2000.
19. See, O.I. Odumosu, The Nigerian Constitution: History and Development, London, 1963
20. T.O. Elias, Nigeria: the Development of its Laws and Constitution London, 1967
21. U. Udoma, History and the Lam of the Constitution of Nigeria, Lagos, 1994
22. B.O. Nwabueze, Nigeria's Presidential Constitution: the Second Experiment in Constitutional Democracy, London, 1985
23. J.O. Akande, The Constitution of the Federal Republic of Nigeria 1979-with annotations, London 1982
24. B.O. Nwabueze, Federalism in Nigeria under the Presidential Constitution, London, 1983)
25. H. Chand, Nigerian Constitutional Law, London, 1982
26. and B.O. Nwabueze, A Constitutional History of Nigeria, London, 1982.
27. Nigeria Independence Act, 1960, (8 & 9 Eliz. 2, c. 55).
28. The last one was the May 1960 constitutional conference.
29. The Lugard Constitution (1914–1922)
30. the Clifford Constitution (1922–1946)
31. the Richards Constitution (1946–1950)
32. the Macpherson Constitution (1951–1954)
33. the Lyttleton Constitution (1954–1960). The Clifford Constitution replaced the Legislative Council for the Colony and the Nigerian Council. The new Legislative Council was adjudged a success because it introduced the elective principle.
34. See Elias, above at 26–27. The Clifford Constitution, however, ran into problems because it excluded Nigerians from membership of the Executive Council and it had a system of nominated members (a feature still prevalent in modern constitution-making in Nigeria). To correct these problems, the Richards Constitution was introduced. According to Professor Elias (above at 37): “[T]t did not, however, go far enough, at least in Nigerian eyes. In any case, it had been conceived by Governor Bourdillon and designed by Governor Richards without full consultation with the people, and it was not generally well received on that score.” The Macpherson Constitution was the result of more consultation with the people and in this sense it was an advance on the previous constitutions. Its provisions reflected this. For instance, if a Regional law was inconsistent with a federal law with respect to the same subject matter, the Regional law prevailed over the federal law if the latter was enacted before the former. This contrasts very much with the position under recent constitutions in which the federal government has enormous powers to such an extent that it derogates from the principle of federalism. The point being made is that the process by which a constitution is fashioned is determinative of the contents of the constitution. Unfortunately, in 1954 when a new constitution was fashioned, the imperial government abandoned the practice (seen in 1951) of consulting at grass-roots level. It is, therefore, hardly surprising that in the fashioning of Nigeria's subsequent constitutions, the appropriate process by which the constitution ought to have been fashioned has not been followed. There is thus a tradition of constitutional illegitimacy.
35. See B.O. Nwabueze, The Presidential Constitution of Nigeria, above at 6. The last constitutional conference was described by Odumosu thus: “In May 1960 there was a small Conference in London which was concerned with outstanding matters in connection with Nigeria's approaching independence. Only governments (italics supplied) were represented at the Conference which had before it a draft of the Independence Constitution for Nigeria.”
36. See Odumosu, above at 132.
37. The Presidential Constitution of Nigeria. 6.
38. The Presidential Constitution of Nigeria.
39. Nwabueze, The Presidential Constitution of Nigeria above at 6.
40. The Presidential Constitution of Nigeria.
41. Commentators have recognized that the failure of the first republic was partly attributable to the constitution. See D.I.O. Eweluka, “Constitutional aspects of the military take-over in Nigeria” (1967) 2(1) Nigerian Law Journal 1, 2. This point has greater relevance presently because the constitution of 1999 lacks legitimacy, having been introduced by the previous military government. The military now face no serious inhibition in violating it.
42. For a graphic account, see O. Achike, Groundwork of Military Law and Military Rule in Nigeria, Enugu, 1978, 99–100.
43. The Constitution (Suspension and Modification) Decree No. 1 of 1966.
44. For commentary on the legal changes that resulted from the coup, see E.A. Keay, “Legal and constitutional changes in Nigeria under the military government” [1966] 10 J.A.L. 92
45. F.R.A. Williams, “Legal development in Nigeria, 1957–67: a practising lawyer's view” [1967] 11 J.A.L. 77. Interestingly, in March 1966 General Ironsi (the Head of State after the coup) set up a Constitutional Review Study group to “identify[…] the constitutional problems in the context of one Nigeria”. When inaugurating the committee, he stated that the form of government to be set up would only be established after consultation with the people to be followed by a referendum.
46. See Udoma, above at 232–233. The idea of promulgating a constitution after a referendum, to give the constitution legitimacy has never been pursued.
47. Constitution of the Federal Republic of Nigeria (Enactment) Act, cap. 62, Laws of the Federation of Nigeria, 1990.
48. About 400 memoranda were received. See Report of the Constitution Drafting Committee, (1976) ii.
49. Nwabueze, The Presidential Constitution of Nigeria, above at 2–3.
50. This is seldom recognized. One exception is the incisive comment of Adeniyi Ojebisi in “Behold the long-awaited constitution” PostExpress, 1 May, 1999. He said: “The nation's first autochthonous home-made constitution was promulgated in 1979 following many months of debate by the elected representatives of the people of Nigeria.” An autochthonous constitution is one that involves a breach of continuity with a former constitution. Military rule led to a breach of legal continuity and, therefore, the new constitution was autochthonous, since it could not derive its authority from the earlier Constitution.
51. On this, see J.S. Read “The new Constitution of Nigeria 1979: The Washington model?” [1979] 23 JA.L. 131, 134–135. One is not referring here to the defects of the constitution-such as the over-concentration of powers in the federal government. The defects being alluded to are those that are anterior to the terms of the Constitution. They centre on the control of the constitution-making process by the military administration.
52. The preamble to the enactment decree stated as follows: “Whereas the Constituent Assembly established by the Constituent Assembly Act, 1977, and as empowered by that Act has deliberated upon the draft Constitution drawn up by the Constitution Drafting Committee and presented the result of its deliberations to the Supreme Military Council AND the Supreme Military
53. See Constitution of the Federal Republic of Nigeria (Enactment) 1979
54. Decree, cap. 62, Laws of the Federation of Nigeria, 1990. The military government, for instance, added s. 274(5) and (6), which had the effect of entrenching certain military decrees (such as the Nigerian Security Organisation Decree, 1976, and the Land Use Decree, 1978) in the constitution. It was this that led Dr T.A. Aguda to state that: “From this point of view and from a purely legal point of view, the Obasanjo government [1976–1979] made the Constitution tell a big lie about itself by saying in the preamble that ‘We the people of the Federal Republic of Nigeria do hereby make and enact and give ourselves the following Constitution’.”
55. See T.A. Aguda, The Judiciary in the Government of Nigeria, Ibadan, 1983, 114. In this article, two rules have been devised for severing such provisions from the Constitution of 1979.
56. Constitution (Suspension and Modification) Decree No. 1 of 1984.
57. Constitution of the Federal Republic of Nigeria (Promulgation) Decree, 1989
58. cap. 63, Laws of the Federation of Nigeria, 1990.
59. It was the result of a constituent assembly of 450 elected members and 111 nominated members. A section of the community termed “radicals or extremists” was also excluded by the military. Even after this, the final report then had to be approved with amendments by the military administration. These two facts detracted from its legitimacy. For a devastating critique, see I.O. Agbede, “Conflict of legitimacy: an examination of the proposed supervisory role of the military in the transition to civil rule”, in Proceedings of the Eight Working Sessions of the National Conference on the Draft Constitution (28–30 June, 1988) (Nigerian Institute of Advanced Legal Studies, Lagos), 19–23.
60. Constitution of the Federal Republic of Nigeria (Promulgation) Decree, cap. 63, Laws of the Federation of Nigeria, 1990.
61. Constitution (Suspension and Modification) Decree No. 107 of 1993.
62. See Report of the Constitutional Conference Containing the Draft Constitution (1995).
63. The Constitution of the Federal Republic of Nigeria (Promulgation) Decree, 1999.
64. See the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree, 1999.
65. This decree, which purports to repeal the 1979 Constitution, came into force on 29 May, 1999. Although the PRC was the ruling body under the last military government, the Head of State did not need to consult with other members of the PRC before promulgating decrees. This is because s. 3(1) of Decree No. 107 of 1993, which deals with the procedure for promulgating decrees states that “[t]he power of the Federal Military Government to make laws shall be exercised by means of Decrees signed by the Head of State”. In A.G., Federation v. Guardian Newspapers Ltd [1999] 9 NWLR 187
66. Karibi-Whyte, J.S.C., said at 239 that: “This provision is short, terse and seems to me complete and self-explanatory. It has not prescribed any procedure. It merely says how the making of laws shall be exercised. Whatever procedure was adopted
67. Mr Justice Nwokedi, the Chairman of the Human Rights Commission, in an interview with the press said: “We have been 30 years under the army without respect for anything called a constitution, and by now, we have lost a sense of constitutionalism.” Quoted in S. Bakoji, “Whither the 1999 Constitution?” PostExpress, 23 May, 1999.
68. Nwabueze, The Presidential Constitution of Nigeria, above at 4–5.
69. The Presidential Constitution of Nigeria.
70. See s. 6(6)(d) of the Constitution of 1999.
71. D. Kanu, “One more constitution” PostExpress, 8 May, 1999.
72. The dynamics of the co-operation between the civilian elite and the military class in Nigeria is an interesting phenomenon. It has been pointed out that “the civilian elite may often have clamoured for democratic change, but they have always been quick to co-operate with the army after it has overthrown a democratic government.” See A. Alao, “Security reform in democratic Nigeria” at 10 (Working Paper No. 2 of The Conflict, Security & Development Group at the Centre for Defence Studies, King's College London).
73. It is no surprise that in the first budget presented to the National Assembly on 24 November, 1999, the Ministry of Defence received the second highest budgetary allocation, (see Alao, “Security reform in democratic Nigeria”, 42). The military institution from its very origins, as Glover's Hausas' in 1862, which later became the West African Frontier Force in 1897, was always a rent-seeking force.
74. Achike notes in Military Law and Military Rule in Nigeria (1978) at 22, that “it is common knowledge that before the advent of military rule in Nigeria, soldiers were not popular. He quotes Sir Ahmadu Bello who said: ”When the British came to the North, they started recruiting their army of soldiers by getting slaves who had ran away from their masters, labourers from the markets and so on, and had them enlisted in the force. They had a bad start then.”
75. House of Representatives Debate, 19 August, 1952.
76. J.S. Read, above at 175. As shall be demonstrated below, such a clause is not necessary to achieve this objective.
77. P.D. Okonmah, “Perspectives on human rights violations in Nigeria”, in Africa LesalAid Quarterly (July-Sept 1998), 11.
78. “Constitutional debate committee recommends adoption of 1979 Constitution” PostExpress, 1 January, 1999.
79. Statement released by the Campaign for Democracy quoted in “Whither the 1999 Constitution?” by Sukuji Bakoji in PostExpress 23 May, 1999.
80. “Abubakar signs Constitution into law”, PostExpress, 7 May, 1999. The nation was misled into thinking that the amendments would be such as to update the Constitution, such as the introduction of provisions that take cognizance of the increased number of states in the federation and such like. However, the intention of the unelected PRC was to introduce other provisions.
81. Such provisions, in the words of the Preamble of the Constitution of the Federal Republic of Nigeria (Promulgation) Decree, 1999, are those that “are deemed necessary in the public interest and for the purpose of promoting the security, welfare and good governance and fostering the unity and progress of the people of Nigeria”.
82. See the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree, 1999.
83. Ordinary constitutional amendments may be effected by both chambers of the National Assembly, with a two-thirds majority of all members in each House and the approval by resolution of the Houses of Assembly in at least two-thirds of the States. See s. 9 of the Constitution of 1999.
84. Mr Justice Nwokedi, the Chairman of the Human Rights Commission, in an interview with the press was quoted as asking rhetorically: “Have you ever heard about a country conducting an election without a Constitution.” Quoted in Bakoji, Constitution, n. 67.
85. See J.M. Finnis, “Revolutions and continuity of law”, in Oxford Essays in Jurisprudence (Ed. A.W.B. Simpson) (2nd series) Oxford, 1973, 44, 61–65.
86. J. Raz, The Concept of a Legal System, Oxford, 1980, 58.
87. Taylor v. McGirr (1986) 2 BCC 99, 176.
88. Cap. 192, Laws of the Federation of Nigeria, 1990.
89. Cap. 77, Laws of the Federation of Nigeria, 1990.
90. This author has attacked the prevailing standing rule elsewhere. See T.I. Ogowewo, “The problem with standing to sue in Nigeria” (1995) 39 J.A.L. 1
91. T.I. Ogowewo, “Wrecking the law: how article III of the Constitution of the United States led to the discovery of a law of standing to sue in Nigeria”, (2000) Brooklyn Journal of International Law (forthcoming).
92. The two battles are formidable ones. First, the plaintiff would have to demolish a standing rule that is assumed to be constitutional. Second, the plaintiff would have to demolish the constitution itself. The recent decision of the Supreme Court in Owodunni v. Registered Trustees of Celestial Church of Christ and 3 ors, (2000) 6 S.C. (Part III) 60, may have made the first battle unnecessary.
93. The test for the application of this rule has been formulated in the following terms: “standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.” See Bello, J.S.C, in Adesanya v. President of the Federal Republic of Nigeria and anor [1981] 1 All NLR (Part 1) 1 at 39.
94. See Bello, J.S.C., in Adesanya's case [1981] 1 All NLR (Part 1) 1 at 39
95. the judgment of the Court of Appeal [1981] 2 All NLR (Part 1), 1, 18 (which was affirmed by the Supreme Court)
96. see also Bello, J.S.C., in Attorney General of Kaduna State v. Hassan, [1985] 2 NWLR 483 at 508D, 509A-B
97. Oputa, J.S.C., in Thomas v. Olufosoye [1986] 1 NWLR 669, 691E-F
98. Belgore, J.S.C., in Odeneye v. Efunuga [1990] 7 NWLR 618, 639E-F.
99. See also Alofoje v. F.H.A. [1996] 6 NWLR 559, 567G
100. Adegbite v. Raji [1992] 4 NWLR 478, 488A-C
101. Amodu v. Obayomi [1992] 5 NWLR 503, 512F-513C.
102. In Ejiwunmi v. Costain (WA.) Plc [1998] 12 NWLR 149
103. Musdapher, J.C.A., states (at 164H): “The issue that now has to be decided is whether the statement of claim has disclosed any personal legal right for which the respondent is entitled to any remedy and if at all they have a right which has been violated.” Uwaifo, J.C.A., said in Olagbegi v. Ogunoye II [1996] 5 NWLR 332, 352, that for there to be locus standi “the statement of claim must disclose a cause of action vested in the plaintiffs regarding their rights or obligations which have been violated in the subject-matter”.
104. See also In Re Adetona [1994] 3 NWLR 481, 488E-F
105. where Tobi, J.C.A., said: “Locus standi can only arise from a right cognisable and conferred on the plaintiff by law. Where there is no such right, the plaintiff cannot be said to have a standing (sic) to commence or institute the action.”
106. See also Attorney General of Anambra State v. Eboh [1992] 1 NWLR. 491, 505F-G, 510B
107. Busari v. Oseni, [1992] 4 NWLR 557 at 587–589
108. Albion Const. Ltd v. Rao Investments Ltd [1992] NWLR 583, 593D-H. The courts sometimes state this test as a sufficient interest test, but use the term to denote the required quantum of interest-that quantum being a legal right.
109. See, e.g., Kilfco Ltd v. Philipp Holzmann A.G [1996] 3 NWLR 276, 296G
110. Ogbuehi v. Governor oflmo State [1995] 9 NWLR 53, 87B
111. Keepler v. Ofosia [1995] 3 NWLR 415, 429G
112. Adeyemi v. Olakunri [1994] 2 NWLR 500, 507H-508B
113. Bamidele v. Commissioner for Local Government [1994] 2 NWLR 568, 583H-584A
114. Okafor v. Asoh [1999] 3 NWLR 35, 55, where the court uses the term “sufficient legal interest”.
115. [1990] 7 NWLR 618, 639.
116. See, e.g., Egolum v. Obasanjo [1999] 7 NWLR 355
117. Adenehan v. Ajqyi [1998] 8 NWLR 473
118. Financial Merchant Bank Ltd v. Nigerian Deposit Insurance Corporation [1995] 6 NWLR 226.
119. See, e.g., Oyediran v. Bolarinwa [1998] 12 NWLR 559, 561.
120. J.O. Akande, above at 2.
121. Adekunle v. Aremu [1998] 1 NWLR 203.
122. D.I.O. Eweluka in “Constitutional aspects of the military take-over in Nigeria” (1967) 2(1) Nigerian Law Journal, 1, 5, states that: “A coup d'etat cannot succeed in a country without destroying the country's existing constitution.”
123. [1971] U. Ife. L.R. 201.
124. What the case established was not that the military could not suspend a constitution-it was assumed that this was possible (in fact, before this case the Supreme Court had in Issac Bom v. The Republic (1966) SC 377/1966 given implicit approval of the military government)-but that it could not pass decrees that infringed the constitutional principle of separation of powers. The court held that a decree that constituted a legislative judgment offended Chapter III of the republican constitution (which had not been suspended) and, therefore, it could be invalidated on that ground.
125. Decree No. 28 of 1970.
126. For a study and statistical analysis of the prevalence of ouster clauses in Nigeria, see G. Fawehinmi, “Denial of justice through ouster of court's jurisdiction in Nigeria” in Contemporary Issues in Nigerian Legal System (sic) (ed. E.S. Olarinde et at.), Ibadan, 1997, 67.
127. See, for example, The Federal Military Government (Supremacy and Enforcement of Powers (Amendment No. 2) Decree No. 16 of 1994.
128. Hence in A.G., Federation v. Guardian Newspapers Ltd [1999] 9 NWLR 187
129. Karibi-Whyte, J.S.C, stated at 240: “By the promulgation of the Constitution (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, courts of this country were brought under the absolute control of Military Decrees. Successive Military Governments, in 1984, and now Decree No. 107 of 1993 have adopted this same position. The resulting position in these decrees is that no court in Nigeria has jurisdiction to question the vires of the Military Government to promulgate a decree, or the validity of the decree, or to declare any decree null and void. The following decisions represent a consistent line of such judicial decisions of this court. Hope Hartiman v. Mobolaji Johnson (1970) All NLR 503
130. Adenrek Adejumo Nigerian Construction Co. Ltd. v. Col. Mobolaji Johnson (1974) All NLR (2nd Edn, vol. 1) 26 at 30
131. Adejumo v. Military Governor of Lagos State (1972) 1 All NLR (Pt. 1) 159
132. Uwaifo v. A-G, Bendel State (1983) 4 NCLR 1
133. A-G of the Federation v. Sode (1990) I NWLR (Pt. 128) 500 at p. 518
134. Obada v. Military Governor, Kawara State (1990) 6 NWLR (Pt. 157) 482
135. Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139
136. Osadebey v. A.G, Bendel State (1991) 1 NWLR 533.”
137. The Constitution Drafting Committee in its report that led to the Constitution of 1979 had stated: “A Constitution is in reality the agreement of the entire nation as to how they wish to be governed.” See, Report of the Constitution Drafting Committee Vol. 1, (1976) iv.
138. [1985] 1 R.C.S. 721, 745.
139. B.O. Nwabueze, Nigeria's Presidential Constitution: The Second Experiment in Constitutional Democracy, above at 1.
140. Okonmah, above at 14.
141. A remarkable instance of this was when Ejiwunmi,J.S.C., referred to usurpers in the following terms: “the succeeding Military Governments that have had the privilege of governing this country.” See A.G., Federation v. Guardian Newspapers Ltd [1999] 9 NWLR 187, 285D.
142. [1999] 9 NWLR 187.
143. T. Mahmud in ‘Jurisprudence of successful treason: coup d'etat & common law” (1994) 27 Cornell Int. Law Journal 49, has shown that a court has four options when confronted wiui the successful execution of coup, viz. (i) validate the usurpation of power; (ii) declare the usurpation unconstitutional and hence invalid; (iii) resign and thereby refuse to adjudicate the legality of the demise of the very constitution under which the court was established or (iv) declare the issue a nonjusticiable political question. He argues (at 1 OOff.) that the last option is the most appropriate option to take.
144. (1958)P.L.D. S. Ct. 533.
145. [1966] E.A. L.R. 514.
146. Civil Appeal No. 11 of 1980
147. Seychelles Court of Appeals (7 Commonwealth L. Bulletin 1249 (1981)).
148. (1989) L.R.C. Const. 24.
149. Mahmud, SA, 72–73.
150. The Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree, 1999.
151. See, for example, D.O. Aihie, above at 230–241.
152. H. Kelsen, General Theory of Law and State, Berkeley, 1946.
153. See also H. Kelsen, The Pure Theory of Law, Berkeley, 1967.
154. S.A. de Smith, “Constitutional lawyers in revolutionary situations”, (1968) 7 W. Ontario L. Rev. 93, 103.
155. General Theory, 117
156. Pure Theory, 209.
157. See, for example, O. Achike, above at 125.
158. Uwaifo, J.S.C., in A.G., Federation v. Guardian Newspapers Ltd [1999] 9 NWLR 187, 220 said: “[Tjt must be acknowledged that when there is a successful abrupt change of government in a manner not contemplated by the Constitution, a revolution is deemed to have taken place. It follows that if such change was brought about by the military, it is a military revolution even if it was a peaceful change.”
159. A.G., Federation v. Guardian Newspapers Ltd [1999] 9 NWLR 187.
160. T.C. Hopton, “Grundnorm and constitution: the legitimacy of politics” (1978) 24 McGill L.J. 72, 73.
161. Hans Kelsen had said in his General Theory, 11: “If the revolutionaries fail, if the order they have tried to establish remains inefficacious, … their undertaking is interpreted, not as a legal, law-creating act, as the establishment of a constitution, but as an illegal act, as the crime of treason”. It is clear that Kelsen was not referring to success in executing the coup [the revolution] as a necessary condition for avoiding a prosecution for treason in the future. For there not to be a prosecution, not only the execution of the coup must be successful but also the new order must itself be efficacious. In such a case, the law-creating act is legal. This is because there has been a permanent usurpation. It is only when there has been a permanent usurpation that it becomes impossible to prosecute the coup plotters, since there will be a new order. Kelsen clearly saw the failure of a coup not as failure in the execution of the coup-since in this case there is no coup but merely an attempted coup-but as a failure to establish a new order. If this were otherwise, it would then follow that where there is a coup which is successfully executed but which involves the coup plotters relinquishing power voluntarily or involuntarily 16 days after the coup and after having imposed a new constitution on the country, Kelsen would have thought that the people would, regardless of choice, be bound to obey the new constitution. This is not a view that Kelsen would have subscribed to. Indeed, he would have regarded the introduction of the constitution as an ‘illegal law-creating act’. In fact, Kelsen's theory is more suited to revolutions (since the term implies a permanent change) than coup d'etats.
162. Mahmud, General Theory, at 102, has observed that a revolution “envisages a complete metamorphosis that affects both civil society and the entire state; the transformation is so pervasive that legitimacy of the new order is completely autonomous of the processes and institutions of the old order. The content of the legal order and the structure of judicial institutions are typically changed.” It is the permanence of the new order that destroys the old order. Since most western constitutions have their origins in revolutions that resulted in permanent change, it is obvious that this is what Kelsen had in mind.
163. Pure Theory, 13.
164. Pure Theory, 19.
165. Pure Theory, 72.
166. It is important to note that Kelsen's theory has been questioned by many scholars. See Finnis, above at 44.
167. In fact, Kelsen would have described such an exercise of legislative power by the usurpers as an “illegal, law-creating act”. See T. Ogowewo, “The laws of the Maiguards” Tell Newsmagazine, 2 August, 1999, where this author drew attention to the absurdity of applying ail the laws of the usurpers.
168. 20 April, 1970, Unreported. Reprinted in S.O. Gyandoh, Jr. & J. Griffiths, A Sourcebook of the Constitutional Law of Ghana Accra, (1972) 493.
169. A Sourcebook of the Constitutional Law of Ghana 508–509.
170. A Sourcebook of the Constitutional Law of Ghana.
171. (1972) P.L.D. S. Ct. 139.
172. F. Hasan, “A juridical critique of successful treason: a jurisprudential analysis of the constitutionality of a coup d'etat in common law” (1984) 20 Stan. J. Int'l Law 191.
173. (1972)P.L.D. S. Ct. 139, 179.
174. P.L.D. S. Ct., 180.
175. (1975) C.L.R. 558.
176. The Chief Justice of Pakistan in Dosso, the author of the main opinion, had said: “[the coup] having been successful… satisfies the test of efficacy.” “[Therefore, the Laws (Continuance in Force) Order], however transitory or imperfect it may be, is a new legal order and it is in accordance with that Order that the validity of the laws and the correctnesses of judicial decisions has to be determined.” See (1958) P.L.D. S. Ct. 533 at 540. According to Tayyab Mahmud, the Dosso judgment “provided the first express transformation of Kelsen's theories of constitution and revolution into a judicially pronounced common law doctrine of revolutionary legality.”
177. See Mahmud, P.L.D. S. Ct., 49 at 56. Before then, Kelsen's theories were simply theories. It is interesting to note, as Mahmud points out, that this case was decided only 20 days after the coup and the regime that was thereby validated was itself overthrown within a day of the court's pronouncement. If its logic is to be followed, it then means that if soldiers successfully take over the government on one day and relinquish power on the next day, the transitory nature of their laws notwithstanding, such laws should be accorded recognition even when they have left. It is this view that currendy holds sway in Nigeria. Apart from the flawed logic of Dosso, it is important to note, as Tayyab points out at 74, that “the main author of Dosso was involved with drafting the very martial law order which was at issue in the case.”
178. It was partly for this reason and the flawed logic of the opinion that Dosso was rejected when the Pakistani Supreme Court had occasion to pronounce on the validity of military rule-at a time when the usurpers had relinquished power-mjilani v. Government of Punjab (1972) P.L.D. S. Ct. 139, 246–247.
179. This explains cases such as The State v. Dosso, [1958] P.L.D. S. Ct. 533 (Pakistan)
180. Uganda v. Commr of Prisons, ex p. Matow [1966] E.A. L.R. 514 (Uganda)
181. Madzimbamuto v. Lardner-Burke 1968 (2) S.A. 284.
182. See T.O. Elias, “The Nigerian crisis in international law” (1971) 5 Nigerian Law Journal 1.
183. “[S]uch military power is usurped power from the elected representatives to whom the people of Nigeria entrusted power democratically.” Per Uwaifo, J.S.C., in A.G., Federation v. Guardian Newspapers Ltd (1999) 9 NWLR 187, 211. It also usurps the constitutional right of the people to choose their leaders and to be governed in accordance with the constitution.
184. Doing just that in respect of the immunity clause contained in the Constitution of 1979, Fatayi-Williams, CJ.N., stated in Uwaifo v. A.G., Bendel State & Ors (1982) F.S.C. 124 at 145: “At the end of their rule, they (the Military) handed down a constitution wherein they made certain that future administrations would not be given a free hand to dig up skeletons of any legislation with which they were involved for scrutiny. This is the purport of section 6(6)(d) of the 1979 Constitution.”
185. H. Kelsen, “Professor Stone and the pure theory of law” (1965) 17 Stan. L. Rev. 1128, 1134.
186. S. 315 of the Constitution of 1999.
187. Madzimbamuto v. Lardner-Burke, above, 430.
188. (1972)P.L.D. S. Ct. 139, 243.
189. A similar distinction had to be made by Oputa, J., (as he then was) in John Oduah II and anor, v. Akubueze and ors (1970 and 1971) ECSLR 185, in regard to the validity of a writ of summons that had been issued by the High Court of Biafra (a secessionist state which was subsequently defeated). The question that arose after the civil war was whether the writ was a nullity because it was issued by an illegal regime.
190. This was what Oputa, J., said at 188–189
191. [1985] 1 R.C.S. 721, 749 (Canada).
192. Decree No. 32 of 1999.
193. Cap. 59, Laws of the Federation of Nigeria, 1990.
194. See Nwabueze, above, at 1.
195. It could be argued that the members of the constituents assembly were not elected for the purpose, since they were merely elected by the local councils acting as electoral colleges. This argument is, however, not valid, since one of the purposes behind the local government reforms of 1976 was that the local governments would serve as electoral colleges to constitute the constituent assembly. See T. Mamman, The Law and Politics of Constitution-Making in Nigeria, 1862–1989: Issues, Interests and Compromises, London 1998, 173
196. Such as s. 6(6)(d) of the Constitution of 1979.
197. One of such provisions is s. 274(5) and (6) of the Constitution of 1979, which entrenches certain decrees in the Constitution, such as the Land Use Decree. Severing this provision from the Constitution will not have the effect of putting in jeopardy the existing system of land tenure, since severance does not mean that the statute will disappear. It has been held in Enugwu v. Okefi [2000] 3 NWLR 620, that such statutes are not part of the Constitution-they have only been rendered extraordinary by virtue of s. 274(5).
198. S. 4, Part 1 of the Schedule to Decree No. 32 1999.
199. When this author wrote an article in the Nigerian newspaper, The Guardian, titled, “Why General Buhari should be prosecuted”, the editors of that paper (a paper that had been repeatedly persecuted by successive military administrations) changed the title to the less provocative “Back to the 1979 Constitution”. See The Guardian, 23 December, 1999. Rather surprisingly in its editorial of 17 March, 2000, titled “Pinochet's Nemesis”, the paper announced that the Pinochet case has set an important precedent and that the “former dictator must be made an example in the interest of the Chilean people who suffered under his rule in order to enhance the moral health of the world as a whole.” It is hoped that The Guardian will now champion the crusade to ensure the prosecution of those that violated the Nigerian Constitution on 31 December, 1983.
200. This is the argument of those that simply wish to bury their heads in sand. Such persons put too much weight on the assurances of ex-generals and ignore the competition for power by those in the military class who were not “lucky” enough to have had political appointments during military rule. Such soldiers, once in control of strategic positions in the military, have every incentive to stage a coup at a propitious time. This author's article in The Guardian (23 December, 1999), opened thus
201. A day after its publication, the armed forces of Côte d'Ivoire staged a successful coup against the civilian government in power. The military are likely to assume power when they sense that civilian resistance to their putsch is unlikely, such as when a civilian democracy misgoverns or subverts democracy. It is a certainty that once a civilian government misgoverns and time dims the people's memories of the cruelty and incompetence of military rule, the soldiers will be back. Already, a senator was reported in the Nigerian press as calling on the military to return. See “Atiku, military condemn call for coup”, The Guardian, 8 February, 2000.
202. This is a vacuous view. Elections bring bad governments and it is elections-not soldiers-that ought to get rid of bad governments. If the slogan “Never Again” (which is now common in Nigeria) means anything, it must mean that even when Nigeria has the worst civilian government-when democracy is most vulnerable-soldiers must never usurp political power. See, T. Ogowewo, “Never again: An end to coups in Africa” African Topics, No. 30 (Nov.-Dec. 1999) 21. Others have said that civilians can stop coups by mass civil unrest. But it is difficult to envisage the Nigerian people (at their present level of socio-political development) rising up against coup plotters, especially at a time when civilians misgovern. There are a number of reasons for this. First, Nigeria's military have shown a considerable disrespect for human life. In the minds of the citizenry, there is a real possibility that those who resist will be mowed down. Second, the generality of Nigerians-who certainly cannot be described as highly sophisticated political creatures-have too much at stake in any existing status quo to want to sacrifice everything for democracy. Lastly, many of those who were recently elected do not seem to be the likely guardians of Nigeria's new democracy. It will be unrealistic to expect them-many were on the side of the last dictatorship-to act as sentries to ward off constitutional transgressors. Others have said that all that is necessary is that an anti-coup clause should be inserted into the constitution, which would provide that the constitution cannot be suspended. There is a grave fallacy in this argument. Once it is accepted that the military can suspend the supremacy clause of the Constitution, it then follows that they can suspend any such clause.
203. “Forgive me, says Buhari”, PostExpress, 24 July, 1999.
204. In a brazen disregard for the rule of law the President recently misused the prerogative of mercy to grant a presidential pardon to Buhari, the convict. See “Govt pardons ex-speaker, Buhari, and 14 others”, The Guardian, 2 June, 2000.