Published online by Cambridge University Press: 28 July 2009
The article calls for the alteration of the present risk-benefit calculus of would-be coup plotters that may wish to subvert Nigeria's democracy, by arguing for the introduction of an ex ante risk of ex post prosecution for successful usurpations. The prosecution of those that subverted Nigeria's democracy on 31 December, 1983, will alter the present risk-benefit calculus, which is skewed in favour of coup plotting. Since such a prosecution will not succeed if the constitution imposed on Nigeria by its last military rulers continues to be accepted as valid, the article furnishes the legal basis for its judicial annulment and the consequent unearthing of the Constitution of 1979. By demonstrating that the Constitution of 1999 is a sham, it becomes evident that the judiciary has a duty under the Constitution of 1979 to pronounce this document as null and void.
3 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 Nwabueze, B.O., The Presidential Constitution of Nigeria, London, 1982, 4.Google Scholar
4 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 Bakoji, S., “Whither the 1999 Constitution?”, PostExpress, 23 May, 1999.Google Scholar
5 A study of coup plotting in Nigeria would indicate that the risk of failure is very low or even non-existent where the coup against the civilian government is planned by the top brass of the military and at a time when there is public disaffection for the government in power.
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 The term is denned in s. l(a) as “Presidents” and “Heads of State”. The latter is the term by which non-democratic leaders are referred to, although one such military leader (General Babangida) styled himself “President”. A reading of the decree leaves one in no doubt that the decree contemplates civilian Presidents and military Heads of State (and their deputies, such as Vice Presidents (civilian) and Chiefs of General Staff (military): see s. l(b)).
9 S. l(a)(i). Pursuant to s. 3 this amount is subject to review whenever there is an increase in the salary of the serving Head of State.
10 S. 1(1), Part 1 of the Schedule to the Decree.
11 S. 1(2), Part 1 of the Schedule to the Decree.
12 S. 3(1), Part 1 of the Schedule to the Decree.
13 S. 3(2), Part 1 of the Schedule to the Decree.
14 S. 5(1–2), Part 1 of the Schedule to the Decree.
15 S. 5(3), Part 1 of the Schedule to the Decree.
16 Ss. 6–7, Part 1 of the Schedule to the Decree.
17 S. 2(l)(a) and s. 2(3).
18 S. 10, Part 1 of the Schedule to the Decree. The decree goes into great detail in outlining 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. See s. 4, Part 1 of the Schedule to the Decree.
19 There is no reason to think that Generals Buhari, Babangida, the Abacha family and General Abubakar are not already claiming these entitlements.
20 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 there of, 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.”
21 Another dimension of these coups is that they serve to encourage coups elsewhere. When would-be military usurpers observe that the international community has failed to take concrete steps to reverse a coup elsewhere, they are encouraged to proceed with their usurpation.
22 S. 6(6)(d) of the Constitution of 1999 excludes the exercise of judicial powers “from any action or proceedings relating to any existing law made on or after 15 January, 1966, for determining any issue or question as to the competence of any authority or person to make any such law.” By excluding the judicial powers of the courts from such questions, the military aimed to confer immunity on all usurpers from 15 January, 1966 (the date of the first coup) to when the constitution came into force.
23 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.
24 See, Odumosu, O.I., The Nigerian Constitution: History and Development, London, 1963;Google ScholarElias, T.O., Nigeria: the Development of its Laws and Constitution London, 1967;Google ScholarUdoma, U., History and the Lam of the Constitution of Nigeria, Lagos, 1994;Google ScholarNwabueze, B.O., Nigeria's Presidential Constitution: the Second Experiment in Constitutional Democracy, London, 1985;Google ScholarAkande, J.O., The Constitution of the Federal Republic of Nigeria 1979—with annotations, London 1982;Google ScholarNwabueze, B.O., Federalism in Nigeria under the Presidential Constitution, London, 1983),Google ScholarChand, H., Nigerian Constitutional Law, London, 1982Google Scholar and Nwabueze, B.O., A Constitutional History of Nigeria, London, 1982.Google Scholar
25 Such as the division of powers between the federal and state governments and the question of revenue allocation.
26 Nigeria Independence Act, 1960, (8 & 9 Eliz. 2, c. 55).
27 The last one was the May 1960 constitutional conference.
28 The Lugard Constitution (1914–1922), the Clifford Constitution (1922–1946), the Richards Constitution (1946–1950), the Macpherson Constitution (1951–1954), and 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. 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 abandone d 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.
29 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.” See Odumosu, above at 132.
32 One way in which the constitution was undermined and which partly led to the coup of 1966 was the unprecedented rigging in the Western Region in October 1965.
33 Nwabueze, The Presidential Constitution of Nigeria above at 6.
35 Commentators have recognized that the failure of the first republic was partly attributable to the constitution. See Eweluka, D.I.O., “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.Google Scholar
36 For a graphic account, see Achike, O., Groundwork of Military Law and Military Rule in Nigeria, Enugu, 1978, 99–100.Google Scholar
37 The Constitution (Suspension and Modification) Decree No. 1 of 1966. For commentary on the legal changes that resulted from the coup, see Keay, E.A., “Legal and constitutional changes in Nigeria under the military government”  10 J.A.L. 92CrossRefGoogle Scholar and Williams, F.R.A., “Legal development in Nigeria, 1957–67: a practising lawyer's view”  11 J.A.L. 77.CrossRefGoogle Scholar 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. See Udoma, above at 232–233. The idea of promulgating a constitution after a referendum, to give the constitution legitimacy has never been pursued.
38 Constitution of the Federal Republic of Nigeria (Enactment) Act, cap. 62, Laws of the Federation of Nigeria, 1990.
39 About 400 memorand a were received. See Report of the Constitution Drafting Committee, (1976 ) ii.
40 Nwabueze, The Presidential Constitution of Nigeria, above at 2–3.
41 This is seldom recognized. One exception is the incisive comment of Adeniyi Ojebisi in “Behold the long-awaited constitution” PostExpress, 7 May, 1999. He said: “The nation's first autochthonou s 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.
42 On this, see Read, J.S. “The new Constitution of Nigeria 1979: The Washington model?”  23 J.A.L. 131,CrossRefGoogle Scholar 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.
43 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 Council has approved the same subject to suck changes as it has deemed necessary in the public interest and for purposes of fostering the promotion of the welfare of the people of Nigeria”, (emphasis added)
See Constitution of the Federal Republic of Nigeria (Enactment) 1979, 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] mad e 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’.” See Aguda, T.A., 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.Google Scholar
44 See n. 20 above.
45 Constitution (Suspension and Modification) Decree No. 1 of 1984.
46 For instance, Major Kaduna Nzeogwu's coup eventually plunged the country into a civil war and General Buhari's coup denied the country democratic rule for 16 years. During this period, Nigeria was subjected to the worst kind of rule it has ever experienced.
47 The military administration created two parties: the “Social Democratic Party— a little to the left—and the “National Republican Convention Party— “a little to the right”. These categorizations were by the military administration.
48 Constitution of the Federal Republic of Nigeria (Promulgation) Decree, 1989, cap. 63, Laws of the Federation of Nigeria, 1990.
49 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 Agbede, I.O., “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.Google Scholar
50 Constitution of the Federal Republic of Nigeria (Promulgation) Decree, cap. 63, Laws of the Federation of Nigeria, 1990.
51 Constitution (Suspension and Modification) Decree No. 107 of 1993.
52 See Report of the Constitutional Conference Containing the. Draft Constitution (1995).
53 The Constitution of the Federal Republic of Nigeria (Promulgation) Decree, 1999.
54 See the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree, 1999. 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  9 NWLR 187, Karibi-Whyte, J.S.C.,Google Scholar 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 by the Federal Military Government in the exercise of its law making powers it appears would satisfy the constitutional requirement. It may prescribe no procedure as in the instant case.… I find nothing in the provisions of the Constitution of 1979 as amended [by the suspension decree] or in any other decree in support of the contention that die participation of members of the Provisional Ruling Council is a necessary pre-condition in the procedure in the promulgation of a Decree.”
55 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.
56 Nwabueze, The Presidential Constitution of Nigeria, above at 4—5.
58 See n. 20 above.
59 This reasoning is dismissed below.
60 See s. 6(6)(d) of the Constitution of 1999.
61 D. Kanu, “One more constitution” PostExpress, 8 May, 1999.
62 The dynamics of the co-operation between the civilian elite and the military class in Nigeria s i 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 Alao, A., “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).Google Scholar
63 The entry of the military into governance generates conflicts within the military class. Outside governance they are united in their desire to infiltrate governance. Whilst in governance, although they are united in their desire to remain in governance, there are conflicts that centre on the competition for power. Alao has observed: “the military institution was divided in many ways, but it seemed united in its determination to influence national politics. Furthermore, its membership wanted to remain in power at all costs, even in a civilian form after retirement.” See Alao above at 10. It is hardly surprising that retired military officers dominate the present civilian government of General Obasanjo. 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, op. cit., 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. 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.” House of Representatives Debate, 19 August, 1952.
64 J.S. Read, above at 175. As shall be demonstrated below, such a clause is not necessary to achieve this objective.
65 Okonmah, P.D., “Perspectives on human rights violations in Nigeria”, in Africa Legal Aid Quarterly (July-Sept 1998), 11.Google Scholar
66 “Constitutional debate committee recommends adoption of 1979 Constitution” PostExpress, 1 January, 1999.
67 Statement released by the Campaign for Democracy quoted in “Whither the 1999 Constitution?” by Sukuji Bakoji in PostExpress 23 May, 1999.
68 Above n. 66.
69 “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. 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”.
70 Above n. 61.
71 See the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree, 1999.
72 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.
73 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, op.cit., n. 67.
74 See Finnis, J.M., “Revolutions and continuity of law”, in Oxford Essays in Jurisprudence (Ed. Simpson, A.W.B.) (2nd series) Oxford, 1973, 44, 61–65.Google Scholar
77 Cap. 192, Laws of the Federation of Nigeria, 1990.
78 Cap. 77, Laws of the Federation of Nigeria, 1990.
79 This author has attacked the prevailing standing rule elsewhere. See Ogowewo, T.I., “The problem with standing to sue in Nigeria” (1995) 39 J.A.L. 1, and 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).CrossRefGoogle Scholar
80 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 Christ and 3 ors, (2000) 6 S.C. (Part III) 60, may have made the first battle unnecessary. The court in that case accepted this author's thesis, first advanced in this journal (see ibid) that standing to sue is not a constitutional issue. By breaking the link between standing and section 6(6)(b) of the constitution, this case (if understood by the courts and the profession) has solved the problem of standing to sue in Nigeria.
81 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  1 All NLR (Part 1) 1 at 39.Google Scholar
82 See Bello, J.S.C., in Adesanya's case  1 All NLR (Part 1) 1Google Scholar at 39 and the judgment of the Court of Appeal  2 All NLR (Part 1), 1, 18 (which was affirmed by the Supreme Court); see also Bello, J.S.C., in Attorney General of Kaduna State v. Hassan,  2 NWLR 483Google Scholar at 508D, 509A-B, Oputa, J.S.C., in Thomas v. Olufosoye  1 NWLR 669,Google Scholar 691E-F, and Belgore, J.S.C. in Odeneye v. Efunuga  7 NWLR 618,Google Scholar 639E-F. See also Alofoje v. F.H. A.  6 NWLR 559,Google Scholar 567G, Adegbite v. Raji  4 NWLR 478,Google Scholar 488A-C and Amodu v. Obayomi  5 NWLR 503,Google Scholar 512F-513C. In Ejiwunmi v. Costain (WA.) Plc  12 NWLR 149, Musdapher, J.C.A.,Google Scholar 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  5 NWLR 332,Google Scholar 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”. See also In Re Adetona  3 NWLR 481, 488E-F where Tobi, J.C.A.,Google Scholar 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.” See also Attorney General of Anambra State v. Eboh  1 NWLR. 491,Google Scholar 505F-G, 510B, Busariv. Oseni,  4 557Google Scholar at 587–589 and A lbion Const. Ltd v. Rao Investments Ltd  NWLR 583,Google Scholar 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. See, e.g., Kilfco Ltd v. Philipp Holzmann A.G.  3 NWLR 276,Google Scholar 296G, Ogbuehi v. Governor of Imo State  9 NWLR 53,Google Scholar 87B, Keepkr v. Of osia 3 NWLR 415, 429G, Adeyemi v. Olakunri  2 NWLR 500,Google Scholar 507H-508B, Bamidele v. for Local Government  2 NWLR 568,Google Scholar 583H-584A, and Okafor v. Asoh  3 NWLR 35, where the court uses the term “sufficient legal interest".Google Scholar
84 Such as any of the constitutionally guaranteed rights in Chap. IV of the Constitution. They are the right to life, dignity of person, personal liberty, fair hearing, private and family life, freedom of thought, conscience and religion, freedom of expression and the press, peaceful assembly and association, freedom of movement, freedom from discrimination, the right to acquire and own immovable property anywhere in Nigeria and protection from compulsory acquisition of property.
86 Such as the right to sue on a contract.
88 This is far easier to achieve than trying to convince the members of the National Assembly (the Senate and the House of Representatives) and the various State Houses of Assembly to amend the constitution of 1999 pursuant to s. 9 of the constitution.
89 J.O. Akande, above at 2.
91 Eweluka, D.I.O. 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.”Google Scholar
92  U. Ife. L.R. 201.
93 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.
94 Decree No. 28 of 1970.
95 For a study and statistical analysis of the prevalence of ouster clauses in Nigeria, see Fawehinmi, G., “Denial of justice through ouster of court's jurisdiction in Nigeria” in Contemporary Issues in Nigerian Legal System (sic) (ed. Olarinde, E.S. et al. ), Ibadan, 1997, 67.Google Scholar
96 See, for example, The Federal Military Government (Supremacy and Enforcement of Powers (Amendment No. 2) Decree No. 16 of 1994.
97 Hence in A.G., Federation v. Guardian Newspapers Ltd  9 NWLR 187, Karibi-Whyte, J.S.C., stated at 240:Google Scholar
“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 Hamman v. Mobolajl Johnson (1970) All NLR 503, Adenrek Adejumo Nigerian Construction Co. Ltd. v. Cot. Mobolajl Johnson (1974) All NLR (2nd Edn, vol. 1) 26Google Scholar at 30, Adejumo v. Military Governor of Lagos State (1972) 1 All NLR (Pt. 1) 159,Google ScholarUwaifo v. A-G, Bmdel State (1983) 4 NCLR 1;Google ScholarA-G of the Federation v. Sode (1990) 1 NWLR (Pt. 128) 500 at p. 518,Google ScholarObada v. Military Governor, Kawara State (1990) 6 NWLR (Pt. 157) 482,Google ScholarLbiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139,Google ScholarOsadebey v. A.G, Bendel State (1991) 1 NWLR 533.”Google Scholar
98 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.
100 B.O. Nwabueze, Nigeria's Presidential Constitution: The Second Experiment in Constitutional Democracy, above at 1.
101 Okonmah, above at 14.
102 I thank Dr Mads Andenas for drawing my attention to this point.
103 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  9 NWLR 187, 285D.Google Scholar
105 Mahmud, T. in “Jurisprudence of successful treason: coup d'etat & common law” (1994) 27 Cornell Int. Law Journal 49Google Scholar, has shown that a court has four options when confronted with 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 non-justiciable political question. He argues (at 100ff.) that the last option is the most appropriate option to take.
106 A Nigerian colloquialism for street urchins.
107 (1958) P.L.D. S. Ct. 533.
108  E.A. L.R. 514.
110 (1977) P.L.D. S. Ct. 657.
111 Civil Appeal No. 11 of 1980, Seychelles Court of Appeals (7 Commonwealth L. Bulletin 1249 (1981)).
112 (1989) L.R.C. Const. 24.
114 Mahmud, Op. cit., 72–73.
115 The Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree, 1999.
116 See, for example, D.O. Aihie, above at 230–241.
118 Smith, S.A. de, “Constitutional lawyers in revolutionary situations”, (1968) 7 W. Ontario L. Rev. 93, 103.Google Scholar
119 General Theory, 117; Pure Theory, 209.
120 See, for example, O. Achike, above at 125.
121 Uwaifo, J.S.C., in A.G., Federation v. Guardian Newspapers Ltd  9 NWLR 187, 220Google Scholar said: “[I]t 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.”
123 Hopton, T.C., “Grundnorm and constitution: the legitimacy of politics” (1978) 24 McGill L.J. 72, 73.Google Scholar 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. Mahmud, op.cit., 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.
124 Pure Theory, 13.
127 It is important to note that Kelsen's theory has been questioned by many scholars. See Finnis, above at 44.
128 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 all the laws of the usurpers.
129 Indeed, the fact that the military inserted an immunity clause into the constitution suggests that they themselves are aware that a crime was committed and their period in power is not enough to erase the crime.
130 20 April, 1970, Unreported. Reprinted in Gyandoh, S.O. Jr & Griffiths, J., A Sourcebook of the Constitutional Law of Ghana Accra, (1972) 493.Google Scholar
133 (1972) P.L.D. S. Ct. 139.
134 Hasan, F., “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.Google Scholar
135 (1972) P.L.D. S. Ct. 139, 179.
137 This writer agrees with this statement subject to one qualification. Habitual obedience validates a revolution or coup only where it leads to a permanent change. Where the change is permanent (for example a change from a monarchy to permanent republican government or from a republican government to permanent military rule), then the old legal order disappears. It disappears simply because the change is permanent.
138 (1975) C.L.R. 558.
140 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.” See Mahmud, op.cit., 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 currently 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.” 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—in Jilani v. Government of Punjab (1972) P.L.D. S. Ct. 139, 246–47.Google Scholar
141 This explains cases such as The State v. Dosso,  P.L.D. S. Ct. 533 (Pakistan),Google ScholarUganda v. Commr of Prisons, ex p. Matovu  E.A. L.R. 514 (Uganda)Google Scholar and Madzimbamuto v. Lardner-Burke 1968 (2) S.A. 284.Google Scholar See Elias, T.O., “The Nigerian crisis in international law” (1971) 5 Nigerian Law Journal 1.Google Scholar
142 Here there is no judicial duress because the new order has become permanent.
143 Recall that a successful coup is the destruction of one order (in this case a democratic system of government) and the creation of a new order (permanent military rule). Where the state reverts to democratic government, then it follows that the new order of the usurpers (military rule) was not efficacious.
144 “[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.Google Scholar It also usurps the constitutional right of the people to choose their leaders and to be governed in accordance with the constitution.
145 Doing just that in respect of the immunity clause contained in the Constitution of 1979, Fatayi-Williams, C.J.N., stated in Uwaifo v. A.G., Bendel State & Ors (1982) F.S.C. 124 at 145:Google Scholar “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.”
146 H., Kelsen, “Professor Stone and the pure theory of law” (1965) 17 Stan. L. Rev. 1128, 1134.Google Scholar
147 If the courts were to rule otherwise, this would be tantamount to accepting that the soldiers have somehow abrogated the will of the Nigerian people (as opposed to merely impairing the will), as manifested in the 1979 Constitution. This would be the equivalent of accepting that a decree can legislate that the sex of the author of this article has changed from male to female. To use a simple analogy, when an armed robber invades and subsequently leaves one's house, the will of the master of the house reasserts itself. All the instructions of the armed robber, such as forbidding the calling of the police, become a nullity; the armed robber's constitution (which was based on his impairment of the householder's constitution) ceases to apply as soon as he leaves. This is implicit because the householder exercises legislative, executive and judicial powers at once. In the case of a country where there is a separation of powers, there is a need for a judicial pronouncement annulling the instructions of the usurper of constitutional authority. Therefore, it is the duty of Nigeria's courts to annul the instructions of the military.
148 S. 315 of the Constitution of 1999.
149 Madzimbamuto v. Lardner-Burke, above, 430.
150 (1972) P.L.D. S. Ct. 139, 243.
151 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,Google Scholar 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. This was what Oputa, J., said at 188–189:
“During the civil war and in spite of the civil war it was necessary to maintain law and order even in areas controlled by the illegal regime.… A distinction ought to be drawn between acts, even of an illegal regime, necessary for the preservation of peace and good order among citizens and acts which aid and foster the rebellion.”
152 If such decrees were not de-legitimized, it would logically follow that the military can write a constitution for Nigeria and Nigerians would have to apply it. This would be akin to the householder obeying the words of an armed robber even after the armed robber has departed!
154 It may, however, be argued that if all military decrees are to be subject to the presumption of non-recognition, this will then mean that the electoral decree—under which elections were held in 1999—will be affected and, therefore, the legality of the elections can be challenged on this ground. The response to this argument is that the electoral decree will be saved by the rule of displacement, since it paved the way for the restoration of the will of the people. Put differently, it would be unjust and inconvenient not to recognize the electoral decree.
155 Decree No. 32 of 1999.
156 Cap. 59, Laws of the Federation of Nigeria, 1990.
157 S. 315. A military decree, as an “existing law”, will be invalidated only if it can be demonstrated that it conflicts with the constitution given to Nigeria by the military.
158 One who strives for theoretical purity may argue that when the Attorney General seeks a declaratory order, the electoral decree under which the President was appointed is at that point subject to the presumption of non-recognition and that accordingly, until the presumption is displaced, the position of the President and the Attorney General are invalid; and if this is so, the person purporting to be the Attorney General can hardly come to the court to ask for the presumption to be displaced. The argument can be countered by arguing that all governmental positions can be validated under the doctrine of necessity. This would mean that the Attorney General's position will be automatically validated and he should then be able to apply for declaratory relief invalidating those decrees in respect of which the presumption ought not to be displaced. Since the doctrine of necessity only validates that which is necessary, it would operate to prevent a legal vacuum but will not operate to validate or further the usurpation.
159 See Nwabueze, above, at 1.
160 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 Mamman, T., The Law and Politics of Constitution-Making in Nigeria, 1862–1989: Issues, Interests and Compromises, London 1998, 173Google Scholar
161 Such as s. 6(6)(d) of the Constitution of 1979.
162 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  3 NWLR 620,Google Scholar that such statutes are not part of the Constitution—they have only been rendered extraordinary by virtue of s. 274(5).
163 This appears to account for the recent coups in Pakistan and Côte d'Ivoire.
164 S. 4, Part 1 of the Schedule to Decree No. 32 1999.
165 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.
166 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:
“Is it outside the bounds of possibility that our democracy may at some point in the future be imperilled by a military coup? The recent Pakistani coup—after over 10 years of civilian rule serves to remind us that once the military have tasted political power, it is a formidable task to make them relinquish permanently the thought of re-tasting power.”
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.
167 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, Ogowewo, T., “Never again: An end to coups in Africa” African Topics, No. 30 (Nov.–Dec. 1999) 21.Google Scholar 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.
168 This argument is without merit. The risk is non-existent where the constitutional transgressors no longer have a following in the military—which will be the case when they have retired from the military. In fact, such prosecutions will only strengthen democracy by protecting it from future attack. This is a certain gain. It makes sense to discount a non-existent or tenuous risk when considering this certain gain. Therefore, the prosecution of those who overthrew the government (and those that aided and abetted this offence with their endless transition programmes) carries no risk to Nigeria's democracy, but it certainly has the clear benefit of protecting the present and future civilian governments from the menace of military adventurists. The current trial of General Ishaya Rizi Bamaiyi (Rtd) (the former Chief of Army Staff) for the attempted murder of a newspaper publisher proves this.
169 To appreciate the weakness of this argument it is important to bear in mind that very few military governments in Nigeria (even under the present rule of non-deterrence) have relinquished power to a civilian democracy voluntarily (two out of eight to be precise). The argument assumes that there will always be coups (which we must learn to live with) and the prosecution of coup plotters will simply mean that they will not leave office. So the argument implicitly subscribes to the view that it is preferable to have a continuous cycle of coups and a very low handover rate, rather than a rule of deterrence, which has a chance of bringing this cycle to an end. This must be a gloomy prospect. A rule of deterrence makes future coups unlikely.
170 True, it will be a travesty if those who have looted Nigeria go unpunished. But those who made such unaccountable looting possible must first be punished.
171 The argument here is that the prosecution would not stop with the actual coup plotters and those that aided and abetted it; that it would extend to those persons who served in the military government down to the last military government which handed power to the civilians. The trick with this argument is that it attempts to stretch the application of the rule of deterrence to such an extreme extent that it begins to lose touch with the sensibilities of the people. When this happens, the entire project loses credibility. It is, therefore, necessary to confront this argument. The people who should be prosecuted for treasonabl e felony are not those who served in a military government, but those who actively planned a coup to subvert democracy. Others who should be prosecuted will include those who aided and abetted this offence through endless transition programmes. This would not include those who instituted a return to civilian rule. Another variant of the argument is that if General Buhari is prosecuted, then General Gowon (Nigeria's surviving military leader who assumed power after the first democracy was overthrown on 15 January, 1966) should be prosecuted also. The answer to this is as follows. First, since those to be prosecuted should be those who instigated a coup against a civilian democracy and those who aided and abetted this offence, such a prosecution is not possible, since Gowon was not parry to the first coup—this was by Major Nzeogwu and his fellow majors, who are now beyond the reach of earthly justice. It is, however, possible to make a case against Gowon for aiding and abetting the offence by instituting a long transition programme which he even extended. This will have a salutary effect, in that if there is a coup against a democracy and this is followed by a counter-coup, those behind the counter-coup should have a duty to immediately hand over power to the surviving arm of the civilian government (such as the judiciary, which never ceases to function even in a military regime). This surviving arm will then have the constitutional duty to restore a full democratic government. There is no reason why the military should institute their own transition programme under such circumstances. I wish to thank John Ofutu for drawing my attention to this very important point.
172 To accept this argument is to accept that the military can intervene whenever there is a bad civilian government. There is no part of the 1979 Constitution that gives the military this function. This is the function of the electorate. Therefore, any alleged public acclamation in 1983 does not validate the offence committed by the soldiers. What the vanguards of civil society ought to do is to make it easy to expel bad civilian governments and not support an unfounded rule that allows the soldiers to come back when there is a bad civilian government. Nigeria's experience of military rule suggests that the soldiers inflict more damage on the country than the elected politicians. Of course, if a civilian government turns out to be undemocratic by thwarting the constitution, then a coup against such a government, if carried out for the express purpose of restoring constitutional government, will not be treason if power is handed over immediately to the legitimate civilian government. Here, it is the civilian government that subverted the constitution, not the group that restored democracy.
173 “Forgive me, says Buhari”, PostExpress, 24 July, 1999.
174 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.