THE CONSTITUTION, THE COURTS AND THE RULE OF LAW

1. INTRODUCTION

Human nature is very peculiar

When any thing, be it material or abstract is available in sufficient quantities, it is

taken for granted and not much is heard written or said about it. But immediately

there is a short supply or scarcity of that commodity, it begins to receive

overwhelming attention in all the media, various gatherings and in social and

political circles. So has it been with petroleum products, newspapers, and in the

last 10 years, Human Rights, the Rule of Law and Democracy. The last three

civil rights have been in such supply that they have become the focus of thought,

writings, discussions and indeed actions, ranging from demonstrations, strikes

and in the case of the June 12 1993 election, a self-declaration as president by

the unannounced winner of that election, Chief M.K.O. Abiola.

Thus, the loss or denial of a right, not only enhances the value of that right but

also creates a greater awareness of the quality, importance and role of such a

right in our lives and in the polity.

In examining and re-examining a particular concept, we are in that process

establishing its place in our social and political existence and its status in our

legal system. If therefore such exercises do not bring forth immediate rewards,

their long term impact in the totality of our collective consciousness and social-

political system is assured. This is why I am never inhibited from repeated

examination of the broad question of the Rule of Law in Nigeria. We may be

deprived of it now, but we must never be tired of proclaiming it and re-assuring

our rights to it, thereby restoring it and building up its corpus by a process of

accretion.

For it is of course obvious that the Rule of Law in the broadest sense has been in

a state of grave crisis since 31st December 1983, when the military overthrew the

Government of the second Republic, which lasted from 1979 to 1983.

In that broad sense, the Rule of Law is an all-embracing concept denoting the full

complement of our civil and democratic rights. It is no longer limited to Dicey’s

narrow definition of equality before the law, trial under ordinary laws in ordinary

Courts by one’s peers. No. Today, the term “Rule of Law” denotes the minimum

condition of existence in a free, open civilized and democratic society. Thus in

addition to the classic Diceyian meaning, it also encompasses the following:

1. The Supremacy of the Constitution

2. Fundamental Rights generally

3. Independence of the Judiciary

4. Freedom and Liberty under the Law

5. Democratic values; Freedom of speech, Thought, Association, the Right to

protest, Assemble, form Associations and Political Parties, establish a

Free press; the Right of self-determination of all Ethnic Groups or

Nationalities in Nigeria, and of course the Right to a peaceful and

democratic change of government at regular intervals.

The essence and core of the Rule of Law was accurately brought out in the

following passage in a lecture given by Justice Oputa (then of the Supreme

Court) in 1989.

“The Rule of Law is thus a shield and a fortress against tyranny and

oppression. It is the defender and custodian of individual rights and

liberties, an asylum and a comfort to the oppressed a guarantee of

hope for the innocent, a chilling terror to the in malignant and vile,

an encouragement to good behaviour by government and the

governed. Herein lies the importance and practical import of the

Rule of Law.”1

As we have already noted above, the Rule of Law is in a state of grave crisis in

this country and this crisis is a direct product of military rule.

2. IMPACT OF MILITARY RULE

The impact of Military Rule or Regimes on immemorial and established Rights to

Liberty and the Rule of Law, are painfully obvious. When a military junta

overthrows a civilian government, it passes laws which implicitly or explicitly

declares that its source of power is internal to itself and that its authority is not

derived from any source external to itself. They then purport to suspend not only

portions of the Constitution relating to the executive and legislative arms of

government which they have overthrown, but also fundamental provisions of the

Constitution on Human Rights and the Rule of Law. Above all, they also declare

their Decrees to be superior to the Constitution, and where such Decrees are in

conflict with the Constitution, they declare that their Decrees will prevail over the

relevant constitutional provisions. Thus numerous Decrees are declared

unchallengeable in our Courts of Law.

It is not possible to appreciate the staggering and monumental blows this

constitutes to our system of the administration of justice, until one has access to

the statistics of the ouster Laws. As a result of his research, Chief Gani

Fawehinmi has been able to unearth the following most disturbing information on

ouster Laws and Clauses from 1961 to 1991. He found that in that period, our

1 Keynote Address on the theme “Crisis in the Rule of Law” to the 1989 Annual General Bar Conference,

Lagos, 28th

August 1989

various government’s promulgated 164 Laws ousting the jurisdiction of our

Courts in various spheres.2

Out of the 164, Balewa’s civilian Regime was responsible for 15, whilst the

various Military Regimes were responsible for the remaining 49. The Shagari

Regime did not pass any ouster Law. The Abacha Regime has the largest

number, in terms of number per year in office; 28 as at December 1994, i.e.

within a year. The number of Decrees with ouster clauses, per Military Junta up

till December 1994 are as follows:

Ironsi January to July 15

Gowon August 1966 to July 1975 49

Mohammed/Obasanjo July to September 1979 45

Buhari December 1983 to August 18

Babangida August 1985 to July 1993 34

Abacha November 1993 – December 1994 28

This gives the Abacha Regime the highest number per year of all the military

Regimes.

This totalitarian picture of the pervasive emasculation of the Judiciary and the

corresponding civil rights of the citizen under military Regimes is painted vividly

by the following information provided by Nwabueze in his famous 1989 Guardian

Lecture:

“The absolute power is, expectedly being exercised automatically.

In the first era of Military rule, 15 January, 1966 to 30 September

1979 there were 50 Decrees and 14 between 1 January, 1984 and

15 May, 1985 which explicitly made the constitutional guarantee of

fundamental rights inapplicable in relation to any matter arising

under those Decrees, and no Court is to enquire into the question

2 Fawehinmi Denial for Justice Through Ouster of Courts’ Jurisdiction in Nigeria pp. 11 – 12.

whether a guaranteed right has been or is being or will be

contravened by anything done or purported to be done thereunder.

Thus, under individual Decrees of the Military government,

thousands of people have been detained without trial, political

parties, tribal unions and some other similar associations were

dissolved or banned, many trade unions proscribed, the publication

or circulation of some newspapers, or magazines prohibited,

criticism of government and political discussion generally severally

restricted, public assemblies and processions proscribed, and

property or assets of some people expropriated or encroached

upon.

From January 1966 to September 1979, there have been 39 ad

hominem Decrees (Edicts of State Government excluded). Of the

627 Decrees enacted between 16 January, 1966 and 20th

September, 1979, 295 or nearly 50 per cent had retrospective

effect, with 52 creating criminal offences. 27 of the 49 or 55 per

cent of the Decrees enacted between January 1, 1984 and May 15,

1985 had retrospective effect, with 11 or 22.5 per cent creating

criminal offences. The period of retroactively was mostly less than

a year, but in many cases it was more than a year, 8 years being

the longest followed by 61/2 and 5 years.

In the executive field, while the Military have tried to maintain the

semblance of the Rule of Law by first going through the motion of

enacting laws as a basis for its executive action, the principle that

an executive act of government must keep strictly within the four

corners of its enabling law or else be open to challenge in a Court

of Law has all but been jettisoned. The principle is indeed cardinal

and central to the Rule of Law, and as we have seen, it was

maintained in the face of all the oppression under colonial

absolutism.

Between January 1966 and September 1979 and January 1984

and May 1985, there had been some 64 Decrees which conferred

unquestionability on executive acts done or purported to be done

under their provisions. A variety of forms and combination of forms

were used to achieve this, the aim being to ensure that all

loopholes for the Court’s intervention are effectively plugged.”3

In his conclusion on ouster Clauses, after his prodigious assemblage of ouster

statistics, Fawehinmi has this to say”

There is no substitute for the Rule of Law where each department

of government is allowed to function without a fundamental

interference by any of the 3 in the performance of the others’

fundamental duties and functions. In most instances, the whole

concept of ouster in Nigeria is to protect the illegalities, the

misgovernance, the corruption, the general misdeeds including

immoralities of those who hold political and executive powers

particularly in a Military dictatorship.

I have never found one single ouster of Court’s jurisdiction in any

provision of the Nigerian Law which is aimed at protecting the

interest and rights of the generality of the people. When leaders

commit crimes, their criminal proclivity is shielded from the glare of

judicial investigation. When the masses or the common people

commit crimes, they are dragged to Court with the age-worm cliché,

“the law must take its course” but the cause and course of the law

are obstructed by ouster provisions when leaders commit crimes”4

3 Nawbueze, “Our Match to Constitutional Democracy” published in Law & Practice Special Edition,

August 1989, pp. 10 – 11. Se also Nwabueze Military Rule and Constitutionalism Spectrum Books, 1992,

pp. 14; 20 - 21 4 Fawehinmi, Op. Cit.

The gravity of the situation is not fully revealed by the sheer number of Ouster

Decrees. The contents of some of these Decrees not only render the Judiciary

impotent, the Rule of Law prostrate and the citizenry hopeless and helpless, but

as already noted, they turn the Military Regime into Hobbes’ dreaded Leviathan.

A brief examination of just two of the hundreds of Decrees would be sufficiently

illustrative.

Thus section 1 of Decree No. 1 of 1984 states as follows:-

“(1) The provisions of the Constitution of the Federal Republic of

Nigeria 1979 mentioned in Schedule 1 to this Decree are hereby

suspended.

(2) Subject to this and any other Decree, the provisions of the said

constitution which are not suspended by subsection (1) above shall

have effect subject to the modifications specified in schedule 2 of

this Decree.”

Amongst the provisions suspended in section 1 on the Supremacy of the

Constitution, this is made subject to any Decree. Section 2 of Decree No. 1, of

1984, gives the Federal Military Government, the power to make laws for the

peace order and good government of Nigeria or any part thereof with respect to

any matter whatsoever. In other words, they have an unlimited power to legislate

on any matter for any part of Nigeria. This is legislative absolution which flies in

the face of our constitutional and legal history. Finally, by section 5 of the same

Decree, “No question as to the validity of this or any other Decree or of any Edict

shall be entertained in any Court of Law in Nigeria.”

As if to further confirm that a Military Government is even more awesome and

totalitarian than Hobbes’ Leviathan, the Military brought in Decree No. 13 of

1984, which is the favorite joker card of the functionaries of all military regimes.

The title of the Decree betrays its content. It is entitled, “The Federal Military

Government (Supremacy of Powers) Decree.”

After stating that the Military revolution which took place on 31st December 1983

effectively abrogated the whole pre-existing legal order and that it brought about

an abrupt political change not within the contemplation of the 1979 Constitution,

the Decree claimed that the Federal Military Government had absolute powers to

make laws for peace, order and good government of Nigeria with respect to any

matter whatsoever.

Having fully mobilized itself for the onslaught against the freedom of Nigerians

and the Rule of Law, the Military Government landed thus:

(i) No civil proceedings shall be or be instituted in any court for or on account

of or in respect of any act, matter or thing done or purported to be under or

pursuant to any Decree or Edict and if any such proceedings are instituted

before or, on or after the commencement of this Decree, the proceedings

shall abate, be discharged and made void.

(ii) The question whether any provision of chapter iv of the Constitution

(Human Rights) has been is being or would be contravened by any thing

done or proposed to be done in pursuance of any Decree or an Edict shall

not be enquired into in any Court of Law, and, accordingly, no provision of

the Constitution shall apply in respect of any such question.

As if this state of self-proclaimed military absolutism was not sufficiently

oppressive, the Abacha Government re-promulgated its identical twin brother on

24the August 1994, but made it retroactive from 18 November 1993. The

relevant provision declares thus:

WHEREAS the military revolution which took lace on 17th

November, 1993 effectively abrogated the whole pre-existing legal

order in Nigeria except what has been preserved under the

Constitution (Suspension and Modification) Decree No. 107 of

1993.

AND WHEREAS the military revolution aforesaid involved an

abrupt political change which was not within contemplation of the

Constitution of the Federal Republic of Nigeria, 1979.

AND WHEREAS BY THE Constitution (Suspension and

Modification) Decree No. 107 aforesaid there was established a

new government known as the “Federal Military Government” with

absolute powers to make laws for the peace, order and good

government of Nigeria or any part thereof with respect to any

matter whatsoever and, in exercise of the said powers, the said

Federal Military Government permitted certain provisions of the

Constitution of the Federal Republic of Nigeria, 1979 to remain in

operation.

AND WHEREAS by section 5 of the said Constitution (Suspension

and Modification) Decree, no question as to the validity of any

Decree or any Edict (in so far as by section thereof the provisions

of the Edict are not inconsistent with the provision of a Decree)

shall be entertained by any Court of Law in Nigeria.

AND WHEREAS by section (3) of the said Constitution

(Suspension and Modification) Decree the provisions of a Decree

shall prevail over those of the unsuspended provisions of the said

1979 Constitution:

1-(1) The preamble here is hereby affirmed and declared as

forming part of this Decree.”

This is followed by provisions identical to paragraphs (i) and (ii) of Decree 13 if

1984 above, barring any action challenging any act or purported act of the

Military Government, and suspending the Fundamental Rights of Nigerians.

These Decrees are clearly contrary to section 1(3) of the 1979 Constitution which

provides for example that “if any 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.” These ouster clauses in Military Decrees are also

contrary to section 4(8) of the 1979 Constitution which stated” …the National

Assembly or a House of Assembly shall not enact any law that ousts or purports

to oust the jurisdiction of a Court of Law or of a Judicial Tribunal established by

law” Perhaps the most significant provision of the Constitution, which is the

embodiment of our collective will as Nigerians, living together under one flag, as

one Nation governed by the Rule of Law, and maintaining our rights as a free

people in voluntary association in the political entity called Nigeria, is section

14(2)(9) of the 1979 Constitution which states that “sovereignty belongs to the

people of Nigeria from whom government through this Constitution derives all its

power and authority.”

The ruinous and disastrous effect of military of rule on constitutionality and Rule

of Law in Nigeria has been most painstaking documented and analyzed by

Professor Nawbueze in his book Military Rule and Constitutionalism.5

Areas affected include the Rule of Law (in the narrow sense) personal liberty,

right to private property, right to self-government, restrictions on formation of

associations, independence of the Judiciary, the right to self-government, etc.

5 Spectrum Books 1992, pp. 18 – 58.

Military government has, according to him resulted in an erosion of the Rule of

Law by reason, first, of the supremacy and absolutism of military legislation, i.e.,

the fact, that law making by the military government is limited neither by a

supreme constitution which confines the permissible content and form of

legislation and procedure for making it, nor, as in Britain, by conventional rules

sanctioned by tradition and the force of public opinion. “The erosion of the Rule

of Law resulting from the legislative absolutism of the Military Government is

attested by the spate of ad hominen and expost facto decrees ad other military

legislation repressive of individual liberty.”6

The despotic and totalitarian nature of military rule was well illustrated by the

release in the week commencing on Monday 5th September 1994, of 8 new

Decrees, all in one way or the other, purporting to sweep away a substantial

portion of our Constitutional, and Human Rights and the Rule of Law. This was

one facet of the Military Government’s response to the political crisis arising from

its refusal to restore the result of the June 12 1993 process and terminate military

rule. By Decrees No. 6, 7 and 8, the Concord, Punch and Guardian Groups of

Newspapers were proscribed and their premises ordered sealed. Thus the right

of free speech, freedom of expression, freedom to hold opinions, to receive and

impact ideas and information including the right to establish and operate a free

press, as provided for in section 36 of the 1979 Constitution were trampled

underfoot.

By Decrees 9 and 10 of 1994, the National Executive Bodies of the Nigerian

Labour Congress, the Petroleum and Natural Gas Association of Senior Staff of

Nigeria (PENGASSIN) and the National Union of Petroleum and Natural Gas

Workers, (NUPENG) were dissolved, and the Military Government purported to

give itself the power to appoint Administrators to run the three unions in place of

Democratically Elected Leaders. Decree 11, amends the State Security

(Detention of Persons) Decree (No. 2 of 1984) by empowering the Inspector-

General of Police to detain Nigerian Citizens without any charge or trial, in

6 Military Rule and Constitutionalism p. 19.

addition to the chief of General Staff who was already empowered to do this

under Decree 2 of 1984.

As we stated above, Decree 12, of 1984 re-enacts Decree 13 of 1984 which

establishes the supremacy and superiority of the Federal Military Government

and its Decrees over all Laws and institutions in Nigeria, including our

Constitution. This Decree prohibits anyone from challenging before any Court of

Law, anything done or purported to be done by this Government. The Courts are

themselves precluded from entertaining such a suit. The Decree also purports to

suspend he fundamental Rights of all Nigerians. Not surprisingly, in the very first

test of its provisions before a Court, the Court, presided over by Mrs. Justice

Rosaline Ukeje, of the Federal High Court, struck out a suit, brought by the

executive Council of the Nigeria Labour Congress challenging the validity of the

Decree (which purports to dissolve a democratically elected body, which it

replaces with its own nominees) on the ground she no longer had jurisdiction to

entertain such cases.

Finally, by Decree No. 5 of 1994, the items on the Exclusive list of our

Constitution were amended, and Treason, Treasonable felony and Concealment

of Treason, are then included. The motive here is to bring these offenses within

the Jurisdiction of the Federal High Court, and thus by Legislation, destroy the

basis of Chief M.K.O. Abiola’s objection to the Government. More damming still,

is the retroactive effect of the Decree. Though promulgated in the first week of

September 1994, it was made retroactive with effect from 30th May, 1994 i.e.,

before the date of the alleged offence with was12 June 1994. This Decree alone,

is guilty of two offenses against the Rule of Law. It is an adhominen Law i.e., it is

directed against a person and is lacking in the generality required of legislation.

Secondly, it is made retroactive.

Decree No. 14 of 1994, entitled “State Security (Detention of persons)

(Amendment) Decree, “(No. 14 of 1994) belongs to the same class as the one

just listed. It provides as follows:

“Notwithstanding anything in the contrary contained in the Constitution of

the Federal Republic of Nigeria, as amended, or any other enactment of

law or law, no writ of Habeas corpus or Order of prerogative, or Order of

any Court shall be issued for the production of any person detained under

that Decree.” (i.e. Decree 2 of 1984)

The enactment of t his Decree constitutes an attempt to destroy the three most

basic provisions of our Human Rights preserved and protected by Chapter 4 of

the 1979 Constitution. These are: (i) The rights to life (S. 30), (ii) The

prohibition of inhuman and degrading treatment, (S. 31) and (iii) The right to

personal liberty (S. 32). The practical effect of this Decree is that any person can

be Kidnapped b y any of our numerous security agencies, and bundled away for

ever without any questions being asked in any Court of Law. It means a

detainee can be tortured to death in seclusion without the supervising

intervention of the Court. For in the absence of Judicial power to order the

production of such a person in Court to enable the Judge to verify (i) whether the

victim is still alive, and if so (ii) in what physical or mental condition, he is in the

detainee becomes the private property of state security agents and government

officials who can be disposed of at will. Here lies the danger of Decree 14 of

1994.

However, our main concern in this lecture series, is not the documentation and

analysis of the impact of military absolutism, but the more fundamental issue of

questioning the basis of the assertion that military Decrees are superior to all

other norms in our legal hierarchy, including our Constitution! In other words,

what, which or who is the sovereign authority in the Nigerian Legal Order?

3. THE SOVEREIGN AUTHORITY IN THE NIGERIAN LEGAL ORDER

The question of the identification of the Sovereign Authority or Grundnorm in

Nigerian is crucial, if we are to determine the validity of the Legislative and

Executive actions which have completely emasculated the Rule of Law and our

Human Rights. If the grundnorm is the overriding norm in the Nigerian Legal

Order, from which all the other norms derive their existence and validity, it would

follow that the rules and principles, all of which constitute the Rule of Law, are

not only derived from the grundnorm, but can also be modified, suspended or

even abrogated by the grundnorm itself. Therefore the n ext question is, whither

resides the grundnorm in the Nigerian Legal Systems which has the awesome

power, to abrogate the fundamental rights which Nigerians as a whole have

acquired and consolidated over a period of about one hundred and thirty years?

For only if we can answer this question, can we determine whether or not there is

invested in any entity, the power to suspend fundamental rights, to oust the

constitutionally granted jurisdiction of the Courts either particularly or generally,

or to detain Nigerians without trial and without the right to challenge such

detention in a Court of Law. These are all, but specific forms of the genre, the

Rule of Law. If this fundamental question is avoided or evaded, then we may

have well embarked on a hollow exercise. For if these rights can be taken away

lightly and frivolously, we might as well not have them at all much less discuss

them.

I must assume that we are all familiar with the major theoretical work of Hans

Kelson which has given rise to the controversy as to whether there is a

grundnorm and if so where it lies in each legal system. Within the Nigerian

context alone, no less than 4 sources have been proposed as being the source

of our grundnorm. These are (I) The Judiciary, (II) The Legislature, (III) The

Constitution and (IV) The Military (S.M.C. or A.F.R.C. or PRC) furing a Military

Regime.

(i) THE JUDICIARY

Perhaps the greatest exponent of the view that the Nigerian grundnorm is located

in the Judiciary is Mr. Justice Kayode Eso.7 He first expounded this theory in the

first Idigbe memorial lecture entitled “Is there a Nigerian Grundnorm”? given at

7 School, Jurist extra-ordinary and former Justice of the Nigerian Supreme Court.

the University of Benin on the 31st of January 1985. The learned Justice first

demonstrated how the grundnorm could be traced thus:-

“Probably, one should come back to earth and just give a purely

simplistic and local example. If a person imports foreign currency

illegally into this country, he would be arrested and tried. And if he

is found guilty? He goes to jail. Now, upon whose authority is he

arrested? The answer is probably: On the authority of the police.

Upon whose authority is he tried? On the authority of the

prosecution be he the Attorney-General, his staff or the police.

Upon whose authority is he found guilty and put in jail? On the

authority of a Judex. What is the authority of the Judge for his

action? Most probably a Decree. What gave that Decree its

authority? The Supreme Military Council of course. What is the

authority of the Supreme Military Council? Is it some Judicial

precedent or the Judge’s own interpretation of the governing

Decree or is it merely the revolutionary authority, now so well

expressed, though not so much defined, behind the Supreme

Military Council? All these questions are pertinent and will have to

feature in our present enquiry.”8

Adopting a historical approach involving a shifting of the grundnorm between the

Judiciary and the Military the learned lecturer declared as follows after a

consideration of Lakami & Another v. The Attorney-General (West) and Another9

“This judgment was delivered in 24 April, 1970, and that must have

been the grandest day for the judiciary, to whom by that judgment,

indeed by that pronouncement even the guns were sublimated to

the interpretative jurisdiction of the Court? No doubt, if it was never

8 “Is there a Nigerian Grundnorm”? pp. 36-37

9 (1971) 1 U.I.L.R. 201

there before that judgment, there arrived a Nigerian Grundnorm

established firmly in the judiciary, the fons et origo of all norms that

flows there from”

As the Lecturer himself noted, this glory was short lived. Decree 28 (1970) took

away or purported to take away the grundnorm from the Judiciary, if it was ever

there in the first place.

The Eso theory has been attacked amongst other things for including the

possibility of a shifting grundnorm. Perhaps the fiercest of these attacks have

come from the well known Constitutional Law expert, Professor Abiola Ojo in the

following words:

“With all due respect, it is difficult it accept this idea of a shifting

grundnorm within the same legal order, be it civilian or a military

administration. The learned Justice was right that each organ of

government has a distinctive function under the Constitution. We

are even prepared to accept that in the performance of these

functions, within the Constitution, they are sovereign. Judicial

decisions, even of the Supreme Court, are mere norms in the

hierarchy of norms. They cannot be the grundnorm therefore must

have no rule behind it. It is the fons et origo – the norm, one which

Salmond regarded so fundamental as to be termed the legal

sources”

… … …

“The Judiciary, even the Supreme Court, should appreciate its

constitutional limitation, even though its role as an important source

of norms is vital. It is a creature of the Constitution with specific

powers given to it by the hierarchy of norms. While it is possible for

the Judiciary to be abolished by the Constitution, it is not legally

possible for the Judiciary to abolish a valid Constitution.”10

Criticism of the Eso theory has also come from another famous Jurist, Dr.

Akinola Aguda who in a paper read at the 1989 annual conference of the

Nigerian Bar Association, declared that “Eso appears to have a concept of the

term “grundnorm” some how different from that of Kelson, and further “With all

due respect it is extremely difficulty to appreciate how any Judiciary can turn

itself into the grundnorm of a legal order, unless of course “grundnorm” is given a

meaning quite different from what Kelson gives to it, …11

However, Justice Eso has remained largely unrepentant and has re-affirmed his

earlier view, though with a few concessions, on subsequent occasions. Thus in a

paper presented at the 1988 All Nigerian Judges’ Conference at Abuja, Justice

Eso still has this to say:

“For the court is the heart of the Nation, it is the nerve centre.

Indeed nothing that had been created by the Constitution is like it.

It is like the Constitution creating its own master by permitting the

Court an interpretative jurisdiction. Yet the Court is legally, and it

must act factually, as the servant of the Constitution”.12

Perhaps the explanation of the riddle which this passage appears to pose is that

whilst the Constitution is the master of the Court, it’s creature, the Court is

defacto more powerful than the Constitution, since on the long run, the

Constitution is what the Courts, particularly the Supreme Court says it is … But

the learned Justice was careful to state that “the Court is not above the law. It is

subject to the Constitution. But the Constitution has to be interpreted by the

10

Abiola Ojo Constitutional and Military Rule in Nigeria (1987) pp. 109 – 110. 11

Aguda, “The Nigerian Grundnorm – A Critical Appraisal” – paper read at the 1989 Conference of the

Nigerian Bar Association. See pp. 14 -16. 12

“The Court as the Guardian of the Constitution” – paper presented at the All Judges Conference, Abuja,

September 1988, p. 18.

Court”.13 Having weighed the implications of these apparently conflicting forces,

Justice Eso accepted a compromise, thus: “And if we may again refer to what

the grundnorm is, considering this interpretative jurisdiction which the Judges of

the second Republic were very conscious of, we would with respect suggest a

compromise, that the simple way out is to acknowledge the Grundnorm of the

Nation as “the Constitution of the country as interpreted by the Court”14

There has thus been some shift in the learned Jurist’s position. The Grundnorm

is not the Court simpliciter, but the Constitution as interpreted by the Court – a

sort of diarchy, with the Constitution as the figure head and the Court as the real

power behind it. Indeed the learned Justice confirmed this position in another

paper. This time entitled “The Nigerian Grundnorm” – A Critical Appraisal” also

read at the 1989 Conference of the Nigerian Bar Association where he stated

that “The interpretative jurisdiction of the Court must feature largely in any search

for the Grundnorm, especially in a society such as ours, which was unknown to

Hans Kelson, the protagonist of the Grundnorm theory.”15

In his latest published thinking on the subject matter,16 Justice Eso has offered

some very innovative ideas on the matter, which can be termed, the theory of the

shifting Grundnorm. After a thorough review of the views of Kelson, Dias and

Harris, the learned writer concludes that there is no reason why there need be

only one Grundnorm in a legal system. It must be accepted to shift from one

variant to the other; it could be discernible in multiple organs. Thus Eso identifies

three grundnorms, during the military regime, namely, the Ruling Body by

whatever name called, the head of the Regime and the Court. The status of the

head of a military regime as a grundnorm was established when in January 1989,

President Babangida dissolved the Armed Forces Ruling Council and

reconstituted it single handedly. Under a civilian regime, Eso identifies the

consent or will of the people and the Court “because of the ultimate constitutional

13

“The Court as the Guardian of the Constitution” p. 18. 14

Ibid, p. 20. 15

At p. 8 of the cyclostyled paper. 16

“The uncertainty ins the movement of the Nigerian Grundnorm” in Nigerian Essays in Jurisprudence,

Edited by T.O.Alias and M.T. Jegede. 1993, p. 60 at 73.

norm that coercive acts ought to be applied in accordance with the judge made

law and order.”

My personal verdict on the controversy as to the possibility of the Supreme Court

of Nigeria being the Grundnorm is that it cannot possibly be. The Judiciary is a

creature of the Constitution and is just one arm out of the 3 recognized arms of

government. As important as it is, it is subject to the Constitution from which it

derives it powers. It would be a contradiction in terms of grant the judex

normative superiority over the Constitution from which it derives its existence and

powers. For to the question “what is the authority of the Judge for his action”, a

question posed by Justice Eso in his Benin lecture, the answer would be “the

Constitution”. Although the learned Lecturer gave his answer “most probably a

Decree”, the important point is that he recognized that there were norms higher

than he Judiciary in the hierarchy of norms.

(ii) THE LEGISLATURE

Could the grundnorm be reposed in the legislature? Whilst this is probably true

with regard to the United Kingdom, where due to the constitutional history of

England and its sister nations, Parliament over the centuries has acquired such

enormous powers that it can declare a man, woman and vice versa, this is

certainly not the case with the legislature in the Nigerian context. Indeed the

normative position of the legislature in a civilian regime is not higher than that of

the Judiciary in law (being just one of the t here arms of government) and is

probably less than that of the Judex in reality, not only because the latter can

declare legislation null and void, but because the Judiciary has always had far

greater credibility amongst the citizens of the country, than the Legislature.

So the latter can be ruled out as a possible source of our grundnorm. Indeed by

Section 4(8) of the 1979 Constitution, “the exercise of legislative powers by the

National Assembly or by the House of Assembly shall be subject to the

jurisdiction of the Court of law and Judicial tribunals established by law; and

accordingly, the National Assembly or a House of Assembly shall not enact any

law that ousts or purports to oust the jurisdiction of the Courts of law or of a

judicial tribunal established by law”. It is significant that the legislature in a

civilian regime has no known protagonist as the repository of our grundnorm.

(iii) THE CONSTITUTION

The Constitution is a popular choice as the grundnorm of the Nigerian Legal

Order. As we saw earlier, Justice Eso is a protagonist of that view, although he

makes it clear that this is with the support of the interpretative jurisdiction of the

Supreme Court. Dr. Aguda is also a supporter of the Constitution school of

thought. In his paper at the 1989 N.B.A. Conference, Dr. Aguda declared as

follows:-

“Surely, if one were faithfully to Kelson’s analysis, the indisputable

grundnorm of the Nigerian Legal Order is the Constitution, and

nothing else. I am not keen to examine into what was the

grundnorm of the legal order before 1960. But with the coming into

effect of the independence Constitution in 1960, that became the

grundnorm of the Nigerian Legal Order”17

Justice Oputa would appear to be a supporter of this view for in his commentary

on Justice Eso’s paper at the 1988 All Nigeria Judges Conference, Justice Oputa

described the Constitution in the following manner.

“A nation’s Constitution is its organic law. It establishes the form of

the national government and defines the rights and liberties of its

people. In a Federation like Nigeria the Constitution also defines

the relationship between t he Federal Government and the

Government of the State”18

17

“The Nigerian Grundnorm – A Critical Appraisal” p. 18. 18

“The Place of the Judiciary in the Third Republic” p. 1.

The Constitution itself has no doubt about its own pre-eminent position in the

Nigerian normative order. Both the 1979 and 1989 Constitutions declares as

follows in their very first sections.

“(1) This Constitution is supreme and its provisions shall have binding

forces on all authorities and persons throughout the Federal

Republic of Nigeria.

(2) The Federal Republic of Nigeria shall not be governed, or 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.

(3) If any other law is inconsistent with the provisions of this

Constitution, this Constitution shall prevail and the other law shall to

the extent of such inconsistency be void.”

Commencing on this provision, Justice Karibi-Whyte makes it quite clear that this

establishes beyond all doubt that the Constitution is our grundnorm. In his

commentary on a paper presented by Justice Mamman Nasir, President of the

Court of Appeal, entitled “The Political of the Judiciary” Justice Karibi-Whyte

stated as follow:-

“The Constitution has declared in no uncertain terms that it is

Supreme, and its provisions shall have binding force on all

authorities and persons throughout the Federal Republic of Nigeria.

Accordingly, Supreme Legal Authority cannot be located anywhere

other than the Constitution itself. The Constitution is the Supreme

norm from which all the other rules of law derive their validity.”19

As we shall see later Justice Karibi-Whyte must have intended this finding to be

limited to periods of civil rule.

19

“Political of the Judiciary” – Commentary by Hon. Justice Karibi-Whyte. P. 18.

Now the major problem with the school of thought which believes that the

Grundnorm is the Constitution, is the fact and reality that whenever the military

overthrow a civilian government, they do so in clear breach of the Constitution,

and then indeed go on to promulgate a major Decree, not only suspending

portions of the Constitution (particularly the entrenched human rights provisions)

but also the right to challenge legislation (Decrees).

Thus Decree No. 1 of 1984 (i) suspended numerous provisions of the 1979

Constitution, (ii) then permitted the unsuspended provisions of the Constitution to

have effect, subject to any of subsequent Decree or to modification specified in

schedule 2 to any Decree.

Indeed. It will be recalled that paragraph 3 of Decree 12 of 1994 not only asserts

that the Federal Military Government has absolute powers to make law, for the

peace, order and good government of Nigeria, but goes on to state expressly that

it is in exercise of these powers that it permitted certain provisions of the

Constitutions of the Federal Republic of Nigeria, 1979, to remain in operation.

These are but a sample of the provisions of a Decree by which a military regime

establishes itself. As already noted, other Decrees like 28 of 1970 and 13 of

1984 and 107 of 1993, state quite categorically that the military revolution which

brought the military into power effectively abrogated the pre-existing legal order

and in the case of Decrees 13, 1984 and 12, 1994 it brought about an abrupt

political change not within the contemplation of the 1979 Constitution.

The question therefore is, if the Constitution can so easily be displaced and

turned into a modified and truncated appendage, indeed hostage, of a military

Decree, can be really consider it as the grundnorm? We must remember that out

of a total of 34 years of flag independence, we have had military governments for

over twenty four years and civilian governments for less than ten years. What is

the value of a grundnorm that it out of commission for a greater part of a nation’s

history?

Faced with the impossible problem of reconciling the legal order of a Military

Government, with the normative superiority of the Constitution as grundnorm, Dr.

Aguda admits that the “exercise of powers by the AFRC20 and others acting

under and by their authority which cannot similarly claim validity under the 1979

Constitution has gone on unabated almost every day since December 13, 1983.

There must be a higher norm under which these various acts may legally claim

validity”. A higher norm? Is this not then an admission that the Constitution has

been displaced? However, Dr. Aguda argues that the Constitution is Supreme to

the extent that it has not been altered by any Decree. “To me this is the very vital

point. In areas left for the operation of the 1979 Constitution, it is still Supreme.

Therefore in answer to the question, what presently constitutes the grundnorm of

the Nigerian Legal Order, Dr. Aguda proffers the following answer:

“I would say it is the 1979 Constitution as modified and amended by

Decree No. 1 of 1984 and some other Decrees of the AFRC from

time to time which effectively amend the Constitution.”

With due respect, the Constitution, so truncated, so amended, thoroughly subject

to existing Decrees, and made to bow in advance to possible future Decrees, and

then made an appendage to Decree No. 1 of 1984, 107 of 1993 and 12 of 1994

cannot be said to still have an independent existence. There is no room for a

Supreme Decree No. 1 of 1984, and superior subsequent Decrees, and the

battered remnants of the 1979 Constitution, in the same legal firmament. Quite

contrary to the assertion of the learned Jurist, the fact that “any or all of the

provisions of the 1979 Constitution can be repealed by a single Decree, by a

mere stroke of the pen” must affect the position. In such a scheme, the

Constitution being regarded as being less than a mere Decree in the normative

order, cannot remotely be considered as the grundnorm.

20

Armed Forces Ruling Council (1985 – 1993).

The Constitution can only continue to be supreme i.e., the grundnorm, if as

prescribed in Section 1(3) of the Constitution any other law inconsistent with the

provisions of the Constitution is null and void. In these circumstances, for those

who accept the whole legitimacy and validity of Decree 1 of 1984, and

subsequent Decrees, Ojo is quite right when he says that in the circumstances,

no one any longer talks of the supremacy of the Constitution” His logic is clearly

unassailable. But then, are Decrees 1 of 1984, and all subsequent Military

Decrees absolutely valid, completely free of legal defects. Are Military Decrees

omnipotent, unchangeable? Can the Military legislate on any matter whatsoever

and for any purport whatsoever? What is the source of this omnipotence? For if

the above questions are answered in the affirmative, then the grundnorm must

be the AFRC or PRC21or the Head of the Federal Military Government. That is

what we must next consider.

(iii) The Military Ruling Council As Grundnorm

We are considering the Ruling Body in a Military Regime, not Decree No. 1 of

1966 or of 1984 for as Decree 1984 is ultimately, a mere tool of the Military junta.

It cannot be the supreme norm since its every existence is derived from another

source which can abrogate or modify it. That source in a military regime is the

Ruling or Law making Body, whether called the AFRC, SMC or PRC as it is in

Nigeria. So the question is, is the Military Council the grundnorm, at least under

a military regime?

Professor Ojo does not appear to have any doubt about this. Having dismissed

the Constitution and the Judiciary as non-viable contestants he concludes thus:

“In the present military administration, the Supreme Military Council

(now Armed Forces Ruling Council) (AFRC) is a source of the its

own legal order. Any search for a grundnorm away from the

Supreme Military Council (now AFRC) or the expression of its

21

Provisional Ruling Council (1993 - )

powers as declared in Decrees is a futile judicial and academic

exercise.”

This view can be taken to be widely held both in the Judiciary and indeed

amongst Law Teachers and Legal Practitioners. Undoubtedly, one of the most

eloquent cases ever made by a member of this school of thought was that

contained in the address of the late and great Justice Augustine Nnamani,22 at

the opening of the 1990 conference of the N.B.A. I hope I shall be forgiven for

quoting the late Justice at some length.

“Those who would wish to see aggressiveness in the Judiciary

would like the Judiciary to refuse t o enforce any laws which outs its

jurisdiction, or indeed to ignore it and proceed to hear the relevant

case. It seems to me that a proper appraisal of the situation must

start from am examination of the Constitutional position for this is a

Constitutional problem. One must necessarily start from Section

4(8) of the 1979 Constitution which provided that … “the National

Assembly or a House of Assembly shall not enact law that outs or

purports to oust the jurisdiction of a Court of law or of a judicial

Tribunal established by law.” This was a conscious effort by the

Constitution makers to enhance the authority of our Courts. But

this Section 4(8) of the Constitution was suspended by Decree No.

1 of 1984 leaving room for the ousting legislation with which we are

concerned. Of course legislation ousting jurisdiction of the Courts

had occurred in the Military Regimes 1966 – 1975 and 1975 –

1979. While section 6 of the Constitution vests the judicial power of

the Federation on the Superior Courts, the legislative and executive

powers of the Federation have been vested on the Armed Forces

Ruling by Virtue of Section 1 sub-section 5 and 6 of the Constitution

(Suspension and Modification) Amendment Decree No. 17 of 1985.

The third Constitutional point worth noting is nature of the Military

22

Formerly Attorney-General of Nigeria and later Justice of the Supreme Court.

regimes which promulgate these ousting decrees. The Military

claim that their action is a revolution and that the old legal order has

been completely overthrown and replaced by the present legal

order. It does appear to me that it is not in the Courts that this

assertion can be challenged. The Courts in Lakanmi v. Attorney-

General of Western State (1971) 1 U.I.L.R. 201 tried and failed.

The result was Decree No. 28 of 1970 which has re-incarnated as

Decree No. 13 of 1984. The result of this Supremacy is that form

Decree No. 1 of 1966 and Decree No. 32 of 1975, a Decree has a

matter of Constitutional Law taken precedence over the

Constitution itself and can amend it. The Supreme Court observing

the present legal order accepted that legal order in F.S. Uwaifo v.

Attorney-General of Bendel State 1982 S.C. These are the

unpalatable facts of life which a rational appraisal of ouster clauses

must take into account. In my view when the Armed Forces Ruling

Council legislates in a Decree to oust the jurisdiction of the Courts

over any matter, it in effect amends the Constitution to reduce in

respect of that matter t he judicial power vested in the Courts by

Section 6 of the Constitution.

In this reasoning a refusal by the Courts to recognize an ouster of

jurisdiction or to ignore it would result in a Constitutional

confrontation with the Military which may not necessarily end in the

survival of the administration of justice in the form we would wish.”23

Thus Legal scholars and judges of great eminence and learning, all the way to

the Supreme Court, have become so overwhelmed by the domineering physical

presence and force of the military, that they have developed a doctrine of the

overriding superiority of the military order or regimes over all other existing

centres or sources of authority and power in the Nigerian polity.

23

See pp. 10 – 11 of the Lecture .

In the reasoning of these jurists, scholars and justices, a military regime and its

decrees are superior to the Nigerian Constitution and by extension, the people of

Nigeria as a collective entity. Indeed they hold that such part of our Constitution

as exist during military regimes, do so at the mercy of the regime. A few more

passages from the writings and judgments of the jurists will suffice to

demonstrate what is being said and to establish the gravity of our condition.

PROFESSOR B.O. NWABUEZE

“A successful military coup overthrows both the government and the

constitution under which the government is established, replacing them

with new ones. The military government established following a military

coup is an absolute one, with unlimited powers. Its authority is supreme.

Where a formal constitution is established, it is subject to the absolute and

supreme power of the military government. The military is the source from

which such a constitution derives its authority, and at whose sufferance it

must therefore operate. This is the reverse of the position in a

constitutional democracy where the government is the creation of, and

derives its powers from, the constitution.”24

(iii) JUSTICE KARIBI-WHYTE

“A Military Government is an undoubted aberration. It is not a democracy.

Its administration is sui generic. Its legitimacy in this country and the

world over is accepted. The Military Administration came into effect after

abrogating the pre-existing Constitution and constitutional order and in its

place establishing its own authority. The position is that the pre-existing

Constitution is subordinated to the authority of the Military Command,

which abrogated some sections, suspended others and modified others.

The extent to which the provision of the Constitution survived the authority

24

Military Rule and Constitutional, Spectrum Books 1992, p. 3.

of the Military Government depends upon the expressed intention of the

Military Government in its Decrees”.

“The doubt created by the Supreme Court decision in Lakanmi v. A.G.

West & Ors (1971) 1 U.I.L.R. 201 about the status of Decrees viza-viz the

Constitution and the supremacy of the Military Government over the

Constitution has been laid to rest by the Constitution (Supremacy and

Enforcement of Powers) Decree No. 28 of 1970. This position has now

been re-enforced by subsequent Decrees in 1975 etc. The position now

is that the Military being the Sovereign Authority of the State, the Decrees

of the Military Government are superior to any provisions of the

Constitution This includes superiority over the fundamental rights

provisions.

Any provision of the Constitution can now be abrogated, suspended or

modified by a Decree of the military government.”25

Supreme Court: in Military Government of Ondo State v. Adewunmi, per

Karibi-Whyte, JSC:26

“This is yet another appeal which questions the scope of the powers of the

Military Government of a State to make laws, within the frame work of the

new Constitutional Order. The issue is certainly not new. Our case law is

replete with decisions of the Court since the new legal order was created

by the promulgation Decrees No. 1 and 3 of 1966 on the 16th January,

1966; apart from the contrary view of the court in E.O. Lakanmi & Anor v.

A.G. (West) and two others (1974) 4 E.C.S.L.R. 713 which was promptly

and unequivocally rejected by the Federal Military Government

(Supremacy and Enforcement of Powers) Decree No. 28 of 1970 on the

9th May, 1970, the Constitutional and legal order has been accepted that

25

Unpublished paper entitled “The Role of the Courts in the Protection of Human Rights” at a Seminar

Organised by the Constitutional Rights Project, at Ogere, Ogun State on 14/5/93. 26

[1988] 3 NWLR (Pt. 82) 280 at 305.

the fundamental law of this country from which all the authority, legality

and validity of other laws is derived is the Constitution (Supremacy and

Modification) Decree No. 1 of 1966 and Decrees of identical appellation

promulgated by successive Military Governments which have come into

power by violently displacing an existing government. The Decrees are

the Constitution (Suspension and Modification) (No. 9) Decree No. 59 of

1966, the Federal Military Government (Supremacy and Enforcement of

Powers) Decree No. 28 of 1970; The Constitution (Basic Provisions)

Decree No. 32 of 1975; Federal Military Government (Supremacy and

Enforcement of Powers) Decree 1984 No. 13 of 1984. Each of these

Decrees unequivocally and uncompromisingly declared the absolute

authority of the Military Government, the subordination of the pre-existing

legal order by rendering provisions of the erstwhile fundamental law (i.e.,

the constitution), subordinating to the Decree, and the limits of the

legislative powers and jurisdiction of a Military Governor. Above all, the

first decrees suspended provisions of the Constitution considered

inconsistent with its existence and the exercise of its authority, and

modified others; allowing only those it regarded complementary to its

exercise of undisputed authority. Thus, the Constitution in so far as it

survived and it applied, did and still does so on the benevolence,

sufferance and behest of the authority of the Military Government”.

Supreme Court: in Nwosu v. Imo State E.S.A. per Belgore, JSC.27

“Similarly, as in military regimes, Decrees of the Federal Military

Government clearly oust the court’s jurisdiction, there is no dancing round

the issue to found jurisdiction that has been taken away. Lawyers trained

and groomed under the notion of civil liberty frown on ouster provisions in

any act of parliament; so do the judges of similar background. But it must

be remembered that Armed Forces Ruling Council is not a parliament

neither does it pretend to be one. We have lived with their Decrees

27

[1992] 2 NWLR (Pt. 135) 688 at 727

(whether by Supreme Military Council or Armed Forces Ruling Council, in

fact nomenclature is not relevant) for long now that there should be no

doubt as to the meaning of their ouster provisions. Their Decrees, they

always emphasize for avoidance of doubt, are supreme even to the

constitution. It is for that purpose that legal practice will attract more

confidence if administrative avenues are pursued rather than journey of

discovery inherent in court action is such matters.”

Supreme Court:, Bello, CJN in Attorney-General of Anambra State & 13 Ors

vs. Attorney-General of the Federation and 16 Ors.28

“Under our present condition, decrees are the Supreme laws in Nigeria

and all other Laws including the current constitution are inferior to the

Decrees;”

THE IMPLICATIONS

What are the implications of these views and pronouncements? The implications

are that during a Military Regime, there is no Rule of Law. Specifically it means

that our human rights can be suspended, that the jurisdiction of the Courts can

be ousted, that any citizen can be detained in indeed killed without recourse to

any legal process. Indeed it means the supremacy of a negligence number of

Nigerians in uniform, over the State, the People and their Constitution.

Nigerians thus become consigned to the status of a conquered people, slaves of

a superior military race who have complete and unquestionable authority over

our land and our people. This tendency and mentality has manifested itself on

several occasions and has created the “Kabiesi”29 syndrome as we all witnessed

with shock and horror in Fawehinmi vs. Ibrahim Babangida in 1989, when the

Head of the Federal Military Government was granted the status of the supreme

sovereign whose actions could not be questioned, in the Courts.

28

[1993] 6 NWLR 9Pt. 303) 693 at 714. 29

The King can do no wrong.

But can this view be really valid? Is such a state of affairs acceptable or even

tolerable? Have these great jurists subjected their doctrine of Military supremacy

over the Peoples and State of Nigeria to a rigorous process of reasoning and

analysis? I think not. I think that such conclusions and attitudes are the results

of a combination of intellectual complacency and judicial inertia.

Let us briefly examine once more the basis of the doctrine of military absolutism.

According to Nwabueze, a successful military coup overthrows both the

government and the constitution under which the government is established,

replacing them with new ones. This, with minor variations is the basis for the

assertion of the supremacy of military regimes over our Constitution and by

implication, our collectivity as a People. But if the military overthrew a

government, did they overthrow the Nigerian State? No! Did they overthrow the

Nigerian People? No! If the answer to both questions above is in the negative

as it must be, (because the military, being part of the Nigerian State and People

cannot overthrow themselves) then it follows without any question that the

Nigerian Constitution as a whole could not have been overthrown. Only that part

of it making provisions for a National Assembly (Houses of Assembly for States)

and elected Executive President (Governors for States) are modified by a

legitimate military coup.

The problem therefore is not whether a military regime has overriding powers in

our polity and legal order, for they do not. They are subject to the Constitution

and the Rule of Law. The problem is whether Nigerians, particularly our

Scholars, Lawyers and Courts have a sufficient level of consciousness, courage

and commitment to constitutional supremacy and the Rule of Law, to uphold the

sovereignty of the People of Nigeria over all other sub-orders, groups and

juntas, regimes of whatever nature.

One other very grave error into which the advocates of military absolutism have

frequently fallen, is to equate the military’s repeated assertions of their own

supremacy with p roof and validity of such claims. In other words, repeated

ascertains and claims of supremacy in Decrees is taken by the jurists as

confirmation of the existence of that supremacy. Our jurists have made no effort

to test these assertions against any objective yardstick or criteria.

Thus, in Ondo State v. Adewumi, Karibi-Whyte, JSC, basis the supremacy of the

military juntas on the Decrees made by the juntas themselves. Starting from the

Constitution (Supremacy and Modification) Decree No. 1 of 1966, he then lists

meticulously, subsequent Decrees of succeeding military governments and then

concludes: “Each of these decrees unequivocally and uncompromisingly

declared the absolute authority of the Military Government, the subordination of

the pre-existing legal order by rendering provisions of the erstwhile fundamental

Law, i.e. the Constitution, subordinate to the Decree.” This is an unfortunate type

of argument with most potentious, ominous and tragic consequences for us as a

Nation.

Can the bare repeated assertion of a made man that he is God, turn him into

God? What has happened to the onus and burden of proof? What has

happened to the most basic principle of the rules of evidence that he who asserts

must prove? What sort of proof is constituted by the mad man above merely

repeating “I am God, I am God?” But it appears that where the Military is the

party affected, that standard of proof is good enough for our Supreme Court,

Jurists and Legal Schools. The late Justice Nnamani identified this problem in

the 1990 lecture delivered to the Nigerian Bar Association at Benin when he

stated:

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%55

However, in October 1993, the Hatian Coup Leaders revenged on the Governor’s

Island Agreement and refused to give up power. On the contrary, they expelled

the U.N. Human Rights Monitors, and tightened their grip on the Country.

Further more, the incidents of human rights violations increased in frequency and

intensity, murders and inhuman and degrading treatment against Aristide’s

supporters including priests, and women now took a frightening dimension.

Reacting to these developments, the U.N. Security Council imposed tighter and

stricter sanctions on Haiti on Haiti. Thus by resolution917 (1994) the security

Council decided that sanctions would continue until the retirement and departure

from Haiti of General Cedras, the leaders of the police and the Military High

Command, including the Chief of police in Port-au-prince, the Haitian capital, and

the Chief of Staff of the Armed Forces and the creation of a proper environment

for the U.N. mission in Haiti (UNMIH) and the return of the democratically elected

President.

The parties to the Governors Island Agreement, and “any other authorities” were

called upon in the resolution, to cooperate fully with Dante Caputo, special envoy

of the Secretaries-General of the U.N. and O.A.S. to “bring about, the full

implementation of the Governors Island Agreement and thus end the political

crisis in Haiti.”

The following sanctions were imposed on Haiti under the resolution.

1. All states were obliged to prevent the entry into their territories, of the

Haitian Military officers, including the police employed by or acting on their

behalf, as well as their immediate families.

2. All states were strongly urged to freeze the funds and financial resources

of these persons.

3. States were called upon to cooperate with the legitimate Government of

Haiti, acting nationally or through regional arrangements, to use all

necessary measures to ensure strict implementation of earlier decisions of

the Security Council, in particular, to “halt outward as well as inward

maritime shipping in order to inspect and verify their cargos and

destinations, in line with the strict embargo of goods to and from Haiti”

4. In addition to the above, all states were called upon to

(i) Deny permission to any aircraft to take off from, land, or over fly

their territory if it was scheduled to land in or had taken off from the

territory of Haiti, with the exception of regularly scheduled

commercial flights.

(ii) Prevent the import, export or trans-shipment of products originating

in Haiti; into their territories and

(iii) Prevent the sale or supply of any commodities or products to any

person or business carried on-in or operated from Haiti, with the

exception of medical supplies, food stuffs, products for essential

humanitarian needs, petroleum or petroleum products, including

propane gas for cooking.

(iv) All ships, except those carrying the goods exempted above, were

prohibited from carrying or leaving Haiti.

When these measures failed to produce the desired results, the Security Council

in July 1994, extended the sanctions to include all flights in and out of Haiti,

whether scheduled or non-scheduled, and included petroleum products in the list

of goods under the embargo.

However, by far the most significant of the measures taken by the Council were

those in resolution 940 (1994) of 31 July 1994 by which it authorized member

states to form a multinational force under unified command and control and in

this framework, to use all necessary means to facilitate the departure from Haiti

of the Military Leadership, … the prompt return of The legitimately elected

President and the restoration of the legitimate authorities of the Government of

Haiti, and to establish and maintain a secure and stable a secure environment

that will permit the implementation of the Governors Island Agreement …”

Pursuant to this resolution, the United States organized an armed force of about

16,000 men who would form the linch pin of this multilateral force. Fortunately,

when faced the inevitability of forceful removal from power coupled with the

likelihood of trial for treason and gross violations of Human Rights amounting to

crimes against humanity, the resistance of the Military Junta collapsed and they

negotiated themselves out of power. Under the agreement, the coup leaders,

namely, General Cedras, and Lt. Colonel Francois, stepped down in accordance

with resolutions 917 and 940 1994, and left the country. They were granted

political amnesty for their coup, but not for their violations of human rights. The

multinational force (virtually all U.S.) entered Haiti without meeting any resistance

on 19th September 1994, followed on 23 September 1994 by an advance team of

12 United Nations military observers.

The Haitian National Assembly was reinstated, and its members, some in hiding

in Haiti and others in exile all over North and South America returned home for

their first legitimate and democratic meeting in 3 years. The puppet President

appointed by the Military Junta resigned and moved out of the Presidential

Palace.

On Saturday 15th October 1994, President Aristide returned from exile and thus

all the democratically elected and legitimate authorities and institutions in Haiti

became effective and operational, again and democracy was restored in Haiti by

the power and authority of International Law and the Organized International

Community on 15th October 1994.

Thus no theory of absolute and Supreme Powers of Military Rules could protect

the Junta from the impact of the international Rule of Law. The can never

provide a cloak for such a legal monstrosity as absolute or Supreme power by

one set of human beings over the whole population of a state. We are not in the

era of Hobbes and his Leviathan when absolute rulers, like dinasours, raomed

the earth at will.

Another major development in the area of the Rule of Law, with universal

implications, needs to allude to.

The two Military Leaders, who came to power in South Korea in 1979 by a coup,

and subsequently ruled that country up till 1993, are currently the subjects of an

acute controversy. There are strong moves within their national assembly to

have them tried for treason. These moves are being resisted by the party and

government in power, leading to grave confrontation between the government

which wants to forgive and forget, and the opposition who insist that the crime of

imposing an un-elected government on a people must be punished. The

opposition’s stand is strongly motivated by the grave breaches of Human Rights

which took place during the earlier phase of the military dictatorship.

The Korean and Haitian development is equally revolutionary. It represents the

culmination of the principles of International Law upholding inviolability of Human

Rights in the widest sense of the term. It has finally broken the barrier erected by

Article 2(7) of the Charter of the U.N. excluding the domestic affairs of states

from the domain of International Law. But almost from the moment the U.N. itself

commenced operations, this provision has been subjected to a continuous

erosion of exceptions, until the Haitian resolutions finally broke it down like the

Berlin wall. First the exceptions, expressly contained in the Charter itself, that

any action of decision concerning a threat to or breach of international peace and

security or an act of aggression was not in any way affected by the domestic

jurisdiction clause.30

Next came the question of racial discrimination and apartheid which, based on

their interpretative jurisdictions over the U.N. Charter, the U.N. General

Assembly, the Security Council and the International Court of Justice, declared a

question not with the scope of the domestic jurisdiction clause. For the practice

of racial discrimination was declared by the flagrant violation of the Charter.

30

See paragraph 2(4) and Chapter 7 of the Charter.

Subsequently, racial discrimination was declared by the United Nations to be a

crime against humanity and a threat to international peace and security.31

Right from this inception of the U.N. declared affirmatively that colonial territories

were not within the domestic jurisdiction of states, making that subject matter and

colonial territories and peoples, fully within U.N. jurisdiction. All this was

achieved against the stiff opposition of the major colonial powers like Britain,

France, Spain and Portugal. That was why the U.N. was able to declare in 1970

that the right of self-determination was a universal and an unqualified right

pertaining to all communities, particularly colonial territories and peoples.

Thus with this steady and progressive erosion of the domestic jurisdiction clause,

it was only logical for the Security Council to finally decide as it did in the case of

Haiti that Democracy and Human Rights were no longer matters within the

exclusive domestic jurisdiction of a state, but were matters of universal concern

and squarely within the jurisdiction of the organized International Community as

represented by the U.N. and its Charter. A vital new element in these

developments is the characterization, by the Security Council, of the 1991

Military Coup in Haiti and the overthrow of democracy as a threat to regional

Security and International norms, thus investing such an act with an international

character and effect.

Thus is his statement to the Security Council on 29 September 1994, Mr. Warren

Christopher, the United States Secretary of State, acknowledged the

international effect and consequences of Military Coup against democracy when

he stated that as a consequence of the Haiti Coup,

“We [the International Community] recognized our responsibility to

stand together for stability and the restoration of democratic

government in the Western Herisphere. Together we explore every

avenue to achieve a peaceful resolution. We negotiated in good

31

See Resolution 2671 (XXV) F of December 1970 (General Assembly and 282 (1970) Security Council.

faith. We imposed and then strengthened sanctions against Haiti.

We made p lain to the military leaders that their tyranny in Haiti was

neither tolerable nor tenable”32

By characterizing the coup in Haiti and the overthrow of democracy as a threat to

regional security and to international norms, what the Council was in effect doing

was to raise democracy in individual states to the status of a binding rule of

international law, the violation of which would be attended by appropriate U.N.

action under chapter 7 of the Charter, namely, the use of force by or under the

authority of the U.N. for the maintenance or restoration of democratic rule in a

state.

Thus, one of the medium terms effects of the collapse of Communism in the

Soviet Union and Eastern Europe and the corresponding supremacy of western

values and political culture, is the emergency of democracy as the latest principle

of International Law. At the current rapid rate of development of the principle, it

is predictable that it will join the group of peremptory norms of International Law

as Jus Cogers before long.

What the above development mean is that the era of local strongmen, warlords

and domestic oppressor has given way to that of the International Human Rights

and the Rule of Law under the aegis of the United Nations and its regional and

sub-regional agencies. The current operations of Ecomog33 in Liberia, led by

Nigeria, is a good illustration of this new development in International Law. The

case made by Nigeria for the dictatorial intervention in Liberia’s domestic or civil

war are that the human and material carnage are two enormous for us to fold our

arms under the excuse that the matter was within the exclusive domestic

jurisdiction of Liberia and therefore outside the jurisdiction of ECOWAS States,

the O.A.U. and the U.N. The words of President Babangida at a seminar on

Liberia held in Lagos in October 1992, clearly reveal that we embrace the new

32

See U.N. Doc. S/PV 3429, p.3. 33

Economic Community of West African State Monitoring Group.

principle that the gross violation of Human Rights within a state is now a matter

within the domain of international law which justifies the immediate response of

the International Community.

“Over the last two years, the crisis in our sister West African

country, Liberia and particularly the quest for its just and peaceful

settlement, have animated and dominated discussions and

dialogue across our sub-region and engaged the attention of all

Heads of State and Government of the Community of West African

State (ECOWAS). Our shared desire for an end to violence, a

restoration of peace and the re-establishment of democratic rule in

that country has led, first to one of the most demanding peace-

monitoring operations in African history, and secondly, to what is

perhaps the most sustained diplomatic engagement in the history of

ECOWAS.

......

It will be recalled that at the time Liberia was degenerating into

anarchy, with the wanton killings, the terrible starvation and the

horrendously unimaginable suffering of its peace-loving people, that

tragedy was hardly noticed by the rest of the world. Given the

historic transformations that were then taking place across Eastern

Europe and the aggravated security situation in the Middle East, it

was clear that those developments tended to overshadow and

upstage the nightmare that was then unfolding in Liberia.

It can indeed, be said, that even those countries which had been

deeply involved in Liberia’s past and which still have direct interests

in its present anguish and future fortunes, assumed the role of

spectators, concentrating their attention and resources on events in

the Middle East where the scope of human suffering was far lower

than in Liberia. The message was clear that Liberia crisis, even

with its tragic human, dimensions, ranked low in the priority scale of

the extra-continental powers. And the imperative thus became

doubly compelling for us Africans to take our destiny in our own

hands and evolve clear strategies for the effective management of

conflicts in Africa and her constituent sub-regions.

.....

Secondly, we must recall that as far back as the mid-1970s, infact

soon after ECOWAS itself was founded, the leaders and peoples

our sub-region came to the realization that individual countries

could no longer afford the illusory belief that their security was

assured as long as conflict in some other country had not spilled

over into their territory. Indeed, the fact had come to be widely

acknowledged that instability in any one country affects the

economic harmony and collective development of the entire sub-

region. We thus came to appreciate and acknowledge the eternal

truism in that noble injunction popularized by the framers of the

United Nations Charter to the effect that “Peace is Indivisible”.

While ECOWAS initially appeared as merely an economic

community, and while some participants mistakenly assumed that

political harmony could be ignored in the push for, stronger

economic union, the experiences of other regions, of the world had

clearly demonstrated that economic development could be

achieved only within a stable and secure political environment.

.....

Our involvement in Liberia was also informed by the international

embarrassment which the crisis in that country posed to us al

members of the black race. While the peoples of other developing

regions, from Latin American to South-East Asia, have been busy

consolidating their past development effort and planning for the

21st Century, the fratricidal carnage, wanton destruction and

appalling human catastrophe in Liberia tended to portray us as a

race heedlessly bent on regressing into the backwaters of history.

Already portray in the international media as a continent and a race

from which the only news to be expected are those of poverty,

starvation and misery, we could not fold our arms and look the

other way while new images of barbarism, savagery, and even

cannibalism were being added to that picture.”34

Indeed, President Babangida was absolutely correct in his reasoning and action

with regard to Liberia. That is why, so much blame is being heaped on the big

powers, particularly the United States and France, and on the O.A.U. for standing

by whilst the people of Rwanda were being wiped put and the state was being

destroyed. That is why Nigeria and our domestic situation cannot now be an

exception to this clearly established International trend. There is thus nothing

like an absolute or supreme body of persons within any state which can exercise

unchallengeable power within that state. All power is limited by the Rule of Law,

Human Rights and Common Weil and International Law.

In conclusion therefore, one can state categorically that the doctrine of absolute

powers and absolute supremacy of a Military Regime is legally abominable,

intellectually grotesque and morally indefensible!

(v.) The True Sovereign Authority: The will of the People

When a military junta seizes power unconstitutionally and removes a

constitutionally elected civilian government, the whole process can be viewed

through either of two competing and conflicting legal models.

In model one, it is postulated that by its very success in overthrowing the civilian

government and consequently the pre-existing legal order, the military junta

acquires legitimacy and unlimited powers to rule, whether for good or evil. Under

this model, legitimacy is directly and exclusively derived from the success of the

34

Seminar on Liberian Crisis, 29 October 1992, The Nigerian Institute of International Affairs; Key Note

coup. The junta is thus under no legal restraint whatsoever and has absolute

power. It is omnipotent.

It owes no legal obligation whatsoever to the people of that country and operates

without any restraint and with unlimited powers. There is no authority superior to

it in the state Legal Order, rather all other authorities and bodies are

subordinated to it. This is the model under which Decree No. 1 of 1984 is

regarded as enjoying unqualified validity and by extension Decrees like, State

Security (Detention of Persons) Decree No. 2 of 1984 also enjoy the same

status.

By this argument the Federal military government (Supremacy of Powers)

Decree No. 3 of 1984, Public Officers, (Special Provisions) Decree No. 17 of

1984, Decree 12 of 1994 and other similar decrees, ousting the jurisdiction of

courts and suspending fundamental and long acquired rights of Nigerians, are all

also valid without qualification.

Reference has already been made to the protagonists of this view and I have

already noted the consequences of ascribing such legislative and executive

absolutism to any authority. We have seen that this is absolute fallacy.

We may now consider the second model. Under this model, when a military

junta or any other group of persons overthrows, a constitutionally elected

government, its bare success merely gives it physical control, but not legitimacy

or by acquiescence, i.e. when they do not resist the change.

It is this acceptance that confers legitimacy on the military government. In the

absence of general acceptance the junta, though physically in control, will be an

illegal body, without any power to rule lawfully. Such a group will then be no

different from a conquering army of occupation and all their laws and executive

acts, save for those absolutely necessary for the maintenance of daily existence

will be illegal, null and void. It is irrelevant that such a group can maintain

physical control for a long period of time. That will

not confer legitimacy on them. Their legal status will be no different from that of

armed robbers. Armed robbery does not become legitimate simply because it is

successful. It is a crime subject to prosecution without limitation of time. Only

acceptance by the population can confer legitimacy. Lack of legitimacy would

also mean liability to trial after their loss of physical control.

Thus model is well known in international law as the basis for determining the

legitimacy of a government that comes to power by a coup. It is also applied to

the illegal occupation of foreign territory in international law. The difference,

however, in the case of the illegal occupation of another state’s territory is that

the consenting authority is the organized international community – in modern

times, the United Nations. This was the model used in situations like the South

African illegal occupation of Namibia, the minority Smith’s Regime illegal

declaration of independence in the then Southern Rhodesia, and the illegal

occupation of Manchuria in China by Japanese forces in 1931. The same

principle applies to the Israeli occupation of Palestinian Territory.

There is a vast gulf between the legal consequences of model one and those of

model two. We shall see this anon. That model two is closer to reality and more

consistent with legality, logic, reason and morality, can easily be demonstrated.

A good starting point would be a passing remark made by President Ibrahim

Babangida in an interview he granted to a team of ‘Daily Times’ officials which

was reported in the ‘Sunday Times Newspaper’ of 7th October 1990. Asked

whether this would be the last Military administration in Nigeria, Babangida

replied inter alia:

“But the important thing that I have kept on stressing and I think the

Nigerian people are getting to accept is that coups succeed where

there is frustration in society. I have been in this for God knows

how long …. The people should accept one thing. If they vote in a

bad government, they should develop the patience to wait until the

tenure of that government has expired. If there is any act

committed by individuals in government that is prejudicial to good

order and governance then they should follow the due process of

law, to get that erring person dealt with. I can tell you no military

man ventures into a coup if he cannot guarantee the support of the

populace”

I believe Babangida very well knew what he was talking about. This had been

his consistent position right from the moment he seized power from the

Buhari/Idiagbon regime. Thus in his very first address to the Nation on the 27th

August 1985, President Babangida stated inter alia: “We recognize that a

government, be it civilian or military, needs to consent of the people to govern if it

to reach its objective. We do not intend to rule by force”.

Apart from the implied admission that the consent of the populace is the basis of

the legitimacy of military government, these passage also indicate that coups

usually occur when the same populace is fed up (frustrated) by the misdeeds of a

constitutional or democratically elected civilian government. In other words, the

military junta usually assesses the mood of the Nation and will normally attempt a

coup if only they are confident that it would be welcomed by the populace – the

source of legitimacy.

The importance of the consent of the populace in the conferment of legitimacy on

a military government is further buttressed by an examination of the perambular

provisions of both the 1979 and 1989 Constitutions which are identical. They

state as follows:

“”We the people of Nigeria having firmly and solemnly resolved: To

live in unity and harmony as one indivisible and indissoluble

Sovereign Nation.

AND TO PROVIDE for a Constitution for the purpose of promoting

the good government and welfare of all persons in our country on

the principles of Freedom, Equality and Justice and for the purpose

of consolidating they unity of our people, DO HEREBY MAKE,

ENACT AND GIVE TOOOURSELVES the following Constitution.”

Thus we the people of the Federal Republic of Nigeria, all of us, the estimated 88

million and more Nigerians, enacted and gave ourselves the Constitution. The

question therefore is, can a tiny fraction of Nigerians, which all Military Juntas

must necessarily be, suspend, or modify, the provisions of the Constitution

without the consent, express or implied of the whole of the populace who made,

enacted and gave themselves that Constitution? Is a fraction greater than the

whole?

After all section one of the Constitution declares that:

(i) This Constitution shall be supreme and its provisions shall have binding

force on all authorities throughout the Federal Republic of Nigeria.

(ii) 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 the

Constitution.

(iii) 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.

An emergent Military group which overthrows an elected civilian government

commits, a breach of all the three provisions of section one of the Constitution

enacted and given to themselves by all Nigerians. It therefore follows that

illegality can only be reversed and made legal by the makers of the Constitution

alone and not by a tiny group of people. The process of acceptance and consent

of the populace gives validity to the modification and suspension of parts of the

Constitution; for it is the creators of the Constitution themselves who now

consent to its Constitution. In the absence of this consent, the junta will never

acquire legitimacy, and any purported suspension will be null and void.

The Consent of the Populace

It is clear from all available data, both contemporary and historical that the will of

the people is the true source of law, power and legitimacy in Nigeria. This is

confirmed beyond all doubt by section 14(2) (a) of the 1979 Constitution wherein

it is thus stated: “It is hereby accordingly declared that – (a) sovereignty belongs

to the people of Nigeria from whom government through this Constitution derives

all its powers and authority”.

Given the fact that sovereignty belongs to the people, it is they and they alone

who can confer legitimacy on an unconstitutional change of government. They

can permit necessary modification of parts of the Constitution in order to align it

with the change that has been so permitted.

This is by not means an isolated view. Thus Justice Eso comes to the following

conclusion, on discovery that neither the Judiciary nor the Constitution is a

suitable repository for the Nigerian grundnorm:

“Upon the argument of an ultimate norm carried that far, even the Constitution

itself is a norm in the hierarchy of norms. For the real power is in the people.

The 1979 Constitution is clear.” After quoting the provisions of the preamble to

that Constitution, Justice Eso concluded thus:

“And so it was the people that made the Constitution, enacted the

Constitution and gave to themselves that Constitution. Of course

the people could alter or even abolish the Constitution as provided

by Section 9 thereof”

The Content of Consent

When it is stated or consent of the people is the grundnorm and is the basis of

the legitimacy of all governments, including military governments, the questions

arises, what is the content of this consent? In the case of civil rule, there is no

problem, the consent is manifested in the Constitution. But what about military

rule? What is the content of consent given to military rule, which is the basis of

its legitimacy and defines the limits of its powers? The answer is based on why

the military overthrows civilian politicians in control of the executive and

legislative arms of government.

In other words the military overthrow the elected government purportedly in order

to correct the ills done by the legislative and executive arms of government,

whom they then replace for the purpose of instituting good government.

Consequently the general will or consent is granted the military to enable them

suspend and modify the provisions of the Constitution relating to the

establishment, the functions and powers of the legislature and executive whom

they now replace, and whose powers and functions they now assume. In view of

the above, the consent granted by the populace is limited to the exercise by the

military of the powers and functions of the Executive and legislative arms of

Government whom they are thus permitted to supplant, neither more nor less.

To be specified, under the 1979 Constitution, the consent of the populace to

permit military rule was limited to the exercise of power by the military under

Sections 4, 5, 11, 12, 74 -83 and chapter vi, as modified to suit the Military form

of government. These are the provisions of the Constitution relevant to

legislative and executive functions and powers. They list the content of

legislative and executive authority and the mechanics of their operation. These

are the only provisions which an implied consent of the populace can cover.

Specifically, the consent cannot apply to (i) the suspension of fundamental

human rights, (ii) ouster of the court’s jurisdiction in any manner contrary to

section 4(8) of that Constitution, (iii) detention without trial or anything contrary to

the Rule of Law. In summary consent cannot extend beyond any thing that the

ousted Civilian Legislative and Executive had the power to do.

Since the legitimacy of a military regime is based on the common will of the

populace, any law or act in excess of the powers of the civilian Legislative and

Executive would be illegal and void.

To this category would belong any provision of Decree 1 of 1984 or 12 of 1994

asserting any superiority over the provisions of the Constitution, any provisions of

any Decree prohibiting resort to court to challenge the validity of Decree as

contained in the provisions of Decree 1 of 1984, and other Decrees like Decrees

2, 13, 17 of 1984. So the formula for determining the validity of a military law or

executive action is simple. Could the ousted civilian government have validity

enacted such law or done that act? If the answer is yes then the law or act is

valid and if the answer is no, then the law or action is invalid. Let it be stressed

once more, this invalidity stems from the fact that the laws and acts concerned,

are not amongst those which the grundnorm, namely the common will of the

Nigerian people, or the consent of the populace, permits the military to exercise.

In other words they have gone outside the mandate under which legitimacy was

conferred on them. Indeed these laws and acts are those prohibited by the

grundnorm as manifested in the Constitution. To be conferred with powers

outside those exercisable y the ousted civilian government, the military must

revert to the grundnorm for a special mandate which this time must take the form

of a referendum.

With this set of principles, no Court should find difficulty in determining (i)

whether it has jurisdiction or not to entertain a case and (ii) whether a Decree, or

Edict, or some other subsidiary legislation or executive action is valid or void. Of

course absence of jurisdiction will only arise when the subject matter of the suit is

non-justiciable or is a matter exclusively domestic to the military regime, in which

case it would be undesirable for the Court to assume jurisdiction. For example, it

is no the business of the Court to determine whether an appointment to the post

of Chief of Army Staff is valid or not.

Only when this legal regime that is, system of rules, is appreciated and applied

by our Courts, can we say that Nigeria is a State which is subject to the Rule of

Law. For this thesis is one what is valid for all time and for all types of

governments, whether civilian or military, whether Constitutional or

unconstitutional in origin.

There is an obscure or even cryptic passage in the judgment of Eso, J.S.C., in

the case of Saidu Garba v. Federal Civil Service Commission and the Attorney-

General of the Federation35 whose vital imports have been generally overlooked.

“The essence of Section 2(1) of Decree No. 1 of 1984, the

Constitution (Suspension & Modification) Decree 1984 which gives

the Federal Military Government power – “to make laws for the

peace, order and good government of Nigeria or any part thereof

with respect to any matter whatsoever” must be examined and the

question must necessarily be asked whether “laws …. with respect

to any matter whatsoever” is not limited to laws for the peace, for

the order and for the good government of this country and whether

or not the determining body of what is “peace”, “order” and “good

government” is the Federal Military Government itself subjectively

or it is the Court, objectively, under Section 6 of the Constitution of

1979 which provision is still extant notwithstanding so many

amendments made to the Constitution by the Military. In other

words, would any law made by the Federal Military Government be

automatically interpreted as having been made for the peace or

good government just because it has been made by the

Government or will the Court still not have a say in determining

what is good government? What is peace? What is order?”

The answer to those questions is that’s the Legislature may make laws and the

Executive may implement. A Military Government may roll both functions

35

[1988] 1 NWLR (Pt. 71) 339.

together in one body. But all the acts, decisions and laws of such a body or

bodies, must be subject to the rule of Law, and the sovereignty of the People and

their Constitution. No Military Decree can be superior to the Constitution. The

validity of Decrees and Executive acts of the Military must be subject to judicial

review.

4. FREEDOM AND THE RULE OF LAW AS OUR LEGAL AND POLITICAL

HERITAGE

Independent of our submission that the authority in Nigeria is the will of the

people, which constitutes our grundnorm, our right to Liberty and the Rule of

Law, can be based independently on our legal heritage from British Law. It is of

course a trite fact that since 1963, British statutes of general application,

common Law and Equity, have been applicable to Lagos and progressively to the

rest of the country, by virtue of the Supreme Court ordinance of that year.

Although by subsequent legislations, all pre-1990 English Laws of General

Application were repealed in 1959 in the old Western Region, they were infact

replaced by modern and updated versions of the same Laws, which were infact

lifted from post 1925 English statutes on the same subject matter.

What then is the significance of English Laws to Nigeria? For our present

purposes, the most important implication of this phenomenon is that all the great

principles of English Law relating to the Rule of Law, Liberty, independence of

the Judiciary, Civil Rights generally and judicial review of executive action, all

automatically became part of Nigerian Law, starting from 1963. This is the

richest legacy of Law, Freedom, Liberty, Welfare and Civil Rights in the history of

mankind. Let us now highlight a few specific milestones on this journey which

started in 1215.

We are here referring to Magna Carta or the Great Charter of 1215 wherein King

John made some historic undertakings to the people of England. In chapter 39

of the Charter is to be found its most famous and enduring provision, in which

John declared as follows:

“No freeman shall be taken or imprisoned or desseised, (of hid

freeholds or liberties or free customs) our out-lawed, or exiled, or

any wise destroyed; nor shall we go upon him, nor set upon him,

but by the lawful judgment of his peers or by the law of the land.”

Magna Carta was re-issued by King Henry III in 1225 and that re-issue still

remains in the English Statute book in full force and effect. The famous English

Legal Historians, Pollock and Maitland, describe Magna Carta as “a sacred text,

the nearest approach to a fundamental statute that England has ever had.” It

should be noted that the term “law of the land” has exactly the same meaning as

our modern term “due process of law”.

Magna Carta has become over the centuries, a stirring battle cry against

oppression and tyranny. The constant repetition from generation to generation of

its principal pledges as liberties and rights helped powerfully among all classes to

form the English national character, and later the legal culture of the nations of

the British Commonwealth which has culminated in a legal tradition common to

all these nations, including and especially Nigeria, that every citizen has inherent

in him, fundamental and inalienable liberties and rights, which no power by

whatever name called, should violate – whether King, President, Head of State,

Parliament, Supreme Military Council, Armed Forces Ruling Council or

Provisional Ruling Council.36

Among the foremost and cardinal principles of Magna Carta was the idea that

the individual had natural rights as against the King, and that those rights were

36

For an illuminating article on the origins and significance of Magna Carta see William D. Guthrie in The

Lawyers Treasury (1963) Published by the American Bar Association, p. 78 at 81.

secured to him by fundamental, pre-social laws which ought to be permanent.

Thus he very first chapter of the Charter, contains the concept that he “shall

procure nothing from anyone, directly or indirectly, whereby any part of these

concessions and liberties might be revoked or diminished; and if any such thing

has been procured, let it be void and null.”

In confirmation of this solemn covenant and undertaking, the English Parliament

enacted another statute in 1369 with the consent of the then reigning King,

Edward III, to the effect that the Great Charter should be “holden and kept in all

points and if any Statute be made to the contrary that shall be holden for none”.

In other words the Magna Carta should remain in full force and effect and any

subsequent Statute attempting to derogate from it or erode its contents in any

way, would be null, void and no effect. This statute of 1369, like the Magna

Carta itself and all pre-1900 statutes, applied to Nigeria.

I have spent much time and effect on the Magna Carta, because it is from it that

all our laws, principles, rules conventions, traditions and heritage on freedom,

Liberty and the Rule of Law, are derived.

Also part of our rich legal heritage is the English Bill of Rights, 1688 which

amongst other things, condemned (i) judicial corruption and incompetence (ii)

imposition of excessive bail on accused persons, thus depriving them of their

liberty under the law, (iii) infliction of excessive fines, (iv) inflict of illegal and cruel

punishment, all of which were entirely contrary to the known laws and statutes

and freedom of the people. It also proclaimed the following as rights of the

people:

(i) The Right to petition for reliefs for their grievance without any penalty,

(ii) Freedom of election to parliament,

(iii) Freedom of speech, and

(iv) Elimination of excessive bail.

We are also the legal beneficiaries of the English Habeas Corpus Act of 1679.

The writ of habeas corpus is a legal process “for securing the liberty of the

subject by affording immediate release from unlawful or unjustifiable detention

whether in prison or in private custody. The purpose is to inquire into the causes

for which a subject has been deprived of his liberty. By it the High Court and the

Judges of that Court, at the instance of the subject aggrieved, command the

production of that subject, and inquire into the cause of imprisonment and

detention. If there is no legal justification for the detention, the party is order to

be released. The writ is applicable as a remedy in all cases of wrongful

deprivation of liberty.37

In the famous case of Agbaje v. Commissioner of Police38 Ademola JCA,

revealed the potency of Habeas Corpus in the defence of the liberty of the citizen

in the following manner:

“In R V Governor of Brixton Prison Ex Parte Sarno (1916) 2 KB

742, it was also held that in any matter involving the liberty of the

subject, the action of the crown or its matters or officials is subject

to the control and supervision of the Judges on Habeas Corpus.

The writ has frequently been used to test the acts of the executive

and in particular to test the legality of detention in war-time under

emergency legislation like the case now being considered.”

Thus not only must all cases of detention of citizens be justifiable

matters which the detaining authority must justify before the Courts,

which as we have seen have powers of control and supervision

over executive acts in this respect, but also such detention should

only be a war-time emergency measure. In Signh v. Delhi the

Supreme Court of India, a Country which like Nigeria, is a

beneficiary of received English Laws, declared thus: “This Court

37

See Halsbury’s Laws of England, p. 24, vol. Ii, 3rd

Ed. 38

Nigerian Law of Habeas Corpus. By Chief Gani Fawehinmi, Nigerian Law Publications, 1986, p. 43.

has often reiterated before that those who feel called upon to

deprive other persons of their personal liberty in the discharge of

what they consider to be their duty, must strictly and scrupulously

observe the forms and rules of law.”

In this same case of Agbaje v. C.O.P., Justice Ademola, was able to

demonstrate, not only the solid and ancient English roots of this great remedy,

but also how it has become completely woven into the fabric of the Nigerian

Legal System in such a manner that it is now a permanent and indelible part of

our law, system and culture.

“Hundreds of years ago, the practice of imprisoning a man without disclosure of

the precise accusation against him flourish in England. The matter came to a

head in the Petition of Right in 1628 which complained to the King that:

“divers of your subjects have of late been imprisoned without any

cause showed; and when for their Deliverance they were brought

before your Justices by your Majesty’s Writs of Habeas Corpus …

and their keepers commanded to certify Causes of their Detainer,

no Cause was certified, but that they were detained by your

Majesty’s special command, signified by the Lords of your Privy

Council, and yet were returned back to several Prisons, without

being charged with any thing to which they might make answer

according to the law”.

A year before this, in 1627, in the celebrated case of Thomas Darnel 3 States

Trial 1, in the reign of Charles I, a writ of habeas corpus was granted on motion

to test the legality of imprisonment “by the special command of His Majesty” and

upon the return and discharge of King’s Bench, Hyde, C.J. said:

“Whether the commitment be by the king or others, this court is

place where king doth sit in person, and we have power to examine

it; and if it appears that any man had injury or wrong by his

imprisonment, we have power to deliver and discharge him, if

otherwise he is to be remanded by us to prison again”.

And so it was, that Lord Birkenhead felt able to say in Secretary of State for

Home Affairs v. O’Brien (1923) A.C. 603:

“We are dealing with a writ antecedent to statute and

throwing its roots deep into the genius of our common law. It

is perhaps the most important writ known to the

constitutional law of England, affording as it does a swift and

imperative remedy in all cases of illegal restraint or

confinement. It is of immemorial antiquity, an instance of its

use occurring in the thirty-third year of Edward I. It has

through the ages been jealously maintained by courts of law

as a check upon the illegal usurpation of power by the

executive at the cost of the liege.”

The petition of Right, O’Brien case, Darnel’s case and numerous other cases

form part of the background to the provisions contained in Chapter III of the

Constitution of the Federation of Nigeria 1963 and the Habeas Corpus Law, Cap

42, Law of Western Nigeria which provisions guarantee certain Fundamental

Human Rights, including the Liberty of the Subject. This is made clear by the

preamble to the Habeas Corpus Laws, Cap. 24 Laws of Western Nigeria.

“A law for more effectually securing the Liberty of the Subject.”

These, no doubt, are essential safe-guards in a Democratic Society such as

ours”

It is thus clear that the prerogative remedies like Habeas Corpus, Mandamus,

Prohibition, Certiorari are now part of the common law of Nigeria and where they

are infact promulgated into any statute or constitution, this latter fact merely

affirms and buttress an already existing state of affairs.

As earlier noted, Nigerian have religiously asserted their rights to Liberty and the

Rule of Law, right from the advent of the British Imperialist in 1861. Indeed,

despite the autocratic and despotic nature of the early colonial government, when

the Officer Administering Nigeria was both the Executive and the Legislature, the

Nigerian Supreme Court, (equivalent of our present High Courts) manned

exclusively by Englishmen, ensured that even in their dealings with the much

despised ‘Natives’, the Officer Administering and his officers, observed the Rule

of Law and ensured that no one was deprived of his liberty without due process.

In the case of Eshugbayi Eleko v. Nigerian Government39, a Lagos chief was

purportedly deposed and exiled to Oyo. He applied for a writ of habeas corpus.

This was denied him in the Supreme Court, Lagos on the ground that the

Governor was exercising a power conferred on him by a law, which could not be

inquired into by the law Courts. Reversing the decision of the Supreme Court on

appeal, the Judicial Committee of the Privy Council held that where the governor

of a colony is empowered to deport a deposed chief, an order made by him is not

within its powers all matters necessary to give jurisdiction. When the governor

makes such an order, he is acting solely under the executive powers conferred

on him by the law and in no sense as court. The appropriate court still has to

inquire whether the person was validly deposed and deported, and will

investigate and decide the whole questions raised.

In other words, executive action is always fully subject to judicial review and

control. No court can be denied or deny itself jurisdiction to review the

administrative actions of the executive.

39

[1931] All E.R. (Reprint) p. 44.

Lord Atkin who delivered the judgment of the Board did not mince words.

Declared this most learned of Jurists:

“The Governor, acting under the Deportation Ordinance, acts solely

under executive powers, and in no sense as a court. As the

executive he can only act in pursuance of the powers given to him

by law. In accordance with British jurisprudence, no member of the

executive can interfere with the liberty or property of a British

subject except on the condition that he can support the legality if his

action before a court of justice. And it is the tradition of British

Justice that Judges should not shrink from deciding such issues in

the face of the executive.”40

One or two points about this case are worth noting. In the first place, Chief

Eshugbayi an illiterate Nigerian, started his legal battle with the Government of

Nigeria in 1925. He brought over 10 Habeas Corpus applications in Nigeria, lost

all and exhausted all possible remedies, before he finally appealed to the Privy

Council. The Privy Council judgment was not given until 1931, i.e., after the

Chief had been in exile for 6 years. He applied from one Supreme Court Judge

to the other, and virtually exhausted the list of all available Judges I Lagos and

Oyo. Incidentally, the Privy Council held that when it comes to a matter of

personal liberty, a citizen has a right to apply to each Judge of the High Court in

turn.

Secondly, this case established that the Rule of Law and the whole corpus of

English Law relating to Freedom and Civil Liberty, were now part of Nigerian Law

and that even the Governor of early colonial Nigeria, more powerful than any

present day Ruler of this Country, must bow to the law and the Courts.

One must therefore pause here and ask this simple question? With this long,

undiluted and sustained application and enforcement of our Liberty and Rule of

40

Ibid p. 49.

Law, dating from 1215, can any one or group of persons, legitimately purport to

suspend or repeal them? Can our roots, heritage, the fundamental fabric or our

legal system and culture be so frivolously tossed aside by groups within our own

society?

Thus, in the light of the above history and status of our Human Rights Law, can

any authority purport to eliminate or suspend habeas corpus as Decree 14 of

1994 claims to have done? Can such a Decree which is flagrant breach of

immemorial and inalienable rights, that have become inter woven with the

existence and personality of the Nigerian State and the foundations of its legal

system be truly valid? Is this not a situation in which might base on sheer

physical force, has become irredeemably separated from Right and Law?

What further answer would one proffer to this question when you find that these

virtually inherent natural and pre-historic rights have also been consistently

entrenched in our Constitution since 1960? They are contained in the form of

fundamental human rights in the 1960, 1963, 1979 and 1989 Constitutions of this

Country. Thus Section 32(1) of the 1979 Constitution states as follows:

“Every person shall be entitled to his personal liberty and no person

shall be deprived of such liberty save in the following cases and in

accordance with a procedure permitted by Law”.

All the exceptions also relate to processes involving law courts.

And Sections 33(1) of the same constitution contains the following provision:

“In the determination of his Civil rights and obligations, including

any question or determination by or against any government or

authority, a person shall be entitled to a fair hearing within a

reasonable time by a court or other tribunal established by law and

constituted in such a manner as to secure its independence and

impartiality”.

By Section 32(5) any person arrested on reasonable suspicious of having

committed a criminal offence must be charged before a court within 24 hours, or

where there is no court within 49 kilometres of the place of detention, then he

must be charged within two days of his detention.

Similar provisions are contained in sections 20 and 21 of the 1960 Constitution,

21 and 22 of the 1963 Republican Constitution, and 34 and 35 of the 1989

Constitution. Each of these Constitutions also contains a full chapter of

Fundamental Rights of which the above listed sections are merely a part. The

relevant chapters are: Chapter 3 in the 1960 and 1963 Constitutions, and

Chapter 4 in the 1979 and 1989 Constitutions.

In other words, the epic event of 1215 has over the centuries developed

momentum and has become enshrined in our legal system. History, logic and

valid law, attest firmly that such rights cannot be taken away or be suspended by

any Ruler, except in times of war, and under stringent conditions which still

subject such executive or legislative action to judicial review.

The recognition of the fundamental and inalienable nature of certain human

rights is not a British monopoly. This has become a world wide phenomenon, for

the humanity in each individual human being is the same as that of any other

human being. Since Magna Carta, there have been famous landmarks in the

area of Freedom, Liberty, Human Rights and the Rule of Law from other cultures

and societies. Such landmarks include the French Declaration of the Rights of

man promulgated by the French Revolutionary Assembly in 1791. The American

Bill of Rights also of 1791 consists of 10 provisions added to the American

Constitution of 1787.

These Rights include free exercise of religion, freedom of speech and the press,

peaceful assembly, petition for redress of grievances, security of persons, house,

papers and effects from unreasonable searches and seizures, prohibition of

deprivation of life liberty or property without due process of law and freedom from

excessive bails, fines and from cruel and unusual punishments.

The universality and the inherent nature of these human rights received final

confirmation in the United Nations Declaration of Human Rights of 1948 and the

dual UN. Covenants on Civil and Political Rights and Economic, Social and

Cultural rights respectively, concluded and passed for the ratification of member

States in 1967.

The African Charter on Human and Peoples Rights

In recognition of the universal and inexorable nature of these rights, even the

Organization of African Unity, whose Supreme Organ, the Assembly of Heads of

State and Government, contain a large number of tyrants and dictators, in 1981

adopted the African Charter on Human and Peoples’ Rights which contains all

the aspects of Human Rights contained in our Constitution. This Charter was

enacted into the domestic law of Nigeria in 1983 under the title, “African Charter

on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983”.

In other words, the Charter is now part of Nigerian law and is binding on the

Government of Nigeria. Article 4 states that “Human beings are inviolable.

Every human being shall be entitled to respect for his life and the integrity of his

person. No one may be arbitrarily deprived of this right”. And Article 6 states as

follows: “Every individual shall have the right to liberty and to the security of his

person. No one may be deprived of his freedom except for reasons and

conditions previously laid down by law. In particular, no one may be arbitrarily

arrested or detained.”

The Charter is an increasingly important source of remedy against the violation of

human rights in Africa. Although it is not internationally enforceable as such

against States in breach of human rights, the very existence of a procedure

under which a compliant can be made about a State to an outside body acts a

deterrent against further abuse, particularly in a Country like Nigeria, with a high

level of consciousness about civil liberties. What is significant about it is that

any purported suspension of its provisions would constitute a breach of

international obligation.

Moreover, the ouster clauses in our numerous Decrees constitute an

infringement of Article 7 of the Charter which provides thus:

“1. Every individual shall have the right to have his cause heard.

This comprises:

(a) the right to an appear to competent national organs against

a acts violating his fundamental rights as recognized and

guaranteed by conventions, laws, regulations and customs

in force;

(b) the right to be presumed innocent until proved guilty by a

competent Court or Tribunal;

(c) the right to defence, including the right to be defended by

counsel of his choice;

(d) the right to be tried within a reasonable time by an impartial

Court of Tribunal.”

The efficacy and applicability of the Charter to Nigeria has been established in

several cases. Thus in M. Opayemi Bamidele & Ors v, Professor Grace Alele

Williams & the University of Benin,41 Omo-Agege, J., held that the expulsion of

the applicants from the University of Benin without being given a hearing

constituted inter alia a violation of Article 7 of the Charter and was therefore null

and void. The learned Judge therefore ordered the reinstatement of the

41

Unreported. Suit Member 13/6M/80. High Court.

applicants and further restrained the University authorities from implementing the

contents of the letter of expulsion.

Justice Omo-Agege first established the basis for the application of the Charter

when he stated as follows:

“As from the commencement of this Act, the provision of the African

Charter on Human and Peoples’ Rights which are set out in the

Schedule to this Act shall, subject as thereunder provided, have

force of law in Nigeria and shall be given full recognition and effect

and be applied by all authorities and powers exercising legislative,

executive or judicial powers in Nigeria.”

The wording of this section is clear enough; no special procedure is

prescribed for enforcement and the courts are enjoined to give full

effect and recognition to the provisions of the Charter. In an

application of this, under the Fundamental Rights (Enforcement

Procedure) Rules, the court can properly be asked to and should

have regard to the provisions of the Charter”

The provisions of the Charter have been put to even more ingenious use in

recent times particularly by the Human Rights Organizations of this country.

Particularly noteworthy is the strategy embarked upon by the Constitutional

Rights Project in their struggle to save the lives of General Zamani Lekwot and

other victims of the Okadigbo Civil Disturbances Special Tribunal.

The recent Ruling by Onalaja J., in the Lekwot case42 is illustrative of the courts

rising up as the watch-dog of civil liberties. The Applicants filed originating

summons seeking a declaration that by virtue of various provisions of the African

Charter on Human and Peoples Rights, General Lekwot and the other convicted

42

The Registered Trustees of the Constitutional Rights Project (CRP) v. The President of the Federal

Republic of Nigeria and 2 Ors, Suit No. M/102/93.

persons could not validly and legally be executed by the Respondents. They

also sought both an interim and an interlocutory injunction against the execution

of the convicted persons.

The Federal Government then filed a motion for the dismissal of the suit on the

ground that the court lacked jurisdiction to entertain the case on the basis of

Decree 55 of 1992 which not only ousted the jurisdiction of courts on any matter

arising from or concerning the proceedings of the Civil Disturbances (Special

Tribunals) but also precluded any appeal from their decisions.

Countering this agreement, the C.R.P.’s Counsel argued that the conduct of the

Special Tribunal was in gross breach of Article 7 of the African Charter,

preserving the rights of (i) fair hearing and (ii) the presumption of innocence until

proven guilty. The Charter was by virtue the African Charter of Human and

Peoples Rights (Ratification and Enforcement) Act, Chapter 10, Laws of the

Federation of Nigeria, 1990, an applicable Law of this country.

The Court held that when there are two contradictory Laws, on the same issue,

one ousting the Court’s jurisdiction, and the other preserving the Court’s

jurisdiction, the Court is bound to uphold the latter which preserves its

jurisdiction, for the Courts always guard their jurisdiction jealously and will not

allow their jurisdiction to be taken away except by statutes expressed in clear

and positive terms. Ouster provisions are always construed strictly and where

they are capable of bearing more than one meaning, the meaning which

preserves the Court’s jurisdiction is always preferred and adopted.

Applying this principle to the case before it, the Court held it had jurisdiction to

her the case because although Decree No. 2 of1987 (setting up Special

Tribunals) and Decree 55 of 1992 (purporting to preserve ouster clauses and

superiority of powers for all Decrees passed since January 1984) oust the

jurisdiction of the Court, the African Charter on Human and Peoples Rights

(Ratification and Enforcement) Act, Chapter 10, Laws of the Federation of

Nigeria 1990, preserved the jurisdiction of the Court and therefore the court

referred and adopted the provisions of the latter, as against the former which

ousted its jurisdiction.

Another basis for the Court’s preference for the African Charter on Human and

People Rights Act, was that it was an international convention creating an

obligation under International Law for Nigeria, and when therefore any purely

domestic legislation conflicted with it, the international obligation would prevail

over the domestic legislation. Indeed the Court relied on a Court of Appeal

decision in Eshevire v. British Caledonian Airways Ltd.43 in which that Court held

that any domestic legislation in conflict with an international convention, is void.

The Court of Appeal was itself relying on the decision of the Court of Appeal,

Paris, in Aeroflot v. Air Cargo Egypt44 in which it was held inter alia that:

“The provisions of an international treaty, in this case the Warsaw

Convention, … which has been ratified, prevail over rules of

domestic law when they are incompatible with the latter.”

Applying these principles to the Lekwot case, Onalaja, J., held:

“… the African Charter on Human and Peoples’ rights preserves

and saves the jurisdiction of this Court to adjudicate on the

interpretation of its provision. To borrow the words of Ogundere

J.A.C. “Thus any domestic legislation in conflict with the

Convention is void”.

In the light of the ancient and historical character of our civil Rights and the Rules

of Law in its widest sense, narrated above, can any power authority validly

deprive us of these rights? I submit that these Rights are far two deeply woven

43

[1990] 7 NWLR (pt. 163) 507 at pp. 519-520. 44

Reported in the uniform Law Review.

into the fabric of our legal and political culture and history to be separated from

our persons as Nigerian citizens.

It is thus beyond any doubt that our Fundamental Rights are infact antecedent to

the Nigerian Political Society itself. And to use the words of Justice Eso in a

similar context45 these Rights are a primary condition to our civilized existence.

Our Fundamental Rights are therefore inherent in us. They were not granted by

any government and cannot therefore be lawfully suspended or abrogated by any

government.

5. JUDICIAL ATTITUDE TO EXTRA – CONSTITUTIONAL EXERCISE OF

POWERS

We shall now conduct a brief survey of cases involving a challenge of the

exercise by the military governments, of powers outside those permissible under

our Constitution. Such powers could be legislative, or executive/administrative,

i.e., exercise of powers under the cover of a military Decree. These powers are

of course always exercised in the context of proclaimed legislative absolutism

and unquestionable executive omnipotence, as provided for in Decree 1 and 13

of 1984 – all earlier discussed during these lectures.

The context in which the exercise of these powers came under challenge before

the Courts include: detention of persons without trial, (under Decree 2 of 1984)

provisions of Decrees suspending Human Rights, ousting the Jurisdiction of

Courts or confiscating the private property of persons. These examples are of

course not exhaustive. An analysis of Judicial decisions ins these cases reveals

four different attitudes on the part of our Judges. The first group simply declare

that they have no jurisdiction to hear a case, once the executive act challenged is

based on a Decree containing a clause ousting the jurisdiction of the Courts – an

45

Ransome-Kuti v. Attorney-General of the Federation & Ors [1985] 2 NWLR (PT. 6) 211.

attitude accurately termed “total judicial abdication is the fact of a privative

statute”.46

The second group of Judges are prepared to go behind ouster clauses in order to

determine whether the executive act fully complies with the provisions of the

enabling Decree itself. Thus if the exercise of the power fails to comply with any

provision of the Decree, then such an order is not one made under the Decree, it

is not covered by the ouster provision and is therefore null and void. Thus with

regard to Decree 2 of 1984, this school of Judges, referred to as “proponents of

partial reviewability”47 contend that the judicial function is limited to restraining the

exercise of powers of detention without trial within procedural parameters laid

down by Decree 2 itself in which case the Courts cannot examine the reasons for

detaining an individual under the decree once it is established that the procedural

requirements of the Decree have been complied with. A typical illustration of this

attitude of “restricted procedural or technical reviewabilityis the following passage

from the Judgment of such Gambari J.A., in Madike 7 Ors v. IGP & Ors.48

“The Court may examine Returns to see if there are no serious

contradictions or incurable ambiguity in the entries in them which m

ay indicate absence of genuineness. When all these aspects are

ascertained and found to be positively in order and both the acts

and things done under the Decree or pursuant to it are properly

done and the provisions of the Decree/Statute strictly and

scrupulously complied, with then, and only then, in my respectful

view, will the ouster clause in the provisions in the 1984 Decree No.

2 and No. 13 come into play. The Court may then wash his hands

like the biblical Pontius Pilate, and refuse to entertain the matter

any further.”

46

Olisa Agbakoba and Tunde Fagbohunlu “Nigeria’s State Security (Detention of Persons) Decree No. 2 of

1984: Exploding the Myth of Judicial Impotence”, In Journal of Human Rights Law and practice, vol. 1,

No. 1, p. 45. 47

Ibid p. 46. 48

[1992] 3 NWLR (Pt. 227) 70 at 107.

The third group of Judges who believe that executive acts made under Decrees

are reviewable by Courts go further that a mere review of procedural compliance.

They are advocates of “total or absolute reviewability” who prefer a dynamic

function capable of penetrating beyond bare assertions by the functionaries

exercising power under a Decree, into the existence and authenticity of the

grounds upon and reasons for which the power has been exercised. Again

typical of the views of the members of this judicial school of thought is that

expressed by Segun, J., in Ozekhome & Ors v. The President of the Federal

Republic of Nigeria & Ors.49

Specifically on Decree No. 2, the Court declared as follows:

“Under Decree No. 2 of 1984, there is a vast discretion in the

(detaining authority). He has a duty to act fairly in exercise of that

vast desecration and in absolute good faith. He should not take

into account irrelevant consideration and must act in consonance

with the essential pre-conditions stipulated in the Decree. He must

therefore be satisfied that the persons to be detained are threats to

the national security or that they have contributed to the economic

adversity of the nation. As said earlier on, if this duty is omitted, he

goes outside his discretion and has acted in excess of his

discretion. To do so would amount to acting ultra vires”

“The right of individual citizens under the Rule of Law should be

respected and the Judiciary is a necessary agency of the Rule of

Law and the Courts stand between the citizens and the

Government, alert to see that the State or government is bound by

the Law and respects it. When, therefore, the Decree specified the

category of people that could be detained under Decree No. 2 of

1984 and the Plaintiffs/Respondents do not fall within that category

but are yet detained under it, they clearly …. have locus standi to

49

[1990] WBNLR 58.

institute this action as they are all bound by the Rule of Law. The

Courts have powers of judicial review to ensure that the laws are

obeyed and strictly adhered to.”

…. ….. …..

“Any act of governance which is not covered under the umbrella of

an enabling law is a nullity. The detention of the

Plaintiffs/Respondents which was not authorized by any law but

purported to be authorized under Decree No. 2 of 1984 is a

complete nullity.”

But the most radical and dynamic pronouncement on this issue, in which the

judiciary is asserting a duty to review the validity of any order imprinting on the

liberty of the citizen and at the same time purporting to oust the jurisdiction of the

Courts, was contained in the following passages in the dissenting judgment of

Kolawole, J.A., in Madike v. IGP.50

“As a starting point, the courts have always treated laws which oust

their jurisdiction with circumspection because unless in times of

emergency and hostility the citizens of this country are, in my view,

entitled to free access to the courts established under the

Constitution of the Federal Republic of Nigeria. The Courts are the

watch-dogs of the civil liberties of the citizen. It is an anachronism

in my civilized society in this day and age to deprive a citizen of his

civil liberties without an opportunity to the citizen to approach the

court to challenge such deprivation.”

It is the duty of the Court to examine very critically the provisions of

any Decree, Edict or Order which oust the jurisdiction of the court in

the execution by the Agency of Government of an act under the

Decree and to satisfy itself that such act by the Authority is done

strictly under and in accordance with the tenor of the Decree. In

50

[1992] 3 NWLR (Pt. 227) 70 at 112

other words, to oust the jurisdiction of the court, the Authority which

claims the benefit of the ouster clause in any law must have done

all its acts strictly under the Decree.

It is now a well established principle that while a person’s right of

access to the courts may be taken away by statute, the language of

any statute will be watched by the courts and will not be extended

beyond its least onerous meaning unless clear words are used to

justify such extensions."

Also referring to the unfortunate passage in the Judgment of the Court of Appeal

in the earlier case of Ching-Yao v. Chief of State (1985)51 that the combined

effects of Decrees No. 2 and 13 1984 was that on the question of civil liberties

“the Law Courts of Nigeria must as of now blow muted trumpets”, Kolawole, J.A.,

rejected that view outright and added:

“With profound respect to the court presided over by Ademola JCA,

it seems to me that the opinion “that on the question of civil

liberties, the law courts of Nigeria must as of now blow muted

trumpets” is in conflict with the stand of the Supreme Court in many

of its decisions. The Supreme Court has, over the years held that

our courts should not assume a passive role of helplessness when

an objection is raised against their jurisdiction in these matters

pertaining to these draconian laws which take away the citizens’

right of access to the courts. It has been authoritatively stated and I

am of the opinion that this is the trend today that:-

“The mere fact that the instrument by which an act or thing

or matter is done under the Decree (as Exhibit B in this

case) is not conclusive when any question arises as to

51

Reported in Nigerian Law of Habeas Corpus, p. 437 at 447.

whether the act or things or matter is done under the

Decree.”

The above dictum of the Supreme Court show quite clearly that o n

the question of the citizen civil liberties, the courts in Nigeria must

not blow muted trumpets, so when any question arises as to

whether an act or thing or matter is done under the Decree, the

courts instead of blowing muted trumpets must rise up as watchdog

of the citizens civil liberties to examinate if the act or thing or matter

done which gives rise to complaint is within the contemplation of

the Decree. It seems to me quite clear therefore that the decision

of this court in Ching-Yao v. Chief of Staff (supra) although not

directly to in the Supreme cases has, by implication, been overruled

by the various decisions of that court some of which I have earlier

referred to.

It seems to me that protection against arbitrary arrest and detention

is clearly the central features of any system of guarantees of the

liberty of the individual, consequently if a violation of the civil

liberties of any individual is illegal, notwithstanding the provisions of

any Decree which oust the jurisdiction of the court, the court has

jurisdiction to decide whether or not it has jurisdiction to deal with

the matter. In so doing, it has jurisdiction to adjudicate whether the

violation of the individual’s civil liberty has been carried out in

accordance with the appropriate law.”

The fourth group of Judges are those who are prepared to take the bull by the

horns and declare as null and void not just executive acts, but also Decrees

which violate the provisions of the Constitution or our Fundamental Rights.

Cases in thus Category are of necessity very rare. Indeed, outside the

celebrated Lakanmi v. Attorney-General (Western State)Lakanmi v. Attorney-

General (Western State)52 no other case in this group has been identified. But

Lakanmi’s case is sufficient for our purpose. For it is an embodiment of principle

which all Courts must strive to follow if the Rule of Law is to survive in the hostile

atmosphere of military absolutism.

I now proceed to make brief reference to cases in each group mentioned above.

Group 1.

In Fawehinmi v. IGP, 53 Olusola Thomas J., has to consider whether Chief Gani

Fawehinmi had been validly detained under Decree No. 2. Having satisfied

himself that the Chief of General Staff signed the Order, the learned Judge held

that his jurisdiction has been ousted in these words: “… once one arrives at a

point that the Chief of General Staff pursuant to the exercise of his powers under

Decree No. 2 of 1984 makes detention order, the Court shall be precluded …

from adjudication on any act, matter or thing done or proposed to be done in

pursuance of the Decree”

In Jennifer Madike v. IGP and Ors, 54 at the trial (High) Court level, Obadina J.

also refusing to examine the validity of detention order on the petitioner, held that

he was precluded from doing so by he combined effects of Decrees No. 2 and 13

of 1984. He continued as follows:

“There is no doubt that the Detention Order being challenged was

made or purported to have been made under the provision of

section 1(1) of the State Security (Detention of Persons) Decree

No. 2 of 1984: and for the Court to proceed to declare it invalid

would ipso fact render its own decision also null and void by virtue

of section 1(2) (b) (1) of the Federal Military Government

(Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”

52

(1971) 1 UILR. 201 53

Unreported No. M/3141/89 of 31/7/89 54

It should be noted that this type of capitulation and abdication of judicial

responsibility goes even further than the decisions in Fawehinmi v. IGP and

Wang Ching-Yao v. Chief of Staff, Supreme Headquarter. The Court is here

stating not merely that its jurisdiction is ousted, but that any decision it gives

following any inquiry into the validity of the detention order would be null and

void. Normally Judges who wish their hands off such cases simply state that

they lack jurisdiction. Thus in the Fawehinmi case, the Court simply held that the

ouster clause in Decree No. 2, precluded it from adjudicating or the matter. Even

in the infamous Wang Ching-Yao, al the Court of Appeal stated was that the

proceedings should be struck out for lack of jurisdiction, and that on the question

of civil liberties, the combined effect of Decrees 2 and 13 of 1984, is that the Law

Courts of Nigeria must as at that time, blow muted trumpets.

For a Court to go further and make a hypothetical Ruling that any decision which

it might give in the case would be null, void and of no effect, is to invite the

Military Executive to trample on the Rule of Law.

Of course there is at least one precedent for what is surely a self-imposed judicial

castration. That is the judgment of Kazeem J., (as he then was) in E.O. Eyo v.

Chief of Staff of the Armed Forces55 Whilst striking out an application for Habeas

Corpus, the learned Judge held thus:

“There is no doubt that the Detention Order being challenged here

is an instrument made under section 3(1) of Decree No. 24 of 1967,

(similar to Decree No. 2 of 1984) and for me to proceed to declare it

invalid will ipso fact render my own decision null and void….”

A similar approach to the issue was evident in Justice Rosaline Ukeje’s Ruling in

Bafiua v. General Sani Abacha & Ors.56 Wherein the learned Judge declined

Jurisdiction on the basis of Decree 12 of 1994. The Plaintiff who was president

55

Nigerian Law of Habeas Corpus p. 80 56

of the Nigerian Labour Congress, had brought the action to challenge the

purported dissolution of the Executive Council of the NLC, by General Sani

Abacha on 17th August 1994. Whilst the Case was still pending, the Military

Government promulgated Decree 12, 1994. The Judge nevertheless quickly

applied its provisions and held herself barred from jurisdiction in the Case.

Group 2.

We now proceed to the second group of cases. These are the cases in which the

Court, whilst not questioning the power of the appropriate authority to issue a

detention order insists that the detention must fully comply with the provisions of

the enabling Decree, otherwise it is null and void. Thus in Agbaje v.

Commissioner of Police (High Court),57 where a detention order, was made

under Decree (No. 24 of 1967) similar to Decree No. 2 of 1984, Aguda J, (as he

then was) was called upon to make a pronouncement on the validity of the order.

Before proceeding to do this he stated that for a detention order to be valid, it

must satisfy some specific conditions precedent. There were:

(1) The Inspector General must be satisfied that the applicant was

concerned in acts prejudiced to the public order, or

(2) He must have been satisfied that the applicant had been recently

concerned in acts prejudicial to the public order, or

(3) He must have been satisfied that t he applicant was in preparation

or instigation of acts prejudicial to the public order.

It was only after being satisfied on any or all of these grounds that the Inspector

General could make a valid detention order. In this case all that was stated in

the detention order was that it was in the interest of the Federation of Nigeria. It

did not state that the applicant was concerned with any act prejudicial to the

public order. The Court accordingly declared the detention order to be null and

void, and the detainee was released. The Court of Appeal of Western State,

57

Nigerian Law of Habeas Corpus p. 36 at 38 – 39.

confirmed the lower Court’s judgment on appeal. The heavens did not fall. The

Courts decision was not rendered ipso facto void simply because it did its duty.

Again in Agbaje’s case the detention order stated that he should be detained in

civil Prisons. On he contrary however, the applicant was detained at the time of

the trial at a Police Station. For this reason, the detention was held illegal on a

second ground. Again, the order was held illegal on a third ground. The order

was not addressed to a particular prison station as the enabling Decree implied.

In this case, as an interim order, the learned Judge had earlier granted bail to the

applicant on a Saturday Order on him. Commenting on this flagrant act of

illegality, Aguda J., declared:

“It is hardly possible for me or anymore who has anything to do with

the administration of justice to imagine any greater disrespect to

nay, contempt of a High Court. And this particular contempt is the

most dangerous too the fabric of the judicial system, or even if I

may say no, to the whole of our system of Government, coming as

it is does from officers responsible for the execution of Court

Orders. We have not got to the point where the Court is

subservient to the police, and the Inspector-General of Police felt

himself called upon to sit as a Court of Appeal to this Court.”