The Armed Forces of the Federation ruled Nigeria from 1966-1979 when it was succeeded by a democratically elected government. This government was toppled in 1983 when the Armed Forces again assumed power until 1992 when the Military Ruler “stepped aside”. 

The succeeding Civilian-Military diarchy was dismissed few months later and the military perpetuated itself in power until 29 May 1999 when democracy was eventually restored.

During the military hegemony, a portion of Eastern states attempted unsuccessfully to secede. But the secession bid collapsed in 1970, after three years of armed struggle.

These events have had serious implication for the legal framework with which the Nigeria Legal system operated. This is the focus of this lecture.

At the article, you are expected to be able to assess the validity or otherwise of Military incursion into governance of the Federal.

Military Government

The term, “Military Government” refers to a government, which acquires the power to govern as a result of a successful revolution or a coup d’etat. A revolution is an abrupt political change not within the contemplation of the Constitution. It is a successful rebellion, an overthrow of existing government usually resulting in some fundamental political change. A revolution need not necessarily be violent. It can also arise by peaceful methods.

On January 16, the acting President of the Federation, Dr. Nwafor Oriza in a nation-wide broadcast was heard to say:

“I have to night, been advised by the Council of Ministers that they had come to the unanimous decision voluntarily to hand over the administration of the country to the Army Forces of the Republic with immediate effect … It is my fervent hope that the new administration will ensure the peace and stability of the Federal Republic of Nigeria and that all citizens will give them their full cooperation”

The Military was also heard to respond; saying:

“the Government of the Federation having ceased to function, the Nigerian Armed Forces have been invited to form an interim military government for the purpose of maintaining law and order and of maintaining essential services. This invitation has been accepted and I, General J. T. U. Aguiyi Ironsi, the General Officer Commanding the Nigerian Army have been formally invested with the authority as Head of the Federal Military Government and Supreme Commander of the Nigerian Armed Forces.”

Thus, in January 1966, the Armed Forces of Nigeria assumed effective control of government machinery and began a chain of governments, bringing about a fundamental restructuring of the Nigerian Polity.

There were a number of successive military governments. That is one revolutionary regime overthrowing another revolutionary regime. Such were the changes in July 1967 and 1975, December 1983, August 1985 and September 1992. 

There were also a number of failed coups. Similar events were taking place across Africa: Congo (1961-2), Egypt (1952), Sudan (1958), Southern Rhodesia (now Zimbabwe) (1965), Ghana (1966), Sierra Leone (1968), Uganda (1966), Lesotho (1970) etc.

In some other jurisdictions which also experienced to some disorder, the Army had behaved differently. After Mikhail Gorbacheu had been unseated, there was a vacuum but the Armed Forces resisted the temptation to assume power in USSR. After the Court had annulled the election of Mrs. Indira Gandhi, there was a state of emergency. In fact the Indian army was invited to take over governance but they declined on the ground that their role is not to govern but to protect the internal and external security of India.

We shall attempt to examine the legal basis of military intrusion and the value the regimes have placed on the legal system and its institutions.

Also read: The Nigerian Legal System under the Military Government

The Legislative Authority

Upon ascension to and assumption of state power, the military rulership immediately promulgated a decree. The example is the Constitution (Suspension and Modification) Decree – otherwise called Decree No. 1 of 1966.

The decree provided that:

(a) The provisions of the Constitution of the Federation mentioned in Schedule 1 of the Decree were suspended.

(b) The provision of the Constitution, which are not suspended shall have effect subject to the modifications specified in Schedule 2.

(c) (i) The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever

(ii) The Military Governor shall not have power to make laws with respect to any matter included in the Exclusive Legislative List

(iii) Except with the prior consent of Federal Military Government, the Governor of a State Shall not makes law in respect of any matter included in the concurrent legislative list.

(iv) Subject to the fore-going the military governor of a state shall have power to make laws for the peace, order and good government of that state.

(d) The decrees conferred on the Military, powers to make laws “with respect to any matter whatsoever” for the whole of Nigeria or any part of it.

The Decree also provided that: “This Constitution shall have the force of law throughout Nigeria and if any other law (including the Constitution) is inconsistent with this Constitution, this Constitution shall prevail and that other law shall, to the extent of inconsistency be void. Provided that this Constitution shall not prevail over a decree and nothing in this Constitution shall render any provision of a decree void to any extent whatsoever”

(e) No question as to the validity of this or any Decree or by any Edict shall be entertained by any Court of Law in Nigeria.

The Military dismissed the pre-existing legal order and its legislative organs and conferred upon themselves wide powers, and prescribed for themselves, their roles, and functions.

The Constitution (Suspension and Modification) Decree No. 1 of 1984 and the Constitution (Suspension and Modification) Decree No. 107 of 1993 as well as the Federal Military Government (Suspension and Enforcement of Powers) Decree No. 12 of 1994 were replications of Decree No. 1 of 1966. These decrees constituted the legal bases of the respective dispensations.

Each gave the enacting military regime its constitution comprising:

(i) The Constitution ((Suspension and Modification) Decree

(ii) The Unsuspended provision of the existing Constitution

(iii) Any Modification by subsequent Decree.

The implication is that the Constitution 1963 which hitherto was supreme has ceased to be. The New regime owed no allegiance to it. The Constitution (Suspension and Modification) Decree together with the unsuspended provision and other modification to the pre-existing constitution more or less constituted prevailing self-imposed restraints on the Military Administration.

The Executive Authority

In the Military Regime, the executive authority of the Federal Republic of Nigeria vested in the Head of the Federal Republic of Nigeria. He exercised the powers either directly or through persons or authorities subordinate to him. He is empowered to delegate conditionally or unconditionally executive function of the state to the military governor. The Military appointed the members of Supreme Military Council, which made laws and a Federal Executive Council which carried out executive functions.

General Murtala Mohammed/Obasanjo regime (1975-79) similarly vested executive authority on the Head of the Federal Military Government, such authority being exercisable by him in “consultation with the Supreme Military Council”. The question whether there has been any consultation with the Supreme Military Council with respect to any exercise of the executive authority of the Federal Republic of

Nigeria shall not be enquired into in any court of law. (S. 5(2))

The Head of Federal Military Government may delegate to the Governor of a state executive functions falling to be performed within that state in relation to any matter. The Military Government or other delegated authority is at liberty to delegate to another (S. 7(6)).

Also read: Idea of law: Schools of Thought

The Judicial Authority

Judiciary is the branch of governance invested with judicial powers, the system of Courts, the body of judges, the Bench, that branch of government, which is intended to interpret, construe and apply the law.

The Federal Military Government set up an Advisory Judicial Committee consisting of the Chief Justice of Federation, Chief Justices of the Regions, and the Grand Kadi of the Sharia Court of Appeal and the Attorney-General of the Federation. The Solicitor-General served as its Secretary.

The Supreme Military Council, after consultation with the Advisory Judicial Committee appointed judges of Superior Courts (i.e. The Supreme Court, the West State Court of Appeal, the Northern States Sharia Court of Appeal and the Court of Resolution and the High Courts of the Federation).

This procedure was further altered by the Constitution (Amendment) Decree No. 5 of 1972, which conferred on the Head of State, the power to appoint and dismiss the Chief Justice of the Federation.

Any Court of Law, authority or office which was established, and any appointment which was made and any other thing which made pursuant to the Constitution, the provision of which had not been suspended or modified are deemed to have been duly established.

The Constitution (Suspension and Modification) Decree preserved Chapters III and VIII of the Constitution: Chapter III contained Fundamental Rights provision. This included Sec. 22, which provided that “In the determination of his civil rights and obligations, 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 manner as to secure its independence and impartiality.”

In its Chapter VIII, the Constitution provided for:

– Establishment of the Supreme Court and of High Court of Lagos

– Appointment and Tenure of Office of Judges of the Supreme Court and judges of the High Court (with minor amendments)

– Questions as to Interpretation of the Constitution

– Appeals to Supreme Court from High Courts and from Sharia Court of Appeal and Court of Resolution.

– Finality of determinations of the Supreme Court

– Powers, Practice and Procedure of Supreme Court

– Appeals to High Court of Federal Territory from subordinate courts

– Special provision as to Regional Courts of Appeal.

– Oath to be taken by Judges.

Despite the overwhelming military nature, the government elected as a matter of deliberate policy to honour not only civil liberties (apart from few restrictions on political liberty) but also conditions of a free society and rule of law, avoiding situations of police state and regimentation of individual life. See the case of Government of Lagos State v. Ojukwu (1986).

The Military bound themselves to observe the United Nations Declaration of Human rights which enjoined member-countries to protect human rights by the Rule of Law if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression. The Judicial picture of the nature of military administration has not made matters clearer, as we shall see in the next lecture.

Also read: What is law? and its Characteristics

Conclusion on Lawmaking process in Military Regime in Nigeria

In further consideration of the Nigerian Law making processunder the Federal Military Government in this unit, you revisited the vexed issue of separation of powers and the legal implication of a Military Government. You are probably thrilled when thinking of the events in January 1966 – whether it was a transfer of power or a revolution – and how the Military used the Nigerian legal system to resolve it.

A revolution occurs whenever the legal order of a nation is nullified and replaced by a new order in an illegitimate way – that is, in a way not prescribed by the first legal order itself.

Opinion of the nature of military administration has been divided; among

(i) Advocates of abrupt change of existing legal order for unlimited government of force,

(ii) Advocates of continuity of existing legal order despite military intervention

(iii) Advocates of subjection of military to rule of law, despite the change.