Nigeria’s chequered history is replete with elimination of democratic government by substitution with military authoritarian rule which went unabated for three decades after her independence on October 1, 1960.
But since May 29, 1999 till date, a democratically elected government has been in place in Nigeria, spanning over two decades of uninterrupted democratic governance in the country.
The first military government in Nigeria was installed on January 16, 1966 after a partially successful coup on 15 January 1966. The General Officer Commanding the Nigerian Army (GOC), Major-General J.T.U. Aguiyi-Ironsi, who survived the killing spree rallied forces to foil the coup.
According to the ‘’Government Notice no. 147 of 26 January 1966’’, the President of the country, Dr. Nnamdi Azikiwe, who also survived the coup was in Britain ‘’convalescing’’. In the ensuing confusion, on 16 January 1966, the then Speaker of the Federal Parliament and Acting President, Dr. Nwafor Orizu, announced that he: … ‘’had tonight been advised by the council of ministers that they had come to the unanimous decision to voluntarily hand over the administration of the country to the Armed Forces of the Republic with immediate effect’’. He expressed the hope that the administration ‘’will ensure the peace and stability of the Federal Republic of Nigeria and that all citizens will give them their full cooperation’’.
Also, the ‘’Government Notice no. 148 of 26 January 1966’’ states that Orizu called on the GOC to address the nation. The GOC then informed the country that: ’’The government of the federation having ceased to function, the Nigerian Armed Forces have been invited to form an interim military government for the purposes 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 authority as Head of the Federal Military Government, and Supreme Commander of the Nigerian Armed Forces’’.
Judiciary Faults Military Rule
The implications of these declarations and the events that preceded them between 15 and 16 January 1966 subsequently became the subject matter of litigation before the Supreme Court of Nigeria; especially in the case of Lakanmi v. Attorney-General (West) SC. 58/69 of 24 April 1970, (1974) East Central State.
Supreme Court judgement in this matter on April 24, 1970 bravely questioned more fundamentally the constitutional basis of military Decrees and Edicts, in essence the continued military rule in the country.
It was a case in which the Supreme Court saw the Yakubu Gowon administration as a temporary emergency regime which lacked the competence to make laws not justified by the necessity of the circumstances.
Lakanmi was a public officer during the Gowon regime. He was allegedly cited for corrupt practices and the Western State Military Government sought to investigate his assets and that of other public officers in 1970. In the process, a Commission of Inquiry was set up. After the probe, the Commission of Inquiry found Lakanmi and others guilty of corruption. It recommended the forfeiture of their assets to the military government.
Lakanmi and others were aggrieved by the panel’s verdict. They therefore made an application to an Ibadan High Court for an order of certiorari to quash the order of the tribunal, contending that the Public Officers and other Persons (Investigation of Assets) Edict No 5 of 1967 under which the order was made was invalid because of its inconsistency with the Public Officers (Investigation of Assets) Decree of 1966. The High Court dismissed the motion and held that the Edict was validly made and that since it ousted the jurisdiction of the court, the validity or otherwise of the order could not be challenged. Lakanmi and others’ lodged an appeal to the Western State Court of Appeal and it was equally dismissed. In-between the decisions of the High and appellate courts, the Federal Military Government (FMG) promulgated three Decrees obviously in favour of the respondent.
One of the decrees was Decree No 45 of 1968 which validated all orders made under any enactment and ousted the jurisdiction of the courts from questioning the validity of any decree. It also excluded the application of fundamental human rights provisions in the Constitution and abated all pending proceedings in respect of any Decree.
At the Supreme Court, the appellants through their counsel, Chief F.R.A Williams’ submitted that the FMG was not a revolutionary government but a constitutional interim government which came into being by the wishes of the representatives of the people and whose object was to uphold the constitution excepting in so far as it had derogate from it under the doctrine of necessity whereby it was granted the power.
They also said the FMG must ensure the continued existence of the Constitution and a Decree prevailed over the Constitution only to the extent of that Decree, if validly made, could amend the Constitution and that the order of the assets tribunal was not validly made.
Another argument canvassed was that since Decree No 45 of 1968 sought to validate government action, the Decree was a usurpation of judicial power as it deprived the appellants of their property without compensation by a legislative act.
But the Attorney-General, Western Region argued that once a Decree was signed by the Head of the FMG it could not be challenged as no court had jurisdiction to adjudicate on the validity of a Decree.
It was further submitted that the FMG was a revolutionary government which came into existence as a result of the incident of January 15, 1966, and that accordingly, it had an unfettered right to rule by force and by means of Decrees.
Specifically, the Supreme Court was faced with the issue of the legal effect of Dr. Nwafor Orizu’s abdication. Another fundamental question raised was whether the coup was a revolution overthrowing the 1963 Constitution with the result that the military government could rule outside constitutional restraints?
Chief Williams argued that it was not a revolution but a constitutional abdication under the implied doctrine of necessity. The court held that the abdication was limited to saving Nigeria from immediate crisis and so Gowon could not forcefully deprive the appellants of their property by ad hominem decrees contrary to the 1963 Constitution.
Although the Gowon regime soon ‘annulled’’ the judgment with the FMG (Supremacy and Enforcement of Powers) Decree No 28 of 1970, some restraints was observed during successive regimes as there were no wide scale withdrawal of fundamental rights by force of decrees, apart isolated practical excesses. However, the effectiveness of the Decree, the peculiar provisions of which force the ‘grundnorm’ of all subsequent military governments till 1999, confirmed that the 1966 event was a legal revolution that effectively annihilated the 1963 Constitution.
In its judgment on April 24, 1970, the Supreme Court led by the then Chief Justice of Nigeria, Sir Adetokunbo Ademola, declared the Decrees and Edicts confiscating such property void. Interestingly, the panel of the apex court also comprised Sir Udo Udoma among other jurists.
The Supreme Court held that since the FMG, as the supreme legislative body had by Decree No 51 of 1966, enacted what was the law covering the investigation of assets of public officers, which was operative throughout the country, any state enactment such as Edict No5 of 1967 on the same subject matter was ultra vires and void under the doctrine of covering the field.
It also held that the FMG was not a revolutionary government but an interim government of necessity.
The Supreme Court said ‘’ what happened in Nigeria in January 1966 is unprecedented in history. Never before, as far as we are aware, has a civilian government invited an army take-over or the armed forces to form an interim government.’’
‘’We venture to put the attitude of the Acting President and the Council of Ministers to the head of the army thus –‘your men have started a rebellion, which we fear may spread; you have the means to deal with them. We leave it to you to deal with them and after this, return the administrative power of the government to us’’, the Supreme Court held.
The judgment of the court struck at the root of the military government in power, and also generated considerable popular feelings among scholars, lawyers, jurists and human rights activists.
The military regime, which was seriously rattled by the decision reacted tersely by promulgating decree No 28 of 1970, which had the effect of nullifying any decision of any court in any part of the Federation whether given before or after the passing of the Decree.
Decree No 28 of 1970 states: It is hereby declared that, (b) any decision, whether made before or after the commencement of this Decree by any court of law in exercise or [purported exercise of any powers under the Constitution or any enactment or Law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not in inconsistent with the provision of the Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of making thereof.’’
The regime promptly nullified the effect of this Supreme Court decision through the Federal Military Government decree.
Illustrative of this legislative aberration is the Constitution Suspension and Modification Decree No.1 of 1966 (the Supremacy Decree), which provided: “… the Federal Military Government shall have powers to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.” Modifying the 1963 Constitution then in operation, section 1 (1) of the Supremacy Decree further provided:
‘’This Constitution shall have force throughout Nigeria …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’’.
It might be pointed out that Decree No 105 of 1979 titled: the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc) has repealed decree No 28 of 1970.
However, successive military regimes ensured passage of a military decree to assert the supremacy of their legislation over provisions of the Constitution shortly after each coup d’etat in the country.
Twice in its history the army had seized power from democratic government and on each occasion claimed to do so in order to uphold and maintain the rule of law. First, the military pogrom of January 15, 1966 which seized power from Prime Minister Abubakar Tafawa Balewa after killing him, secondly General Muhammadu Buhari’s military coup on December 31, 1983 that ousted Alhaji Shehu Shagari from power.
Grundnorm of Constitutional Supremacy
Constitutional theory commonly holds that a supreme constitution is a sine qua non for the rule of law to prevail in a federal polity.
The necessity for constitutional supremacy has been a feature of Nigerian constitutions and has been restated in the very first section of the 1999 Constitution of the Federal Republic of Nigeria (the Constitution). Section 1 (1) provides that the Constitution is supreme and its provisions shall have binding force on authorities and persons throughout the Federal Republic of Nigeria. Call this the ‘Supremacy Clause.’ Section 1(2) states that the country must be governed only in accordance with the Constitution. In apparent unequivocal reinforcement of the Supremacy Clause, section 1(3) further provides that in the event any other law is inconsistent with the provisions of the Constitution, “this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
The military in some instances suspended parts of the Constitution and, in others, passed decrees that it declared (and were judicially upheld) as superior to it
Throughout the military era, the judiciary hovered between complicity and complacency in the controlling governance of the country while maintaining its position as the only state organ that did not experience institutional truncation or disruption.
The country has now had its longest experience of civil governance in its post-independence history. But there are hang-over effects. Rising crime rates, poverty, unemployment, the deplorable state of social infrastructure, and the failure of justice measures for past victims of gross violations of human rights have all challenged an otherwise welcome political transition.
After an initial halfhearted attempt at rescuing the principle of constitutional supremacy from the assault of military rule, the Supreme Court succumbed to blowing muted judicial (and constitutional) “trumpets” for the better part of three decades. Thus, with the acquiescence of the judiciary, emergency legislation and exceptionalism became instituted as standard mode of governance in the country. However, with the advent of political change, the Courts’ revert to their power of ‘’judicial review’’ have become more assertive of the imperative of constitutional supremacy, particularly in the resolution of intergovernmental disputes and political contestations, a prominent aspect of the 20 years of uninterrupted democratic practice in Nigeria between 1999 and 2019. This has particularly ensured the sustenance of the democracy in the longest time ever in the country. A number of cases decided by the Supreme Court which is constitutionally recognized to adjudicate on intergovernmental matters illustrate this point.
Decided Judicial Cases Under Democratic Rule
In Attorney General of Abia State & 2 Ors v Attorney General of the Federation and Ors (Revenue Monitoring case), the issue before the Court was the constitutionality of the Local Government Revenue Monitoring Act passed by the National Assembly. The plaintiff states argued that the Act, which provided for direct disbursement of local government allocations from the federal account and monitoring of the process by federal authorities, amounted to undue interference with their powers over the matter of local government political and fiscal administration as recognized under section 7, among others, of the Constitution.
The main purpose of the Revenue Monitoring Act was purportedly to ensure allocations from the Federation Account were properly distributed to the local governments. This was an important policy objective considering that the deplorable state of infrastructure in the country is largely traceable to misappropriation of public funds. There was a need for initiatives to check corruption in the country. Local authorities have had a notoriously poor record of performance in governance over the years and the proper delivery of federal allocations which forms the bulk of their resources was an important factor in the state of affairs.
The Court upheld the case of the plaintiffs. It emphasized that legislative action, no matter how laudable, must be kept within constitutionally prescribed limits, because legislative powers and functions are “not at large.” Justice Niki Tobi in the lead judgment emphasized the significance of the Supremacy Clause, which mandates all three arms of government to conform to the provisions of the Constitution. Referring to various dicta in Attorney-General of Ondo State v Attorney-General of the Federation and Others (ICPC case), the Court reiterated its support for the anticorruption policy of the political branch. It however maintained that the initiative must be conducted within constitutionally sanctioned limits.
In the more recent case of FAITH OKAFOR V. GOVERNOR OF LAGOS STATE & ANOR. (2016) LPELR-41066 (CA), the Governor of Lagos State issued a directive restricting the movement of citizens and residents during the State’s monthly environmental sanitation, the Court of Appeal unanimously held that the Appellant, Faith Okafor, could not be arrested or prosecuted for disobeying or flouting the Executive Order or Directive of the Governor of Lagos State because the Appellant could only be arrested and prosecuted for an offence that is prescribed in a written law.
In his concurring judgment, BIOBELE ABRAHAM GEORGEWILL, J.C.A. at p 46-47 declared thus: “It is my view, that democracy thrives more on obeying and promoting the rule of law rather than the whims and caprices of the leaders against the lead. I find the conduct of the Respondent in not only persecuting the Appellant, yes that is what in my view it amounts to when a free Citizen of this great Country such as Citizen Faith Okafor, is put through the rigours of criminal process for an offence not prescribed in any written law but merely on the directive of the Governor of the Lagos State. An action which if allowed to thrive in a democracy such as ours could confer on such office holders infinite, absolute and autocratic powers contrary to the clear provisions of the Constitution of the land, to which both the leaders and the led are subject. I refuse to allow such autocratic, absolute and infinite powers to fester upon our nascent democracy.”
Settlement Of Election Disputes
It has been observed that the absence of election petition tribunals in 1959 and 1964 largely attributed to the near unmanageable crisis which trailed the federal elections conducted in those years.
Take for instance, on December 12, 1959, a federal elections into the federal House of Representatives was conducted to usher in the country’s independence on October 1, 1960. While Azikiwe and Awolowo relinquished their premiership to Michel Opara and S.L.Akintola respectively to go to the federal level in Lagos, their counterpart in the north, the Sardauna of Sokoto did not leave, thus leaving the federal level to his deputy, Alhaji Abubakar Tafawa Balewa. Both Awolowo and Azikwe took part in this federal election with their desire to become the first prime minister of an independent Nigeria.
The result showed that out of a total 7,628,847 votes cast, voter turnout of 79.5%, Action Group had 1,992,364 (26.1%) and won 73 out of a total 312 seats. NPC got 1,922,179 (25.2%) votes but won 134 seats out of the 312 seats. NCNC won 89 seats as well. NPC formed a coalition with five other parties and two independents, holding a total of 148 seats.
However, the NPC and the NCNC formed a coalition government in which Balewa became Prime Minister of the independent Nigeria while Azikiwe became the Governor-General. Awolowo settled for the position of Leader of Opposition in the Federal House of Representatives while the deputy leader of the Action Group, Chief SL Akintola, remained premier of the Western Region. Although, if there was an election petition tribunal Awolowo would have opted to contest the election result because he felt he won the highest number of votes during the election while the NPC won the highest number of seats in the country.
On December 30, 1964, elections were held in the Northern Region, in many parts of the West and in some parts of the Mid West. They were completely boycotted in the East. The results that were eventually released showed that the N.N.A. had won 198 seats and the U.P.G.A only 40 seats.
As a result of massive boycott of the 1964 general elections in some parts of Western, Midwestern and Eastern regions, the elections were not held until March 18, 1965. It was an election that took the country to the brink and even kick-started the crisis that eventually snowballed into the 30-month Nigeria/Biafra war.
However, the 1999 Constitution provides for adjudication of the process leading to election disagreements and disputes over election results through the regular court and the electoral petition tribunals.
The Constitution further mandates the President of the Court of Appeal to constitute election petition tribunals that shall seat over petitions filed against the election results into the seats of the President, Vice President, senate, House of Representatives, Governorship, state Assembly and the Local Government Councils nationwide.
The Constitutional provisions for election petition tribunal and subsequent Electoral Act drawn by the National Assembly to provide instruments for the judiciary to settle electoral disputes have unarguably contributed immensely to reliance on courts instead of self-help or violence to protest results declared by the authority or electoral umpire.
These are best illustrated by landmark judicial interventions to behold in the country. On October 25, 2007, the Supreme Court on AMAECHI v INEC  5 NWLR [PT.1080] 227 resolved the issue of the wrongful substitution of candidates of Political Parties during elections. The Court held that Amaechi was wrongly substituted with Omehia by PDP and that in the eyes of the law, Amaechi who didn’t contest the election was at all times the legal candidate of PDP at the elections, and proceeded to declare him as Governor of Rivers State.
Amaechi who won Rivers state PDP governorship primary in December 2006 was substituted with Omehia, and early in 2007, Amaechi filed a suit challenging his substitution against the April 14, 2007 elections.
When Celestine Omehia went back to ask the apex court to reverse itself on the grounds that it amounted to a mistake for a person whose name was not in the ballot paper to be declared winner of an election, and their lordships punished further by awarding N100,000 cost against him, saying even if it was a mistake, the apex court has a right to make a mistake.
Supreme Court had on February 12, 2019 finally struck out all pending appeals challenging the judgement of the Port Harcourt Division of the Federal High Court which barred the APC from fielding candidates in the 2019 general elections.
Justice Olabode Rhodes-Vivour led 5-man panel followed the apex court judgement of February 8, 2019 which upheld the order of a Federal High Court, Port Harcourt, nullifying the APC primaries in Rivers State.
The trial court had held that the primaries were held in disobedience to a court judgement barring the party from conducting congresses pending the determination of a suit filed by 22 aggrieved members of the party.
Again, Supreme Court on May 24, 2019 nullified the elections of all the candidates of the APC in Zamfara State in the 2019 general elections.
Delivering a unanimous judgment of the five-man panel led by the Acting Chief Justice of Nigeria, Justice Tanko Muhammad, the apex court declared the first runners-up in the 2019 general elections in the state as the winners of all the posts earlier declared to have been won by the APC and its candidates.
Justice Paul Galinje, who read the lead judgment upheld the decision of the Sokoto Division of the Court of Appeal to the effect that the APC did not conduct any valid primary election and as such had no candidate for any of the elections in the state.
He described the votes polled by the APC candidates in the elections as wasted, adding that the party and the candidates with the second highest votes and the spread in the various elections were the valid winners.
In other words, the 36 positions including governor and his deputy’s seats, 3 senate, 7 Reps members and 24 state House of Assembly seats were lost in one swoop to the PDP by the APC.
The Courts has employed an expansive interpretation of existing texts, such as the Supremacy Clause and the Good Governance provisions of the Constitution, to mediate critical political disputes in the post-military rule period. In this process, the Courts have to some degree articulated a jurisprudence to meet the needs of the political stability of the nation. In particular, its innovative take on the interpretation of the relevance and status of the fundamental objectives and directive principles of state policy has signaled a promising break with the conservative jurisprudential attitude of the past.
The judiciary is the most prominent institutional body that guarantees the continuation of efforts at democratization. The rule of law determines the legitimacy of a state. In this regard, an independent judiciary would allow the dismantling of any ineffective institutions that are obstacles to democratic consolidation.
Moreover, the judiciary is the only body that guarantees the maintenance of the rule of law. For this reason alone, the relationship between the legal system and democratic consolidation is a vital part of democratisation since the judiciary functions as the primary guarantor of the rule of law and the separation of powers.