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ABSTRACT Legislative power is simply the law making powers of a legislative body whose primary functions includes power to make new laws, alter existing ones, guard and repeal laws. The legislature has the constitutional prerogative to make laws and that power is reposed exclusively in such body even though it may be delegated to some agencies in the Executive department for operational conveniences but the ultimate legislative authority is vested on the legislature and within this context, it is able to maintain its control over all delegated legislative activities. Legislators are the authors of statutes and the ordinances are issued by the heads of the Executive under a specific constitutional power and subject to constitutional limitations which are severe. This paper contrasts the legislative powers of a Military Government with that of a Civilian Government. The paper argues that whereas the law-making powers of a civil legislature is limited by the doctrine of checks and balances; that of a military government is very extensive. The paper presents theoretical adumbrations on the nature of bills and degrees, while noting the differences in their manner of execution and enforcement. The paper concludes that military rule or dictatorial government is an aberration of all the well-known and well-tried norms of constitutional law and is thus undesirable in any body polity and accordingly submits that it is not possible to operate a constitution properly so-called under military rule or any dictatorship by whatever names it is called.
1 CONTRASTING RULE-MAKING IN A CIVIL ADMINISTRATION WITH RULE-MAKING UNDER A MILLITARY REGIME, IN NIGERIA By DURU, ONYEKACHI WISDOM CEAZAR* Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. ABSTRACT Legislative power is simply the law making powers of a legislative body whose primary functions includes power to make new laws, alter existing ones, guard and repeal laws. The legislature has the constitutional prerogative to make laws and that power is reposed exclusively in such body even though it may be delegated to some agencies in the Executive department for operational conveniences but the ultimate legislative authority is vested on the legislature and within this context, it is able to maintain its control over all delegated legislative activities. Legislators are the authors of statutes and the ordinances are issued by the heads of the Executive under a specific constitutional power and subject to constitutional limitations which are severe. This paper contrasts the legislative powers of a Military Government with that of a Civilian Government. The paper argues that whereas the law-making powers of a civil legislature is limited by the doctrine of checks and balances; that of a military government is very extensive. The paper presents theoretical adumbrations on the nature of bills and degrees, while noting the differences in their manner of execution and enforcement. The paper concludes that military rule or dictatorial government is an aberration of all the well-known and well-tried norms of constitutional law and is thus undesirable in any body polity and accordingly submits that it is not possible to operate a constitution properly so-called under military rule or any dictatorship by whatever names it is called. 2 INTRODUCTION In any democratic setting, the law-making power certainly and indeed rightly belongs to the legislature. This body is represented in Nigeria in the form of National Assembly, made up of Senate and House of Representatives and Houses of Assembly at the Federal and State levels, respectively.1 Their equivalent is the Congress in the United States of America and Parliament in Britain. Law-making in a democratic setting is governed by the constitution and civil laws which are reasonably justifiable in a democratic society. On the other hand, in a military regime, legislative power2 belongs to a ruling military council with unlimited powers to make and repeal laws for the peace, order and good government of the country with respect to any matter whatsoever.3 The purpose of this academic paper is to compare and contrast, with the aid of recent decisions and other locus classicus, rule making in democratic dispensations and under military regimes in Nigeria. CONCEPTIONAL CLARIFICATIONS This segment attempts to clarify the contextual connotations of certain key phrases inherent in the topic under consideration. The first is the phrase rule-making. * Contact: Email: firstname.lastname@example.org; Tel: +234-8037707496 1 See section 4 of the Gazetted Amended Constitution of the Federal Republic of Nigeria, 2011 hereinafter referred to as “The Constitution”. See also, T. O. Oyelami, “The Challenges of Controlling Administrative Legislation in Nigeria”, available online at www.nials-nigeria.org/journals (accessed 11/08/2012). 2 The term “Legislative Power” can be defined as “the law making powers of a legislative body whose functions include the power to make, alter, amend and repeal laws. In essence, the legislature has the power to make laws and such power is reposed exclusively in such body, though it may delegate rule-making and regulatory powers to departments in the executive branch. It may not however delegate it law making powers”: K.M. Mowoe, Constitutional Law in Nigeria (Lagos: Malthouse Law Books, 2008) at 82. See also A. Garner (Ed) et al. Black’s Law Dictionary Eight Edn. (USA. Thomas West Inc. 2004) at 919, where the term legislative power is defined as “the power to make laws and to alter them, a legislative body’s exclusive authority to make, amend, and repeal laws”. 3 See for instance, s. 2(1) of the Constitution (Suspension and Modification) Act Cap. 64 LFN 1990. 3 This phrase has been defined as “the process used by an administrative agency to formulate, amend or repeal a rule or regulation”.4 This, it is respectfully submitted, does not reflect the meaning of the term in this paper. This paper undertakes an enquiry in the realm of constitutional law and not administrative law. Accordingly, it is suggested that the phrase as used in the present context should denote law-making not rule-making. This is an appropriate denotation suitable for the purpose of the academic enquiry embarked upon by this paper and the usage of the term in this paper accords thereto. Again, whereas the phrase democratic dispensation refers to a system of governance characterized by supremacy of civil laws made by civilian elected representatives of the people in parliament;5 military regime “is necessarily a regime of force. Its manner of coming to power is invariably by a forcible subjugation and replacement of a pre-existing order in a way not contemplated by such old order. From whichever angle it is viewed, it is a violation of constitutionalism.”6 A military regime involves rule by armed forces that do not come to power through election but by force of arms. These are the contextual meanings of the phrases in this paper. RULE MAKING UNDER NIGERIA CIVIL ADMINISTRATIONS Law-making under the Parliamentary system, as was the case under the Republican Constitution of 1963, is the function of Parliament at the centre and the Regional Legislature in each region. Parliament consisted of the President, a Senate and a House of Representatives, while each Regional Legislature consisted of a 4 A. Garner (Ed), op. cit at 1357. This is the ultimate dictionary for our conceptual clarifications. 5 See E. Malemi, The Nigerian Constitutional Law (Lagos: Princeton Publishing Co., 2006) at 56 for a similar view. 6 A. Ojo, Constitutional Law and Military Rule in Nigeria (Ibadan: Evans Brothers (Nig.) Publishers, 1987) at 242-243. 4 Governor, a House of Chiefs and a House of Assembly. In each case, the role of the President or the Governor as the titular head of government was strictly limited, for he was expected to give his assent to any bill regularly passed by the two houses of the appropriate legislature. Of the two houses of each legislature, the Lower House (the House of Representatives at the center or the House of Assembly in each region) containing the people’s elected representatives was by far the stronger and the more powerful.7 On the other hand, Sections 58 and 59 of the constitution lay down certain general guidelines for the exercise of Federal legislative powers8 under the present Presidential system.9 Thus, the legislative powers of the National Assembly are to be exercised by ‘bills’, which may originate from either House. A ‘bill’, “according to the Blacks law Dictionary means the draft of a proposed law from the time of its introduction in a legislative House through all the various stages in both Houses. The 7 See generally, D. I. O. Eweluka, “Constitutional Law” in C. O. Okonkwo (ed.), Introduction to Nigerian Law (London: Sweet & Maxwell, 1980) at 201-205 8 Section 4 (1) of the Constitution allocates this power quite clearly in the following terms: “The legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly for the Federation which shall consist of a Senate and a House of Representatives”. The purposes of these powers where drawn up in subsection 2 thus: “The National Assembly shall have power to make laws for the peace, order and good governance of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this constitution.” A legislature that proceeds to pass a law, the contents and purpose of which are in flagrant violation of the spirit and letter of the Constitution is not acting within the ambit of the law making powers granted it: I. A Ayua, Nigeria Issues in The 1999 Constitution (Lagos: NAILS Press, 2000), at 47. See also V. C. Madu, “Judicial Review of Legislation” (2012) 1(I) NIALS International Journal of Legislative Drafting (NIJLD)) 157 at 158 and D. A Guobadia, Current Themes in the 1999 Constitution (Lagos: NIALS Press, 2007) at 176. Legislative power ought never to be exercise capricious, but with the greatest sense of the public good, circumspection and responsibility. The legislature in its law making function is limited by procedural requirements for law making as set out in the Constitution. 9 These provisions are similar to sections 54 and 55 of the 1979 Constitution. Also, it is pertinent to observe that our discourse of rule making under Nigerian civilian administration will, in the interest of space, focus on the rule-making in the National Assembly. There are two Legislative Lists in the 1999 Constitution. These are the Exclusive Legislative List and the Concurrent Legislative List. The Exclusive Legislative List in Part I, Schedule 2 to the Constitution contains 68 items. By section 4(2), only the National Assembly can exercise legislative powers on the 68 items”. It could be argued that there are actually three levels of legislative competence in Nigeria if we take into account the fact that there is a presumption of residual powers allotted to the states following analogous position in the US which is that whatever is not allocated to the federal government or made concurrent to both the federal and the states is reserved to the People through the states. 5 form of a proposed law before it is enacted into law by vote of the legislative body”.10 When passed by one House, a bill is sent to the other House to be passed by a simple majority11 after which it is sent to the president for his assent. Any disagreement as to amendments by either of the Houses affects passage and must be resolved before it is sent to the president who must assent or withhold assent within thirty days. Where he does not give his assent, it can again be passed into law by a two-thirds majority of each House.12 In National Assembly v. President of the Federal Republic of Nigeria,13 it has held that this means that the bill must go through the same processes it had previously gone through when it was first passed. As a result, the court further held14 that overriding the President’s veto of the Electoral Act 2002 by a motion supported by two-thirds of a quorum of the members of each house was contrary to the requirements of the constitution. In the case of money or appropriation bills, where it is passed by one House but not the other due to disagreements as to its passage or amendments, within two 10 K. M. Mowoe, op. cit. at 98. For a detailed analysis of the nature of bills see E. Malemi, op. cit. at pp. 162-166. 11 See section 58(2) and (3) of the constitution. 12 See section 58(4) and (5) of the constitution. 13 (2004) 41 WRN 94; (2003) 9 NWLR (Pt. 824) 104. See also Attorney-General, Abia and ors v. Attorney-General of the Federation (2006) where the Supreme Court of Nigeria discussed the relationship between the legislative powers of the national government vis-à-vis those of the state governments within a federal set-up. In particular, the reference by Niki Tobi JSC, to the doctrine of covering the field as applicable to Nigeria thus; “While the House of Assembly of a State is prohibited from exercising legislative functions on matters in the Exclusive Legislative List, the House can exercise legislative powers on matters contained in section 4(7) of the Constitution. This is in respect of matters not included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution and any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the Constitution to the extent prescribed in the second column opposite thereto. See sections 4(7)(a) and (b). Section 4(7)(c) is the House of Assembly of a State counterpart of section 4(4)(b) of the National Assembly... “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.” 14 Ibid, at p. 107-108. 6 months of the commencement of the financial year, the President of the Senate must within fourteen days convene a meeting of the Joint Finance Committee of both House to resolve the differences. Where it fails to do this, the bill must then be presented to a Joint Sitting of the National Assembly for its passage. It is then sent to the president for his assent and where such assent or its refusal is not forthcoming within thirty-days, it can be passed into law by a two-thirds majority of a Joint Sitting of the National Assembly.15 In the celebrated locus classicus case of Attorney-General (Bendel State) v. Attorney-General of the Federation,16 after the disagreement between both Houses with regards to the passage of the Appropriation Bill was resolved by the Joint finance Committee, it was sent directly to the President for his assent, without first coming back to the House. The court stated inter alia as follows: Until the bills goes back to the two Houses and passed in the form resolved by the committee or at least passed by the House in whose favour the differences have not been resolved, it is not yet law…. A legislature which operates a federal written constitution in which the exercise of legislative power and its limit are clearly set out has no power to ignore the conditions of law making that are imposed by that constitution which itself regulates its power to make law. Additional, apart from these generally required procedures, section 60 of the constitution gives each House of the National Assembly “the power to regulate its own procedure” including the procedure for summoning and recess of the House. 15 It is instructive to note that the National Assembly has no discretion as to whether or not to follow these laid down procedures, which are mandatory. 16 (1981) 10 SC 1; (1982) 3 NCLR 1; See also Olafisoye v. Federal Republic of Nigeria (2004) 4 NWLR (Pt 864) 580, where it was held that the Corrupt Practices and Other Related Offences Act, 2000 is not ultra vires the National Assembly. The case of A.G. Ondo State v. A. G. Federation (2002) 9 NWLR (Pt. 772) 222 is also instructive and illuminating. 7 Generally, the courts cannot therefore interfere with or make orders concerning such procedure.17 As has been noted: What is said or done within the walls of parliament cannot be inquired into by a court of law. The jurisdiction of the House over its own members and their right to impose discipline within their walls is absolute and exclusive.18 In Akomolafe v. Speaker of Ondo State House of Assembly,19 the court stated that it would not generally interfere with the internal proceedings of the legislature except where there is a breach of constitution or statue or where they act ultra vires. Again, national civil legislatures are concerned more about the procedures that are set out in the constitution for making valid laws. This concern is further compounded in federal jurisdictions where the legislative boundaries amongst the various levels of government that are set out in the constitution are far more important than the procedural requirements for making laws. The idea that Parliament is capable of enacting laws that could turn a man into a woman and vice versa may have been true in some ancient jurisdictions, especially England, but it is doubtful today if such could still be held to be valid if we take into account the new and expanding regime of constitutionalism to which most modern societies, including the post-EU England,20 where general legislative practice, has more or less, acquired the form and format of the contemporary reality, namely, the dominance of the Rule of Law, legislative standards and constitutionalism, as against the hitherto nebulous 17 Uttah v. House of Assembly (1985) 6 NCLR 522. 18 Quoted from K.M. Mowoe, op. cit. at 88. 19 Supra; see also the judgment of Nasir President of the then Federal Court of Appeal in Hounorable Edwin Ume Ezeoke v. Alhaji Isa Aliyu Makarfi (1982) 3 NCLR 663 20 See M. Elliot, “UK Parliamentary Sovereignty Under Pressure” (2004) 2 (3) Int. J Constitutional Law 545-627. Over the years, Parliament has passed laws that limit the application of parliamentary sovereignty. 8 claim to parliamentary sovereignty.21 Modern constitutional standards, or governance best practices, now control governments’ action and in particular, the law-making process almost globally. Accordingly, legislative powers of a civil legislature are constitutionally limited. Constitutional limitations on law-making powers under Nigerian Civil administration can be found in the omnibus provision of section 122 of the constitution itself. According to that provision: 1. This constitution is supreme23 and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. 3. If any other law is inconsistent24 with the provisions of this constitution, this constitution shall prevail and that other law shall to the extent of the inconsistency be void. The above provisions are always to be read together. Whereas subsection (1) is intended to deal with executive, legislative25 and judicial excesses or 21 Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution. 22 This section embodies the concept of Supremacy of the Constitution which has been explicated in a Plethora of cases – some which include: Adeleke & Ors. v. O. S. H. A. & Anor. (2006) 16 NWLR (Pt. 991) 608; A.G. Lagos State v. A. G. Federation & Ors. (2003) 12 NWLR (Pt. 833) 1; Governor of Kwara State & Ors. v. A. G. Federation & Ors. (2006) 16 NWLR (Pt. 991) 265; A.G. Ondo State v. A. G. Federation (Supra); A.G. Federation & Ors. v. Atiku Abubakar & Ors. (2007) 10 NWLR (Pt. 1041) 1; A. G. Federation & Ors. v. Atiku Abubakar (2007) 8 NWLR (Pt. 1035) 117; Federal Republic of Nigeria v. George Osahon & Ors. (2006) 5 NWLR (Pt. 1024) 361 and Aminu Tanko v. The State (2009) 4 NWLR (Pt. 1130) 430. 23 The words to the effect that the Constitution is Supreme seek generally, to establish the constitution, especially under a civilian democracy, as the grundnorm of Nigeria. Thus, in Ifegwu v. FRN (2001) 13 NWLR (Pt. 729) 103 (CA), it was held that the Nigerian Constitution is the grundnorm of Nigeria. Also, in Anka v. Lokoja (2001) 4 NWLR (Pt. 702) 178 (CA), it was held that the constitution of the Federal Republic of Nigeria is the grundnorm of the country, hence all laws have to be enacted in such a way as to be consistent with its provisions. See also Dapianlong & Ors. v. Dariye (2007) Vol. 152 LRCN 155. 24 The word inconsistent in the section means “mutually repugnant or contradictory, contrary the one to the other so that both cannot stand, but the acceptance … of the one implies the abrogation… of the other”: Berry v. City of Forthworth; Tex. Civ. App. 110 Sw 2d. 95, 103, referred to in K.M. Mowoe, op. cit. at 106. For an excellent judicial exposition on the connotation of the phrase “shall to the extent of the inconsistency be void” see Adegbenro v. Attorney General of the Federation (1962) 1 All NLR 431. FSC. 25 Emphasis mine 9 unconstitutionality in general; subsection (3) deals with the Supremacy of the constitution over all the other laws of the land. Thus, in Eleso v. Government of Ogun State,26 the Supreme Court held that all persons and authorities in Nigeria are bound by the constitution to act lawfully. More specifically, section 4 of the constitution provides that the National Assembly or State House of Assembly is subject to the jurisdiction of the Courts and judicial tribunals established by law, and shall not oust such jurisdiction under any law.27 In addition, both levels of government cannot make retrospective criminal laws.28 In Esemode v. Obanor,29 the court stated, inter alia, that it amounts to contempt of court for a House of Assembly to initiate a bill that would frustrate an earlier ruling of the Court. From the foregoing theoretical exposition, it may be deduced that law-making under a civilian democratic rule emphasizes rule by civil laws and the supremacy of civil laws. It contemplates rule by the constitution and reign of civil laws which are reasonably justifiable in a democratic society. Thus, the constitution is the supreme law of the land and rule of law30 is the basis of government action. 26 (1990) 2 NWLR (Pt. 133) 420. 27 See section 4(8) and (9) thereof. 28 Section 4(8) thereof. In Adikwu v. Federal House of Representatives (1982) 3 NCLR 663, the court recognized the fact that section 4(8) provides for the control of the legislature powers by the Courts. 29 (1984) 5 NCLR 600; see also Peacock Investments v. Hotel Presidential (1984) 5 NCLR 122. 30 The phrase Rule of Law is used to denote the existence of certain important principles which includes the following: supremacy of law, equality before the law, respect for fundamental rights and decisions of courts, etc. For legal commentaries on the nature and operation of Rule of Law in Nigeria, see generally Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 621); Guardian Newspapers Ltd. v. A.G. Federation (1995) 5 NWLR (Pt. 398) 703 at 741; Abgakoba v. Director SSS (1994) 6 NWLR (Pt. 351) 475; Agbai v. Okogbue (1991) 9-10 SCNJ 49 at 86; M. M. Akanbi and A. T. Shehu, “Rule of Law in Nigeria” (2012) 3 Journal of Law, Policy and Globalization 1 available online at www.iiste.org. (accessed 11/08/2012); F. Agbaje, “The Rule of Law and the Third Republic” in Fundamental Legal Issues in Nigeria (1995) (1) N L R E D P. Series, 45; M. Anthony, Freedom, State Security and the Rule of Law- Dilemmas of the Apartheid Society (London: Sweet & Maxwell, 1988) at 219; J. K. Jegede, “The Rule of Law in a Military Government: An Appraisal” (1999) NLPJ 19; B.O. Nwabueze, Nigeria’s Presidential Constitution, 1979-1983 (Ibadan: Longman Nigeria Ltd, 1985) at 205 & Pats-Acholomu, Threats to the Jurisdiction of the Court and the Rule of Law in Nigeria (Abuja: Federal Ministry of Justice, 1995) in all Nigerian Judges Conference Papers 43-47. 10 RULE MAKING UNDER NIGERIAN MILITARY REGIME31 Military government in Nigeria has always been a government under the law.32 There has not been any occasion for the declaration or operation of martial law33 by which the ordinary laws as we know them are completely suspended and the dictates of the military leaders become laws.34 The foregoing opinion of Chief Rotimi Williams35 SAN is in accord with this view. Military government in Nigeria, as we have come to know it since the coup of January 1966, is not a system of government in which a despot or a military oligarchy operating above the law exercises absolute power. It is rather a system of government which after coming into existence by overthrowing the existing legal order, replaces it by a new legal order. No military government in Nigeria has ever wiped out the entire provisions of the constitution which is overthrew….36 Accordingly, every military government we have had in Nigeria has always made a constitution for itself by which the structure of government, powers and functions of governmental organs are spelt out. By so doing, legal limitations are placed on governmental institutions and their activities.37 In other words, when the 31 For an excellent legal commentaries on the nature of military rules in Nigeria; see generally A. Ojo, Constitutional Law and Military Rule in Nigeria (Ibadan: Evans Brothers [Nigeria] Publishers Ltd., 1987) at 237-287; O. Achike, Groundwork of Military Law and Military Rule in Nigeria (Enugu: Fourth Dimension Publishers, 1980) at 24-139; E. Malemi, op. cit. at 54-65; S. Tar. Hon, Constitutional Law and Jurisprudence in Nigeria (Port Harcourt: Pearl Publishers, 2004) at 362-367; J. K. Jegede: op. cit. and T. O. Dada, General Principles of Law Third Revised Edition (Lagos: T. O. Dada & Co., 2006) at 458-491. 32 While it must be appreciated that all the military administrations in Nigeria have operated under the law, there are still lacking those elements of constitutionalism which keep them away from being governments under the rule of law. Also, because they came into governance through force, intimidation or blackmail rather than through the process allowed by law military regimes suffer a lot of credibility or legitimacy crises. 33 Martial law is usually operative under military regimes. 34 A. Ojo, op. cit. at 243. 35 F. R. A. Williams: “Fundamental Rights under a Military Regime”. (1995) being a text of a lecture at the Ogun State University, Ago Iwoye, available at The Guardian, Tuesday, July 16, 1985. 36 Ibid, at p.13. 37 A good example is the provisions to be found in all Decrees on the constitution that a Decree needs the signature of the Head of State and Commander-In-Chief of the Armed Forces to become law and this is a function he cannot delegate. See for instance, s. 5 of Decree No. 1 of 1966 & proviso to section 9 thereof and section 4 of Decree No. 1 of 1984 and proviso to section 12 thereof. 11 military comes to power, they suspend parts of the constitution and modify whatever is left of the toothless constitution which operates subject to the decrees38 of the Federal Military Government. Decrees and Edicts are laws made by the military. While legislation made by the Federal Military Government is known as Decree, a State one is known as Edict.39 A Decree of Edict is made known to the public by means of a sound or television broadcast, or by publication in writing, or in any other manner.40 Where two or more Decrees or Edicts make provisions on the same subject matter the ones published by the Gazettes shall prevail over ones not so published.41 A Decree or Edict is made when it is signed by the Head of the Federal Military Government or a military Governor respectively as the case may be, whether or not it then comes into force. Where no other provision is made as to the time when a particular provision contained in a Decree, Edict or subsidiary instrument is to come into force, it shall come into force on the day when the Decree, Edict or subsidiary instrument, as the case may be, is made.42 Again, under the Nigerian military rule, the legislative power of the government was supreme and appeared unlimited. The limitations provided under 38 In Nigeria, the following have been some of the Decrees that have been promulgated to declare the ultimate supremacy of the various military regimes, thereby giving them some form of legitimacy. They include; The Constitution (Suspension and Modification) Decree No. 1 of 1966; The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970; The Constitution (Suspension and Modification) Decree No. 1 of 1984; The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984; The Constitution (Suspension and Modification) Decree No. 107 of 1993 and The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 12 of 1994. Through these Decrees and many others, the various military regimes in Nigeria sought to and indeed legitimatized themselves. The point is emphasized that these Decrees are Supreme and are above the constitution since they can modify and even suspend sections or even the whole constitution. 39 See for instance sections 2(1) and (2) of Decree No. 32 of 1975; sections 3(1) and (2) of Decree No. 1 of 1984. 40 See for instance sections 2(3) of Decree No. 32 of 1975 sections 3(3) of Decree No. 1 of 1984. 41 See for instance sections 3(1) and (2) of Decree No. 32 of 1975 and sections 3(4)and (5) of Decree No. 1 of 1984. 42 See for instance sections 3(3) of Decree No. 32 of 1975; sections 3(4) of Decree No. 1 of 1984. 12 civilian rule vis-à-vis a supreme constitution was always abrogated upon seizure of power then modified and re-enacted under a decree, which thereafter served as the purported constitutional basis of their governance.43 Under the modified constitution, unlimited power was given to the legislature to perform acts which are prohibited under civilian democratic constitution.44 The bodies exercising the legislative authority were variously termed Supreme Military Council, Armed Forces Ruling Council, and Provisional Ruling Council (PRC) at various times. The chairman was always the Head of State or President and other members were the Vice President, Service Chiefs, Inspector General of Police, Attorney General of the Federal and other members that were appointed to the council from time to time.45 There was no stated formal procedure for arriving at decisions though there was evidence that debates were often allowed. It was, however, the signature of the Head of State or Military President that turned a decree into law.46 In other words, only the absence of such a signature could vitiate the status of the degree. Under the various ‘military constitution’, the legislative authorities stated above had the power to ‘make laws for the peace, order and good government of Nigeria or any part thereof on any matter whatsoever.’47 This made the legislative authority of the central government all pervasive, especially also because there were no legislative bodies in the component state under military rule and the power of a 43 See for example The Constitutional (Suspension and Modification) Decrees Nos 1. of 1966, 32 of 1975, 17 of 1984, 17 0f 1985 and 107 of 1993. 44 See for example section 6 of Decree No. 1 of 1984. 45 See for example, sections 5 of Decree 107 of 1993 which limits the power of the judiciary to review legislative acts of the military government. 46 See for example, section 3 of Decree No. 17 of 1985. 47 Section 3 of Decrees Nos. 1 of 1966; 1 of 1984 and 17 of 1985. 13 military Governor to make an Edict was dependent on his obtaining prior consent from the centre.48 The supreme of this legislative authority was further emphasized by the provision that ‘no question as to the validity of any Decree or Edict is to be questioned in any court of law.’49 In addition, under various decrees the jurisdictions of the courts were often ousted.50 Despite spirited efforts on the part of the courts initially to resist such ouster and limit somehow the legislative authority of the Federal Military Government, the various Military Governments consistently maintained their legislative supremacy, by sometimes nullifying court decision by decree.51 Eventually, the courts accepted the supremacy of the legislative authority of the Military Government.52 In Ondo State Governor v. Adewunmi53 the Court in accepting such supremacy stated as follows: At present, by the intendment of the Constitution (Suspension and Modification) Decree No. 1 of 1984, the 48 See K. M. Mowoe, op. cit. at 110 for a similar opinion. 49 See for example, section 4 of Decree No. 32 of 1975 and section 5 of The Constitution (Suspension and Modification) Decrees Nos 1 of 1984; 17 of 1985 and 107 of 1993.This provision has been interpreted to mean that although the courts may not question the validity of a Decree, they are not estopped from declaring an Edict void to the extent that it conflicts with a Decree: A. Ojo, op. cit. at 56. 50 See for example, State Security (Detention of Persons) Decree No. 2 of 1984; Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984. Also, it is instructive and illuminating to note that Nigerian Courts have, in many decision declined jurisdiction to pry into the legislative competence of military authorities: See for instance Dosunmu v. Attorney-General of Lagos State (1989) 5 NWLR (Pt. 111) 552; Din v. Attorney General of the Federation (1988) 4 NWLR (Pt. 87) 147 and Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539. 51 This is clearly illustrated by the often cited locus classicus case of Lakami v. A. G. Western State (1970) 6 NSCC 143 where the then military government of General Yakubu Gowon, which felt short-changed by the Supreme Court decision in the instance case (to the effect that the legislative and executive powers exercisable by the Federal Military Government as follow-out of the January and July 1966 Coup de-tats were limited to powers exercisable under the doctrine of necessity, hence were not absolute powers) hurriedly enacted Decree No. 28 of 1970, which practically annulled the decision in Lakami’s case and declared that regimes supremacy and legitimacy in clear and unequivocal terms. See also, other decisions in the like manner, such as Adenrele Adejumo & Nigeria Construction Co. Ltd. v. Johnson (1974) 1 All NLR 26 at 30 and Onyuike v. Eastern Interim Assets & Liabilities Agency (1974) 1 All NLR (Pt. 2) 151. 52 See for example Ademolekun v. Council of University of Ibadan (1968) NMLR 253; Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572. 53 (1985) 3 NWLR (Pt. 13) 93. 14 Organic or Fundamental Law or the Grundnorm of Nigeria is: a. Decree No. 1 of 1984 or any other Decree; and b. Unsuspended sections of the Constitution of the Federal Republic of Nigeria 1979. Whatever is in consonance with the organic law or fundamental law or Grundnorm is intended by the Decree, but whatever is in conflict with the organic law or fundamental law or Grundnorm is unconstitutional under the Decree and therefore void. All in all, rule-making under military regimes is characterized by total disregard for the rule of law,54 and curtailment of fundamental rights, democratic freedoms, civil liberties and constitutional rights or human rights especially, curtailment of the right to freedom of expression, press and personal liberty.55 Finally, in a military regime there is always a fusion of executive and legislative power. CONCLUSION The foregoing account has shown the differences between law-making under Nigerian civil Administration and law-making under military regimes. It must be acknowledged that if the law is to serve society as a tool for social engineering, then, those who propose legislations, those who draft them and those who pass them through the legislative processes that are operational in the floors of parliaments ought to factor into their actions certain values and expectations that best advance on 54 Contrast the opinion of Chief Obafemi Awolowo that “under military rule, the rule of law is not totally suppressed, but largely in abeyance”: “The Press in the Service of the State” Voice of Wisdom at pp. 93 and 101-quoted from E. Malemi, op. cit. at p. 54. 55 See A. Ojo, op. cit. at 249 and E. Malemi, op. cit. at 54, for a similar view point. See also the obnoxious and notorious State Security (Detention of Persons) Decree No. 2 of 1984; Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984. 15 the ‘felicity calculus’56 of their society, namely, in the best interest of society as a whole as against ad homenien laws which target narrow segments of the society either for ill or for good. A law may be flawless as to the procedures for its enact yet falls short of the requirements of the good law due to the goal it is set out to achieve. The exposition lends credence to the fact that the best military rule is worse than the worst civil administration in Nigeria. There is no doubt that military rule or dictatorial government is an aberration of all the well-known and well-tried norms of constitutional law and is thus undesirable in any body polity. As a result, it is not possible to operate a constitution properly so-called under military rule or any dictatorship by whatever names it is called. 56 See Jeremy Bentham , An Introduction to the Principles of Morals and Legislation (London, 1789) at chap. 4. 16 REFERENCES Achike, O.: Groundwork of Military Law and Military Rule in Nigeria (Enugu: Fourth Dimension Publishers, 1980) Agbaje, F.: “The Rule of Law and the Third Republic” in Fundamental Legal Issues in Nigeria (1995) (1) N L R E D P. Series, 45. Akanbi, M. M. and Shehu, A.T.: “Rule of Law in Nigeria” (2012) 3 Journal of Law, Policy and Globalization, 1 available online at www.iiste.org. (accessed 11/08/2012). Anthony, M.: Freedom, State Security and the Rule of Law-Dilemmas of the Apartheid Society (London: Sweet & Maxwell, 1988) Ayua, I. A.: Nigeria Issues in The 1999 Constitution (Lagos: NAILS Press, 2000) Bentham Jeremy, An Introduction to the Principles of Morals and Legislation (London, 1789) at chap. 4 Dada, T. 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C.: “Judicial Review of Legislation” (2012) 1(I) NIALS International Journal of Legislative Drafting (NIJLD)) 157 Malami, E.: The Nigerian Constitutional Law (Lagos: Princeton Publishing Co., 2006) 17 Mowoe, K.M.: Constitutional Law in Nigeria (Lagos: Malthouse Law Books, 2008) Nwabueze, B.O.: Nigeria’s Presidential Constitution, 1979-1983 (Ibadan: Longman Nigeria Ltd, 1985) Ojo, A.: Constitutional Law and Military Rule in Nigeria (Ibadan: Evans Brothers (Nig.) Publishers, 1987) Oyelami, T. O.: “The Challenges of Controlling Administrative Legislation in Nigeria” available online at www.nials-nigeria.org/journals;accessed 11/08/2012. Pats-Acholomu: Threats to the Jurisdiction of the court and the Rule of Law in Nigeria (Abuja: Federal Ministry of Justice, 1995) in all Nigerian Judges Conference Papers 43-47. Williams, F. R. A.: “Fundamental Rights under a Military Regime” (1995) being a text of a lecture at the Ogun State University, Ago Iwoye, available at The Guardian, Tuesday, July 16, 1985.
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