In 1914, by an act of amalgamation, Britain created Nigeria. In 1960, by the Doctrine of Recognition, Britain established Nigeria as a colonial State. However, the subsequent form and format of the colonial State of Nigeria was created by agreement. In the first agreement, in 1960, Nigeria became the ‘Federation of Nigeria’ (Section 2 of the 1960 Constitution) with partial sovereignty, under an agreement that Britain had concluded with representatives drawn from the Protectorates, that is to say, Eastern, Northern and Western Nigeria, and Colony of Nigeria, that is to say, Lagos. In the second agreement, in 1963, by a Nigeria legislative Act, the ‘Federation of Nigeria’ became a fully sovereign ‘Republic’ comprising of Eastern, Mid-western, Northern and Western Nigeria and the Federal Territory of Lagos (Section 2 of the 1963 Constitution).
The 1960 Constitution was a formal contract (the ‘Nigeria Contract’); Section 1 says: ‘This constitution shall have the force of law’, meaning it was legally binding. The parties to the contract were Britain, Eastern, Northern and Western Nigeria, and the Federal Territory of Lagos. The 1960 Constitution included the ‘right to terminate’ the agreement; Section 4(1) says: ‘Parliament may alter any of the provisions of this constitution’. Thus, only ‘Parliament’ to which Eastern, Northern and Western Nigeria, and the Federal Territory of Lagos had contributed members was entitled in law to terminate the ‘Nigeria Contract’.
The 1963 Constitution was a superseding, legislative act; Section 1 says: ‘This constitution shall have the force of law’, meaning it was legally binding. The parties to the contract were Eastern, Mid-western, Northern and Western Nigeria, and the Federal Territory of Lagos. The 1963 Constitution included the ‘right to terminate’ the agreement; Section 4(1) says: ‘Parliament may alter any of the provisions of this constitution’. Thus, as before, only Eastern, Mid-western, Northern and Western Nigeria and the Federal Territory of Lagos, as contributors to the ‘Parliament’, and no other, had the legal right to terminate the ‘Nigeria Contract’.
On 15 January 1966, a military coup d’état made the ‘Nigeria Contract’ physically impossible to perform. The military usurpers murdered elected officials in cold blood as they replaced Nigeria’s elected parliaments with themselves. A military coup was not an event that was foreseeable to the parties to the ‘Nigeria Contract’ in 1963; that military coups would be recurring events also was not foreseeable in 1963. The military intervention in Nigeria thus was like a force majeure.
The Nigerian military voluntarily demitted office in May 1999 leaving behind a new constitution. The 1999 Constitution was very clearly stated to be a ‘resolve’; ‘We the people of the Federal Republic of Nigeria Having firmly and solemnly resolve…Do hereby make, enact and give ourselves the following Constitution…’. The word ‘resolve’ as used here implied no more than a firm determination by the people to do something, that is to say, to do the constitutional thing. The question arising was whether this ‘resolve’ could legally acquire the ‘binding force’ that Section 1 (1) of the 1999 constitution demanded for it.
The 1999 Constitution itself does not provide a clue. The 1999 Constitution was not a legal agreement, which the 1960 Constitution was. The 1999 Constitution was not a legislative act, which the 1963 Constitution was. The 1999 document did not have a ‘We the People’ character since it had no grassroots consultation, no constituent (or drafting) assembly, and no referendum. The ‘resolve’ could only become law if the military government that promulgated it was itself legal.
Courts in several jurisdictions, nearly all in developing countries, have made determinations in favour of legality for coup d’états based on the political theory of Hans Dryden, namely, revolutionary legality or ‘might is right’. The Supreme Court of Cyprus in Liasi v Attorney General (1975) CLR 558 passim Cyprus, was different. The Court provided a most intellectually reasoned determination. After conducting extensive research dating back to Roman times, the Court described two legal tests that should be applied when determining the legality of a coup d’état:
i. Substantive test – popular acceptance, even if tacit.
ii. Formal test – recognition of the coupist actions by the next lawful government.
The situation in Nigeria is complex in that there have been a series of coup d’états. However, by being continuously one with another, the coup d’états could be treated as one; General Abacha, for example, participated in all but one of the coup d’états.
The Nigeria coup d’états failed to meet the Substantive test of legality in that there was no public acceptance of it at any time. The coup d’états when staged were accompanied by extreme violence and deaths, and subsequently by the assassinations or detention of non-military opponents, like Ken Saro-wiwa and Mosood Abiola. There was in 1967 a civil war, the Biafra War, which lasted three years and claimed over 2 million lives. Several organisations of the civil society, such as NADECO, were formed specifically to oppose military rule. Several legal challenges were instituted in the Nigerian courts. Indeed, in the early days, Nigerian Courts defied the usurpers by distinguishing the 1966 coup d’état from the military government. In Council of the University of Ibadan v Adamolekun (1967) 1 All NLR 213 (Nigeria), the Court held that the military government was only an agreed takeover, that the 1963 Constitution was alive and that military decrees were inconsistent with it. In Lakanmi v Attorney-General Western Nigeria (1970) SC 4 LLER 1 (Nigeria), the Court held that the military takeover was an invitation, not a revolution and was therefore not conferred with unfettered legislative power.
The Nigeria coup d’états failed to meet the Formal test of legality in that they were felonious acts that contravened Nigeria’s Penal Codes 37(1) and 61, which were existing laws throughout the military interregnum, and which attracted the punishment of imprisonment or death. The 1999 Constitution, imposed on Nigeria by the coupists, deliberately hamstrung the next lawful government to ensure that coupists were never brought to account for their actions. Most of the politicians that were punished or removed from office by the coup d’états were returned to office by election after the military demitted office; many dismissed officials were returned to office one way or another.
It is clear from the foregoing that military rule in Nigeria was ‘legally non-existent’. It follows that the 1999 Constitution promulgated by the military too was ‘legally non-existent’. By being a force majeure, Nigeria’s coup d’états entitled the Western Region legally to terminate the ‘Nigeria Contract’ and go it alone.