IMPERATIVES AND MODALITIES FOR CONSTITUTIONAL GOVERNMENT IN NIGERIA

02 Dec IMPERATIVES AND MODALITIES FOR CONSTITUTIONAL GOVERNMENT IN NIGERIA

Echoes of a sovereign National Conference has been filtering in from Nigeria for years now.  Military governments have used constitutional conferences to perpetuate themselves in power and douse public agitation for democracy.  The numerous transition phases; constitution drafting committee, constituent assembly, local government election, election commission, presidential election, postponed hand over dates etc., have all been used as subterfuges for extending military regimes. Democracy advocates have agitated for a sovereign national conference for years and have been ignored by successive governments for fear that it would open up the Pandora box -that is- balkanize Nigeria into its various ethnic units. The Nigerian government has finally agreed to organize a sovereign national conference.  Issues such as financial independence for the states, state police, revenue allocation are high on the agenda. However, with recent developments in Egypt, it is pertinent to examine the underlying question of military intervention in governance in Nigeria. How do we ensure that a civilian government will not be truncated by military coup. In plainer language, how do we ensure that the military stays out of power permanently? Can the military in fact resist the allures and perquisites of power having tasted its forbidden fruits for so long? Can the military quit cold turkey? Should it be forced to quit or is it even desirable for the military to quit?  The thesis of this article is that the military should, ought, and must be kept out of power. How best to achieve this will be discussed below.

Most countries, including Nigeria, have attempted to legislate coups out of existence.  For instance section 1 of the 1979 Nigerian constitution specifically outlawed coups. As the Shehu Shagari’s administration found out in December 1983, the military is not really schooled in constitutional niceties and actually does not pay much attention to its provisions.

A source of great controversy to constitutional scholars has been the effectiveness and validity of clauses in constitutions outlawing coups.  Some argue that all the military and, in fact, any other group has to do is cease power in a manner not provided for by the constitution and then proceed to ensure that it is effective by demanding and commanding obedience from the population.  Thus, what is important is efficacy not validity. A coup, they argue, is an event which violently uproots the established legal order. Accordingly, there is no law in existence that bounds successful coup plotters. A coup brings in and establishes its own new legal order, upon which its validity rests.  If the courts refuse to recognize its authority it can dismiss the courts and appoint new ones. Professor Kelsen, a positivist jurist was the prime advocate of this theory. Kelsen postulated that law was nothing more than a set of norms arranged in hierarchical order, with the higher norms giving validity to the lower norms. As the norms got higher, they became more general and concretized in their authority and application until the final or highest norm which he called the grund norm.  The grund norm gives validity to all other norms in the hierarchy. In practical terms, any authority, military or otherwise that has these characteristics was legal and no further enquiry as to validity was relevant, necessary or useful.

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It is submitted that this theory is irrelevant to modern African countries.  The efficacy theory was developed in Europe to suit its particular circumstances especially to validate political upheavals like the french revolution.  The theory essentially rests on bad logic. The fact that an armed robber effectively dispossesses you of your property does not validate the act. The act may be successful and efficacious but its intrinsic illegality is unanswerable.  A criminal defendant that raises efficacy as a defense will only earn the wrath of the court. Why then should effectiveness be a defense for a crime as high as treason? The answer lies in the political character of the crime.

Nigeria, indeed Africa, and other developing countries with endemic political problems must fashion political theories that address their peculiar situations.  The constituent assembly in Nigeria attempted solving this problem not only by outlawing coups but by making them a crime at all times. Thus, the crime endured in perpetuity without limitation. For instance, Chukwuma Kaduna Nzeogwu, Yakubu Gowon, Murtala Mohammed, Mohammed Buhari and Ibrahim Babaginda could all be tried at any time for treason.  All these men and various accomplices could be brought to book in Nigeria, no matter the length of time that has lapsed since their crimes. The Babaginda government rejected this recommendation for obvious reasons.  

     For some, this might be a startling proposition.  However, political instability is a serious impediment to social, political and economic development that deserves serious solutions. The obvious question is how to implement this.  What are the modalities for effecting this law. Who will have the political courage, sagacity and fortitude to try a former military head of state? The answer is to leave the civilian regime no choice.  The constitution should mandate prosecution within the first one year of the existence of the incoming regime. There should be provisions for a special prosecutor who must be independent. The special prosecutor must commence prosecution within six months of being appointed and all prosecutions must be concluded within a year.  The fees of the special prosecutor will be voted for by the legislature and operating cost will be paid by the election commission. The Federal High Court will have original jurisdiction in the matter and appeals will be to the Court of Appeal and the Supreme Court in that order. A constitutional mandatory prosecution would alleviate fears of witch-hunt, vengeance, timidity or favoritism on the part of the incoming administration.  A refusal to initiate a constitutional prosecution by the president would be an impeachable offense under the constitution. Penalties could range from life sentence to very long terms imprisonment without the possibility of parole. The death penalty should be completely ruled out.

The steps prescribed above might appear draconian and in fact create the appearance of a contradiction in terms for a society trying to evolve a democratic culture.  However, political instability is serious enough to warrant a constitutional sledge hammer. The penalties must be severe enough to make coups unattractive. A situation where every military sergeant considers himself a potential head of state simply because of the military’s monopoly of the instruments of violence is not only politically unhealthy, but creates distortions in the political system that manifests themselves in economic, social and cultural backwardness.  

     Nigeria’s, indeed, Africa’s development must not be held hostage by constitutional theories formulated in the Europe of yore.  While constitutional law cannot be hermetically sealed from outside influences, its fundamental assumptions must be homegrown and bred.

Any civilian administration in Nigeria is destined to fail if the military remains an umpire in a game in which it is also a participant. It is the military which decides when the civilian government must be removed and it also decides when to hand over power.  This is simply unacceptable and must be resolutely resisted.

After many years of comparative political and constitutional studies, what becomes obvious is that there is no such a thing as a perfect government anywhere in the world.  It is the ability of a political system to recognize its failures, rectify it and develop its own rules and conventions that marks a successful democracy.

Mr. Ernest Izedonmwen holds a J.D. and double masters’ degrees in Corporate and Comparative International Law. He is an attorney who practices in Dallas, Texas and can be reached at 214-631-1616 X 102 or (469) 878-6403.