Federal Military Rule In Nigeria

INTRODUCTION

The Federal Government of Nigeria is the federal government for the Federal Republic of Nigeria, a federation in West Africa, composed of 36 states, who share sovereignty with the federal government and 1 federal territory administered solely by the federal government. The federal government is composed of three distinct branches: legislative, executive, and judicial, whose powers are vested by the Constitution of Nigeria in the National Assembly, the President, and the federal courts, including the Supreme Court, respectively.

Nigeria is a federal republic, with executive power exercised by the president. The president is the head of state, the head of government, and the head of a multi-party system. Nigerian politics takes place within a framework of a federal, presidential, representative democraticrepublic, in which executive power is exercised by the government. Legislative power is held by the real government and the two chambers of the legislature: the House of Representatives and the Senate. Together, the two chambers make up the law-making body in Nigeria, called the National Assembly, which serves as a check on the executive arm of government. The highest judiciary arm of government in Nigeria is the Supreme Court of Nigeria which was created after independence and also practices Baron de Montesquieu's theory of the separation of powers based on the United States system and also practices checks and balances The Economist Intelligence Unit has rated Nigeria as "hybrid regime" in 2016. In 1996 to 1999, the breakdown of law and order which occurred in this period under review would not be attributed to any defect in the Nigerian legal system. Corrupt practices both in the body politic and all aspects of Nigerian life eroded efficiency and progress. There were 8 coups generally five were successful and 3 were unsuccessful.

STRUCTURE OF THE NIGERIAN MILITARY GOVERNMENT

For the past 16 years, Nigeria has transformed from military rule to a democratic structure of government. Even though the governmental constitution of 1999 promised Nigerian citizens a more democratically run government that would allow the citizens to play a role in political manners; Unfortunately, Nigerian governmental officials have not abide by the principles of the new constitutional structure and still operate in a "militant style fashion".  Nigeria gained its independence in 1960 from British rule. At first, Nigeria operated a westernized governmental structure until a military coups was formed and the late Minister Abubakar Tafawa Balewa was overthrown from power in 1966. For decades military officials would be responsible for civil wars throughout Nigeria. Military recruitment would also increase from 10,000 to 250,000 civilians in Nigeria. Also during this time period, Nigeria did not receive any threats from foreign countries which gave the military the sole role to suppress radical uprisings within the country. In the 1980's, military rule soon become corrupted and focused more on personal gain instead of ideology. Religious, criminal and communal violence increased during this time period. Many officials were indicted of corruption. Many issues continue to arise around Nigeria and when one issue was addressed by the military government, other issues would arise. Within the military government, there was no accountability among its officers and officials would often not follow rules and policies and would not get punished for it. They would even be re-elected in their positions even after being indicted of crimes. 

Nigeria was under military rule from 1966-1999.  Usually military rule is only a short term initiative and its used to only stabilize governments until democratic processes are put into order. Unfortunately militarism in Nigeria has become a long term agenda. Influential personalities from past military regiments still play a role in the more democratic government of today. Adults who were born during military rule would have a hard time adapting to a democratic run government due to the fact that their morals, views, and ideologies have been formed on military rule. Some citizens view the military as men of "discipline and responsibility". Most believe that military rule was responsible for the development of today's infrastructure. The military structure although heavily criticized for human rights atrocities and practices of corruption did accomplish some positive initiatives.

Nigeria’s Military Decrees

Decree No. 1 of 1966 (Constitution Suspension and Modification Decree)
Abolished parliament and the regional legislature.  Established Supreme Military Council but its functions not specified.  Established an Executive Council, which operated like the cabinet,  Section 3 provided that the Federal Military Government has the power to make laws for the peace, order and government of Nigeria,  It gave the newly appointed Regional Military Governors power to only legislate on matters in the concurrent list and with the prior consent of the FMG.  If any regional law conflict with federal, the latter trumps.  Section 6 provided that nothing in the decree could be addressed in court.  Council can delegate functions but only the Head of State can sign decrees.  Note that Military Governors are referred to in this decree as “the Government”; Schedule 1 lists the provisions of the 1963 constitution that are suspended. The Decree established an Advisory Judicial Committee which could only advise the SMC on appointments.  This replaced the Judicial Service Commission of 1960, which had powers of appointment and removal, and the 1963 Constitution, which did away with the Commission.  Major provisions on judiciary in the 1963 Constitution were suspended; Supreme Court lost jurisdiction to determine disputes among the states or between a state and the FG.  Also, neither Parliament nor the Regional Legislatures could establish courts anymore.

Decree No. 2 (May 24) and Decree No. 5 of 1966 

(Constitutions Suspension and Modification)

Abolished federalism but only lasted a short time under Ironsi.  Renamed the federation the “Republic of Nigeria”, The Federal Military Government became the “National Military Government” and the Federal Executive Council became the “Executive Council.”  Each region became a “group of provinces.”  Military governors lost their legislative powers but the Head of State retained power to delegate to them.  Federal Republic Service Commission was renamed the National Public Service Commission and each Regional Public Service Commission became a “Provincial Public Service Commission.”

Decree No. 9 of 1966 (August 8)

Reversed most of the unifying provisions of the Ironsi regime

Decree No. 8 of 1967 (Decree No. 8 part 1 and part 2 of 2)

Supposedly enshrined results of the Aburi, Ghana meeting by reaffirming Nigeria as a federation and upholding the supremacy of the SMC,  Ojukwu rejects the decree.

Decree No. 14 of 1967  (State Creation and Transitional Provision)

Created 12 states and provided for Military Governors for each state.

Decree No. 45 of 1968 Forfeiture of Assets (Validation) Decree

Refer to Lakanmi and Kikelomo Ola v. The Attorney General, Western State. The authority of the FMG to legislate.

Decree No. 28 of 1970

This was issued a few days after the Supreme Court decision on Lakanmi.  It abrogates the 1963 constitution except for what Decree #1 of 1966 explicitly preserved (See Ojo pp. 126-134; see also “Federal Military Government Decree No. 28 of 1970” by A.G. Karibi-White in Nigerian Journal of Contemporary Law, vol. 1, no. 2, 1970).

Decree No. 4 on “Indigenization,” February 1972

Limited the private property that a foreigner can own

Decree No. 5 of 1972

Head of State can unilaterally remove the Chief Justice (p. 164).  This practice is reaffirmed in

Decree No. 32 of 1975

This created the Supreme Military Council, the National Council of States, and the Federal Executive Council.  Also created an Advisory Judicial Council, Military Governors, were no longer members of the SMC; they were now members of the National Council of States.  Who qualified to be a governor was strictly determined by military rank.  The Head of the Govt should consult the SMC; Gowon did this irregularly.  States could not legislate on the Concurrent list without the prior consent of the FMG (Ojo p. 183). This organization was intended to (1) distance the new government from Gowon, (2) weaken the governors who had become too powerful by serving on the SMC, and (3) limiting the participation of bureaucrats in the meetings to avoid Gowon’s super-bureaucrats from emerging. (See Osaghae 1998, 81).

Decree No. 12 of 1976 States (Creation and Transitional Provisions)
Change from 12 to 19 states.

Indigenization Decree June 29, 1976

All banks must have 60% Nigerian Equity instead of the current 40%.  Three instead of two categories of companies affected by the 1974 decrees

Decree No. 3 of 1977 on “Indigenization”

Another indigenization decree

Decree No. 73 of 1977, part 1 and part 2

Sets up FEDECO Changes to this decree are announced on December 29, 1977, including a prohibition on justiciability.

Decree No. 105 of 1979, Constitution of the Federal Republic of Nigeria Amendment Decree
This decree changed the constitution after the Constitutional Drafting Committee submitted the constitution.

Decree No. 1 of 1983 Constitution (Suspension and Modification) 
Very similar in substance to Decree 32 of 1975.  Gave the FMG unlimited legislative powers.  Military Governors could not legislate without prior consent.  Ojo argues in practice though the states had a large degree of latitude because they were able to make grants or loans for purposes listed on the Exclusive or Concurrent Legislative lists (pp. 30, 53).  Schedule 1 suspended numerous provisions of the 1979 Constitution.  Legislation signed by the Head of the FMG is a “degree” and legislation signed by a military governor is an “edict.”  Ojo gives a long description of how legislating on a decree supposed to happen (pp. 66-69).  A decree requires the signature of the Head of State and Commander in Chief of the Armed Forces to become law; this authority cannot be delegated to anyone. Section 9 of this decree (like Section 8 of Decree No. 32) also created new requirements for the Head of State to consult the SMC.  Powers such as appointing and removing Chiefs of Staff, General Officers Commanding, and Military Governors require consultation with SMC (p. 50).  However this consultation is not justiciable. This decree bans political parties.  Section 40 gave the federal government powers to forfeit property obtained illegally.  Tribunals for the recovery of public property formed but their decisions are subject to confirmation by the SMC (pp. 271-277).  Section 32 guarantees right to a speedy trial.

Decree No. 2 State Security (Detention of Persons) of 1984

This allowed indefinite detention on security grounds.  It gave broad authority to the National Security Organization.

Decree No. 3 of 1984 

Constitution of assets investigation panels

Decree No. 6 of 1984 Banking and Freezing of Accounts

Allowed head of state to freeze assets of those suspected of corruption.

Decree No. 14 of 1983 Recovery of Public Property (Special Military Tribunals)
Buhari set up these tribunals to try Second Republic politicians, ministers and political advisors for corruption.  Some articles about how this worked and who was tried (convictions were around July 1984) would be very useful.  Contact Nigeria Bar Association because they were active in opposition to these.

Decree No. 13 of 1984 FMG (Supremacy and Enforcement of Powers)
Bans civil proceedings in any court for anything related to decree (Ojo p. 168-69).

Decree No. 8 of 1985 Judgment and Tribunals (Enforcement) 
State that decisions by tribunals set up by previous decrees could not be appealed.

Decree No. 17 of 1985 Constitution (Suspension and Modification)
Babangida’s first act was to the SMC, the Federal Executive Council, and the National Council of States.  He then created the Armed Forces Ruling Council, a new National council of States, and a National Council of Ministers.  He calls himself “President and Commander in Chief of the Armed Forces,” fusing the two offices.  Chief of Staff, Supreme Headquarter was abolished and Supreme HQ renamed Chief of General Staff, General Staff HQ.  IBB later clarified that the Chief of General Staff was his deputy. All FMG decrees require signature of the president.  Executive authority exercised in consultation with AFRC.  President may delegate functions to National Council of Ministers or any other authority.  Powers previously vested in the SMC are now exclusive power of the President: appointment of Chief of General Staff, Minister of Defense, Chairman JCS, Chief of Army Staff, Chief of Navy Staff, Chief of Air Staff, IG of policy, and the DG of the Nigerian Security Organizations.  Thus the collective powers of appointment are fewer. AFRC is larger – 28 members – and entirely military.  Council has the power to make provisions for statutory allocations to local governments.  It also considers and approves estimates of revenues and expenditures.  The National Council of State deals with state matters but includes various AFRC members (Ojo p. 296) and is subject to control of AFRC.  National Council of Ministers meets under the President or the Chief of General Staff and implements the policies of the AFRC. Advisory Judicial Committee advises AFRC on appointments.  No decisions are justiciable.  Before the government can confiscate property, the accused is entitled to judicial process though.

Decree No. 25 of 1987 Participation in Politics and Election Decree of 1987
Banned former office holders guilty of corruption from running for office (See Osaghae 1998, 215).

Decree No. 9 of 1989
Expanded list of those prohibited from participating in politics in 1987.

Decree No. 26 of 1989

Amends the Transition to Civil Rule (political programme) decree of 1987, changing the date to January 1992 and then to 1993

Decree No. 48 of 1991

Gave powers to Electoral Commission to approve candidates  Had the effect of disqualifying governors and several state and National Assembly hopefuls (See Osaghae 1998, 216).

Another unknown decree amends Decree No. 17 and streamlines the AFRC
Possibly it is #25, 26, or 27 of 1986

Decree No. 61 of 1992

Sets up the Interim National Government

Decree No. 53 Transitional Council of January 2, 1993
Armed Forces Ruling Council was dissolved and the National Defense and Security Council was created.  What was the structure of this organization?  How did it relate to the Transitional Council headed by Shonekan?

Decree No. 3 of 1994

Constitutional Conference announced April 30.

Decree No. 10 of 1994 dissolved the gas workers’ union.
This series of decrees, numbers 5 through 10, gave Sani Abacha nearly total power.  Number 12, Federal Military Government (Supremacy and Enforcement Powers), especially important for its negative effects on the judiciary

Decree No. 18 (November) 1994 on Failed Banks
Legalizes detention of executives of some banks.

Decree No. 4 of 1996
Restrictions on labour.

Decree No. 26 of 1996
Restrictions on labour.

Decree No. 12 of 1998
Repeal of Decrees 9 and 10 of 1994 which weakened labour dramatically.

Structure and Administration of Judiciary under the Military:

The judiciary experienced challenges under prolonged military dictatorship. The various decrees promulgated by the Nigerian military government have deprived the judiciary of much of its independence. The fundamental human rights of the citizens were also casualties of the military regimes. The extent to which this was the case is also examined in this paper. With the Military intervention in Nigeria’s political process in January 1966, there was an assault on the Republican Constitution of 1963 through the promulgation of Decree No. 1 of 1966:

The Section 1 of Decree No. 1 of 1966 suspended some provisions of the constitution and the unsuspended provisions were made to have effect subject to the modifications in the decree. Section 6 of the decree ousted the jurisdiction of the courts to inquire into the validity of the decree. Decree No. 1 was the forerunner of other numerous decrees which suspended or modified the various constitutions of the country. This decree laid the foundation on which others were built. 1

Achike and Jemibewon had similar view on how the military treated the issues of the judiciary and also the independence of the courts under the military regimes.  Achike stated that,’ a close study of the key decree by the military administration- the famous Decree No. 1 of 1966, and the subsequent amendments made thereof shows quite clearly that the judiciary was least affected by the swift changes precipitated by the three military revolutions that have occurred in Nigeria between 15th January, 1966 and 29 July, 1975”.2 The court system also maintained the same structure as it was before the military revolutions. It is a structurally unified system with a clear apex and a clear base.

Jemibewon also pointed out that, “Neither Ironsi’s regime nor Gowon’s, nor even Murtala/Obasanjo’s regime carried with it the full rigour of rigid deprivations usually associated with, or incidental to, the establishment of full-scale military oligarchies”, He pointed out that, “the judiciary which is the bedrock of democracy and custodian of fundamental freedoms were left absolutely free, impartial and independent so that not only was there a marked absence of political interference in the routine work of the judiciary and in the appointment and disciplinary control of judicial officers, there was unimpeded access to the law courts”

Under classic oligarchies, according to Jemibewon, “it is absolutely impossible to conceptualize a situation in which a regime loses any case in the court (usually special tribunals) or one in which the judiciary exercises its full functions. Exceptions according to Jemibewon, were military decrees and edicts with “ouster clauses” which had the effect of completely ousting the jurisdiction of the courts on the basis of “ultra vires doctrine”.5  An example was the celebrated case of Lakanmi and Kikelomo Ola, v, Attorney-General (Western State) and others, where the court declared a decree of the Federal Government as invalid. The consequence was a firm reminder to the courts of the limits of their competence by the promulgation of the Federal Military Government (Supremacy and Enforcement of Power Decree, Decree No.28 of 1970, which not only asserted that the 15 January 1966 event was a revolution, but also that the 29 July, 1966 event was a revolution, both of which changed the legal order preceding them. The provisions of Decree No. 28 of 1970 ousted the jurisdiction of the court in 1971.

The military tribunals enforced draconian laws as quick form of justice on most cases brought before them, thereby disregarding the due process of legal court proceedings. Similarly, a number of tribunals were set up to try certain offences. A few of them would be mentioned here. Under Decree  No. 2  of 1984 (State Security Detention of Persons) empowered the Chief of Staff, Supreme Headquarters to detain any person found guilty of acts prejudicial to state security and Decree No. 4 of 1984,Public Officers (Protection against False Accusation) it was an offence for any media to transmit without justification any false message, rumor, report or statement calculated for ridicule the Federal or State Government  or any public officer as defined in Decree No. 4 of 1984.8 Penalties were imposed on violators.

The judiciary which was expected to be independent existed to ensure that these rights were not infringed upon. The setting up of the constitution  review study group by General Ironsi in 1966; General Murtala Muhammed’s constitution Drafting Committee 1975-1976; General Babangida’s political Bureau of 1986-1987 and General Abacha’s 1995 constitutional conference made little or no difference in suspending the Constitution on assumption of office by some of the military regimes.

The primary role of the judiciary in any country is to interpret and safeguard the laws of the land as well as adjudicate in disputes involving individuals, organizations and governments. The interpretation of law is   usually exercised through the courts, which have the authority to determine the facts, interpret and apply the law. 9 The judiciary in any country especially in democratic societies and some emerging democratic nations act in such a way that the rights of the citizens and rule of law are adequately protected. This pre-supposes independence of the judiciary. Achike outlined some of the indices for the independence of the judiciary, he states that:

The indispensable requisite of a free society under the rule of law; implies freedom from interference by the executive or the legislature with exercise of the judicial functions; but does not mean that the judgeis entitled to act in an ordinary manner. His duty is to interpret the lawand the fundamental principles and assumptions that underline it. It is implicit in the concept of independence that provisions should be made for the adequate remuneration of the judiciary and that a judge’s right to term of office be altered to his disadvantage.

A true independence of the judiciary is that which neither the executive nor the legislative arms of government interferes with the function of the judiciary. An independent judiciary is universally acknowledged as one of the most defining and definitive features of a functional democracy. Many, in fact, see it as an essential bulwark against abuse of power, authoritarianism and arbitrariness. In a more recent case under the administration of General Babangida, the Supreme Court in its ruling reminded the military that it could abolish the judiciary as it had done with the legislative branch, if it [the military] was not prepared to obey court rulings and court orders.

However, Section 2(b)(i) of Decree No. 12 of 1994 states that,

No civil proceedings shall lie or be instituted in any court for or on account or in respect of any act, matter or thing done or Purported to be done under or pursuant to any Decree or Edict And if such proceedings are instituted before, or after the Commencement of this Decree the proceedings shall abate, be Discharged and made void.

This provision effectively ousted the competence and jurisdiction of the courts from enquiring into the validity of decrees made by the military government. Similar provisions are contained in almost all decrees affecting human rights proclaimed by the military since 1994. Most courts cited the provision as a basis for declining jurisdiction, especially in cases involving violations of human rights by the military authorities. Further illustration of the problem posed for the rule of law and for the promotion and protection of human rights under military rule is provided by the combined effect of the following features of military enacted decrees: retroactivity; ouster clauses; legislative judgment; and prohibition ofjudicial appeal.

The courts have also insisted that executive actions purportedly Exercised under an enabling decree or edict must strictly comply with the procedure laid down by the Decree or Edict.

The independence of the judiciary is an important recognizable aspect of a true democracy. The courts must be independent of the executive, they must not be biased to any political party and must administer laws which have received the broad assent of the larger majority in the legislative assemblies and have been signed by the president or state government or customary laws consecrated by time, that these courts are free from the threat of mob violence and free of all association with political parties. Independent and professional judges are the foundation of a fair, impartial and constitutionally guaranteed system of courts of law known as the judiciary.

SUSPENSION AND MODIFICATION OF THE CONSTITUTION

Under military rule, the constitution only exists to the extent it is not suspended and modified. It exists subject to existing decrees and sometimes even subject to edicts. The constitution generally loses its binding force and substance. It almost becomes a mere paper. The source of power base of the country moves from the people and the Constitution to the ruling military council who h may combine and exercise all the powers of government such as:

1.   Legislature: it is the sovereign and highest law making body in the country

2.   Executive: it is legally the highest and sovereign executive body. Legally it can do anything. Though technically and as a matter of fact all executive powers resides in the Head of State  and he exercises it through the National Council of Ministers or Cabinet, Officers, persons or Administrative authorities and agencies of the government

3.   Judicial: it may also exercise judicial powers from time to time, by appointing itself, the appellate body in respect of any matter or legal proceedings as it desires. It may also by law nullify the decision of any court. In this context, it is technically the highest “court” in the land whenever it appoints itself as the appellate body of last resort in any matter under the relevant statute.

The first decree of the ruling military council is usually the constitution (suspension and modification) decree. It usually decree number one, except there is an existing one which has not been repealed. This Decree usually gives the military legal basis to rule. It usually set out the basic framework for the government of the country and the component states as from the date of the coup or take over, and it also provides for the suspension from operation of various provisions of the constitution.

The constitution (suspension and modification) Decree No. 1, 1966 in section 1 provided:

The federal military government hereby decrees as follows:

1(1) The provision of the constitution of the federation mentioned in schedule 1 of this decree are hereby suspended.

1(2) Subject to this and any other decree, the provisions of the constitution which are not suspended by subsection (1) above shall have effect subject to the modifications specified in schedule 2 of this decree

The equivalent of this decree and which also has the above quoted section 1, as it section 1, is the constitution (suspension and modification) decree  No. 1, 1984 and formally cap 64 laws of the federation of Nigeria, 1990 as amended. Other notable provisions of the 1984 decree are:

Section 2(1)

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.

This section together with section 22(4) makes for a unitary sysytem of government, for the country. This decree displaces the doctrine of separation of powers, and bridges the sharing of power between the federal and state government. Section 5 provides:

No question as to the validity of this decree or any other decrees, made after the commencement of this decree or of any decree or edict shall be entertained by any court of last in Nigeria.

Section 6 vests the executive of federal republic of Nigeria in the Head of State. The executive authority may be exercised by the Head of State direct or through persons or authorities surbordinate to him, including the national council of ministers or cabinet. By section 12, the ruling mitary council determines the work of the national council of ministers, whilst section 10(1)(e) vests the general supervision of the work of the national council of ministers in the ruling military council.

Section 10(2) vests all the power of the national assembly in the ruling military council. Section 16(4)(b)  vests the functions of a state governor in the military governor of a state, whilst section 16(4)(c) vests the powers of a state house of assembly in the executive council of a state. By section 3(1), a decree is made when it is signed by the head of state. Equally, by section 3(2) an edict is made when it is signed by the military governor or administrator of a state.

Provision is made under various sections fro the Head of State to delegate functions to other persons or authorities. However, section 6(9) empowers  the Head of State to vary or revoke any power or function delegated by him to any other person or authority.

Other notable decrees of a military government are:

1.   The federal military government (supremacy and enforcement of powers) decree; which enables the government to enforce its powers over all authorities and persons and over the whole country in general; and

2.   The state security (detention of persons) decree; under which persons may be detained at the pleasure of the government.

Finally, during military rule it is usually provided by decree, that nothing in the constitution shall render any provision of a decree or edict void to any extent whatsoever. The case of Lakanmi & Anor v A. G. Western State is am illustration of the supremacy of decrees over the constitution and rule of law. Military rule means the prevalence of martial law, arbitrary law, rule of might and rule of men.

Lakanmi & An or v A. G. Western State & Ors:

The tribunal if inquiry into the asset of public officers, western state, set up under the public officers and other persons (investigation of assets) edict No. 5, of 1967 made an order vesting the properties and accounts of the plaintiffs appellants in the state government shall otherwise direct.

The plaintiffs challenged the validity of the edict in the high court and sought an order of certiorari to quash the order of the tribunal. The high court held that the order was not ultra vires and that edict was validly made. However by decree 45 of 1968, the federal government validated the subject matter of the action a d iutsed the jurisdiction of court. On further appeal the supreme court held: in favour of the appellants quashing the order of the tribunal on the ground that decree 45 of 1968 which especially named the appellants in its schedule and validated all acts done under the edicts whether they were wrong or wrongly done was a legislative judgement, a legislative sentence, an exercise of judicial power by the military, and therefore null and void.

However, the decision of the supreme court was overruled and set aside by the federal government by the promulgation of the federal military government (supremacy and enforcement of powers) decree No. 28 of 1970 which ousted the jurisdiction if court from inquiring I to the validity of any decree or edict. By this decree the federal military government made it clear that decrees are the supreme laws of the land and that the validity of edicts also cannot be challenged in court except to the extent it clashes with a Decree.

In Lankanmi's case the supreme court said that, in the absence of anything to the contrary, it has to be admitted that the structure if our constitution is based on separation of powers – the legislature, this executive and the judiciary and that based on this separation if powera , the military government being the executive ought not to exercise judicial powers, that is function, or jurisdiction of the courts. It should not usurp the functions of the judiciary.

DEMARCATION OF FUNCTION OF GOVERNMENT:

What are the Functions of Government?

          The question has its owndifficulties and complexities: it cannot be answered out of hand and by thelist, as the physiologist might answer the question, what are the functions of the heart?  In its nature government is one, but in its life it is many: there are governments and governments.  When asked, therefore, what are the functions of government?  We must ask in return, Of what government? Different states have different conceptions of their duty, and so undertake different things.  They have had their own peculiar origins, their own characteristic histories; circumstance has moulded them; necessity, interest, or caprice has variously guided them.  Some have lingered near those primitive institutions which all once knew and upheld together; others have quite forgotten that man ever had a political childhood and are now old in complex practices of national self-government.

1474. The Nature of the Question. - It is important to notice at the outset that this is in one aspect obviously a simple question of fact; and yet there is another phase of it, in which it becomes as evidently a question of opinion.  The distinction is important because over and over again the question of fact has been confounded with that very widely different question, What ought the functions of government to be?  The two questions should be kept entirely separate in treatment.  Under no circumstances may we instructively or safely begin with the question of opinion: the answer to the question of fact is the indispensable foundation of all sound reasoning concerning government, which is at all points based upon experience rather than upon theory.  The facts of government mirror the principles of government in operation.  What government does must arise from what government is: and what government is must determine what government ought to do.

1475. Classification. - It will contribute to clearness of thought to observe the functions of government in two groups, I.  The Constituent Functions, II,  The Ministrant  Under the Constituent I would place that usual category of governmental function, the protection of life, liberty, and property, together with all other functions that are necessary to the civic organization of society, - functions which are not optional with governments, even in the eyes of strictest laissez faire, - which are indeed the very bonds of society.  Under the Ministrant I would range those other functions (such as education, posts and telegraphs, and the care, say, of forests) which are undertaken, not by way of governing, but by way of advancing the general interests of society, - functions which are optional, being necessary only according to standards of convenience or expediency, and not according to standards of existence; functions which assist without constituting social organization.

1476. Of course this classification is based primarily upon objective and practical distinctions and cannot claim philosophic completeness. There may be room for question, too, as to whether some of the functions which I class as

Ministrant might not quite as properly have been considered Constituent; but I must here simply act upon my own conclusions without rearguing them, acknowledging by the way that the line of demarcation is not always perfectly clear.

1477. "The admitted functions of government," said Mr. Mill, "embrace a much wider field than can easily be included within the ring-fence of any restrictive definition, and it is hardly possible to find any ground of justification common to them all, except the comprehensive one of general expediency."

1478. I. The Constituent Functions:

(1) The keeping of order and providing for the protection of persons and property from violence and robbery

(2) The fixing of the legal relations between man and wife and between parents and children.

(3) The regulation of the holding, transmission, and interchange of property, and the determination of its liabilities for debt or for crime.

(4) The determination of contract rights between individuals.

(5) The definition and punishment of crime.

(6) The administration of justice in civil causes.

(7) The determination of the political duties, privileges, and relations of citizens.

(8) Dealings of the state with foreign powers: the preservation of the state from external danger or encroachment and the advancement of its international interests.

These will all be recognized as functions which are obnoxious not even to the principles of Mr. Spencer, ^1 and which persist under every form of government.

The Ministrant Functions - It is hardly possible to give a complete list of those functions which I have called Ministrant, so various are they under different systems of government.  The following partial list will suffice, however, for the purpose of the present discussion:

(1) The regulation of trade and industry.  Under this head I would include the coinage of money and the establishment of standard weights and measures, laws against forestalling and engrossing, the licensing of trades, etc., as well as the great matters of tariffs, navigation laws, and the like.

(2) The regulation of labor.

(3) The maintenance of thoroughfares, - including state management of railways and that great group of undertakings which we embrace within the comprehensive term 'Internal Improvements.

(4) The maintenance of postal and telegraph systems, which is very similar in principle to (3).

(5) The manufacture and distribution of gas, the maintenance of water-works, etc.

(6) Sanitation, including the regulation of trades for sanitary purposes.

(7) Education.

(8) Care of the poor and incapable.

(9) Care and cultivation of forests and like matters, such as the stocking of rivers with fish.

(10) Sumptuary laws, such as 'prohibition' laws 

These are all functions which, in one shape or another, all governments alike have undertaken.  Changed conceptions of the nature and duty of the state have arisen, issuing from changed historical conditions, deeply altered historical circumstances; and part of the change which has thus affected the idea of the state has been a change in the method and extent of the exercise of governmental functions; but changed conceptions have left the functions of government in kind the same.  Diversities of conception are very much more marked than diversities of practice.

Legislation Under The Military

Legislature The legislature is an assemblage of the representatives of the people elected under a legal framework to make laws for the good health of the society. It is also defined as “the institutional body responsible for making laws for a nation and one through which the collective will of the people or part of it is articulated, expressed and implemented” (Okoosi-Simbine, 2010:1). The legislature controls through legislation all economic, social and political activities of the nation. It also scrutinizes the policies of the Executive and provides the framework for the judiciary to operate. In light of the foregoing, we cannot talk about democracy in any meaningful form or manner without the legislature. Roles of the legislature The National Assembly, which, in our case consists of the Senate and House of Representatives, is vested with the legislative powers of the Federation. Section 4(1) under Part II of the Constitution states inter alia: “The Legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives”, It goes further, in Section 4(2), to state as follows: “The National Assembly shall have power to make laws for the peace, order and good government of the federation with respect to any matter included in the Exclusive Legislative List”. For the purpose of explanation, the Exclusive Legislative List, which is contained in Part I of the Second Schedule to the Constitution deals with specific items which only the National Assembly has the sole prerogative to legislate upon, to the exclusion of the States and Local Governments. For example, the items, which are 68 in number, include defence, aviation, currency, customs and excise duties, citizenship, drugs and poisons, copyright, insurance, external affairs and meteorology. On the other hand, there is the Concurrent Legislative List provided for under Part II of the Second Schedule to the Constitution. It includes 30 items. It is called Concurrent List because the Constitution allows both the National Assembly and the State Houses of Assembly to legislate on the items so specified. The 30 items include the following amongst others: public funds at state and local government levels, antiquities and monuments, collection of taxes, stamp duties, voter registration in the local government councils, agriculture, education, cadastral and topographical surveys etc. There is yet another category of powers described as residual list. This is the exclusive prerogative of the States. This is the implication of the provisions of Section 4 (7a) of the 1999 Constitution (as amended). A comparative study of the National and State Legislatures, in the discharge of the enormous powers bestowed upon them by the Constitution since the inception of the current democratic experiment, clearly shows that, whereas the National Assembly has been very assertive and proactive, most State Legislatures, regrettably, have allowed themselves to be completely emasculated and castrated by the State governors who, in several instances, have been very over-bearing in the way they conduct the affairs of their various States. In simple terms, the legislature performs three basic Roles namely: lawmaking, representation and oversight. So, in the House of Representatives, we make laws, we carry out representative functions on behalf of the people who in our case, are demarcated in 360 federal constituencies, and we oversight the executive arm of government which include the Ministries, Departments and Agencies (MDAs), to ensure that government is held accountable to the people from where it derives its sovereignty. Misconceptions I must admit that the National Assembly has suffered from such public misconceptions since the inception of the Fourth Republic in 1999. This is not without any justification if the truth must be told. However, to really understand and appreciate the legislature, we should accept the fact that the legislature is part and parcel of the larger Nigerian society. To this extent, whatever affects the Nigerian society similarly affects the legislature. We are Nigerians and therefore subject to all the frailties and foibles of the larger society. The National Assembly like any other Nigerian institution has had its high and low points. From the inception of this political dispensation in 1999 it has had its own share of scandals including certificate forgeries, contract scams and bribery sagas. Over time, and with some internal control measures put in place, the National Assembly, in the light of experience, has become a pre-eminent legislative institution for which Nigerians should be proud of. You should be proud of the National Assembly not because scandals will not erupt once in a while, but the House of Representatives, as an institution, has mechanisms in place to deal with such matters as they arise. The disciplinary process contained in the Standing Orders of the House is robust enough to contain and deal with any scandals and the individuals involved. The initial problems that enveloped the National Assembly in the beginning had given rise to misconceptions and misunderstanding by members of the public. The problem of misconception also derives from the crises of expectations on the part of the electorate. It is even more worrisome when it is realized that enlightened members of society, including those from the ivory tower, confuse the roles of the legislature with those of the executive. Experience in consolidating democracy The common dictionary meaning of the word ‘experience’ is the process, or an instance, of personally encountering, or undergoing something. It also means the knowledge gained from such a process. When we talk about the experience of the legislature in the consolidation of democracy in Nigeria, we are actually talking about the knowledge we have gained in the discharge of our legislative functions over the last 13 years of democratic practice in the country. There is, no doubt, that, in the past 13 years of uninterrupted democratic and legislative practice, the National Assembly has learnt some useful lessons that have continued to serve it in good stead. This is evident in the sanity and serenity that have continued to reign in the National Assembly particularly since the inception of the 7th Assembly. Notwithstanding the recent developments in which one of our colleagues was fingered in an alleged bribery scandal, the House has continued to insist on probity and accountability in the conduct of not only public policy but also in the management of its legislative business and the ethical conduct of members. As we continue in our march to deepen and consolidate the gains of our democracy, we can only get better in the discharge of our mandate. Constitutional Development The country’s constitutional and political development suffered a major set-back with the overthrow of the civilian regime in January 1966 by the military which also suspended the 1963 Constitution. The chain of events that followed degenerated into a civil war which ended in 1970. The military continued to dominate the political space; ruling with decrees. In 1977, a Constituent Assembly was constituted to consider a draft constitution proposed by the Chief Rotimi Williams-led Constitution Drafting Committee preparatory to the return to democratic rule. In 1979, the Presidential Constitution was promulgated and on October 1, 1979 democratic rule was restored. The 1979 Constitution introduced the American model of Presidential System of governance; a system we have retained till date. Sadly, in December 1983, the military intervened again. It also put in place a Constituent Assembly which produced a draft constitution. The result was the 1989 Constitution under which elections were conducted to the National and State Houses of Assembly and Governorship in 1991. That process gave birth to the National Assembly of 1992-1993 under the superintendence of the military High Command. On November 17, 1993 all democratic structures were dissolved by the military, the country was once again returned to full-blown military dictatorship. However, in 1998, a new military administration appointed a Constitution Review Committee headed by a Supreme Court jurist, Justice Niki Tobi, to consult with Nigerians and submit a Draft Constitution. The result was the 1999 Constitution which brought the 4th Republic into being. Since 1999 till date, the legislature in Nigeria has functioned uninterruptedly and discharged its constitutional duties as a separate arm of government. The brief excursion into our historical past especially the various efforts at Constitutional developments is important, in my view, for us to properly situate the legislature in our political process and appreciate its role and the challenges it has continued to face over time. Fourth Republic and the instability in the legislature: The legislature has remained the most underdeveloped arm of the government. This is for obvious reasons. For the greater part of our nationhood, the military has held the political centre-stage. And for the cumulative period of 29 years that the military controlled power in Nigeria, the legislature was the greatest casualty, as it was always the first democratic structure to be dissolved, and its powers appropriated and exercised by the military juntas. This limited experience on the part of the legislature, compared to the other arms of government, may have accounted for the series of crises that the National Assembly has witnessed, particularly at the inception of the Fourth Republic. The Enwerem-Okadigbo era: The crisis of leadership, which attended the inauguration of the 4th National Assembly, was largely due to external interference. The political leadership that emerged in 1999 was coming from a military background where the idea of a legislature was totally unknown or greatly detested. This mental construct or military hang-over was primarily responsible for the adversarial relationship that was witnessed between the Executive and the Legislature between 1999 and 2007

Conclusion

In modern times, two forms of government are common. These are democracy and dictatorship. In a dictatorship, whether it be military or civilian, the institutions of the State are defective, stifled and lack full capacities. They discharge their functions in an indifferent, arbitrary and superficial manner, because they are ultimately controlled by one person, the dictator, who appoints people who do his will, right or wrong. He rules by decrees and without a regular parliament and manages the affairs of the people according to his desires. The people are denied civil liberties which conflict with the dictator’s will. He remains in office by ensuring that the people are subject to his will, inarticulate and powerless. In a military rule or dictatorship, the ruling military council is the sovereign and supreme body and the highest authority in the country. The ruling military council displaces both parliamentary supremacy and constitutional supremacy that is; sovereignty of the people and becomes the supreme authority in the country. All government powers reside in and flow from it.

The Decree becomes the supreme law of the land. Decrees and even edicts in some instances then take precedence over any other law. The ruling military council becomes the sovereign law maker or parliament as obtains in a parliamentary sovereignty with unlimited powers to make and repeal laws for the peace, order and good government of the country with respect to any matter whatsoever.

The ruling military council is usually made up of the Head of State, who is the head of government and Commander in Chief of the Armed Forces as chairman of the Council, and such other members made up of the military topbrass, as he may appoint. The ruling military council has, during military rule in Nigeria, been known at various times as the:

     i.        Supreme Military Council (SMC); under Major General Johnson Thomas Umunakwe Aguiyi-Ironsi (January – July 1966), General Yakubu Gowon (July 1699 – July 1975), General Murtala Ramat Mohammed (July 1975 – February 1976), General Matthew Olusegun Aremu Obansanjo (February 1976 – September 1979), Major General Muhammadu Buhari (January 1984 – July, 1985).

   ii.        Armed Forced Ruling Council (AFRC); under General Ibrahim Badamisi Babangida (August 1985 - 1993).

  iii.        National Defence and Security Council (NDSC); during the later part of the regime of General I. B. Babangida (1992 - 1993).

  iv.        Provisional Ruling Council (PRC); under General Sani Abacha (Nov. 1993 – July, 1998) and General Abdulsalami Alhaji Abubakar (July, 1998 – May 1999).                        

The powers of law enforcement are assigned under the constitution to the executive and the judiciary. Furthermore, modern constitutions usually expressly outlaw and prohibit another type of legislative trial that is legislative judgement, know historically as a bill of attainder, by clearly assigning judiciary functions to the judiciary.

Military Governor of Ondo State v Adewunmi:

The plaintiff respondent sued the appellant challenging the validity of an election to the stool of Ewi of Ado-Ekiti. During the pendency of the case the Governor promulgated Chief Edict No. 11 of 1984 which purportedly ousted the jurisdiction of court. The respondent challenged the Edict by a declaratory action, that the Edict was illegal, unconstitutional, null and void for being inconsistent with the Constitution (suspension and Modification) Decree No 1, of 1984. The Supreme Court held: that an Edict made by a Military Governor which is inconsistent with any law made by the Federal Military Government before or after it comes to power is void to the extent of its inconsistency. In a military government the organic, fundamental, supreme law or grundnorm of Nigeria is:

       i.        The Constitution (Suspension and Modification) Decree;

     ii.        Any Decree amending it, and

    iii.        Unsuspended sections of the Constitution of the Federal Republic of Nigeria.

Whatever is in consonance with the organic law, fundamental law or grundnorm is valid, but whatsoever is in conflict with the supreme or organic law is ultra vires and therefore void. A Military Governor of a State has no power to legislate on any matter included in the Executive Legislative List relating to Federal Legislative Powers except with the prior consent of the Federal Military Government. A Military Governor has no power to make any law which is inconsistent with any law made by the Federal Military Government. A High Court is competent to entertain an action challenging and Edict on the grounds that us inconsistent with the provisions of a Decree or the unsuspended provisions of a Decree or the unsuspended provisions of the Constitution. In essence, an action can be instituted in a High Court challenging the validity of an Edict, if the Edicts violate the organic law or grundnorm of the country or any other Decree or the unsuspended provisions of the Constitution.

By the doctrine of “Covering The Field” in Nigeria’s Federation, where the Federal Government has validity legislated on a matter, any State legislation on the same matter which is inconsistent with the Federal legislation will void to the extent of the inconsistency.

In this case Nnaemeka-Agu JSC said:

“It is of course, a well know principle of our federalism, under the doctrine of covering the field, that where the Federal Government has validly legislated on any matter, any State legislation on the same matter which is inconsistent with the Federal legislation will be void to the extent of the inconsistency.”

Whereas the legislative powers of the Federal Government were under the 1979 Constitution, restricted to the Legislative Lists and limited thereby, the legislative powers of the Federal Military Government are by virtue of the Constitution (Suspension and Modification) Decree unlimited and unrestricted by any legislative list and legislative power is exercisable on any matter whatsoever and over the whole country or any part thereof.

In the case of Military Governor of Ondo State v Adewunmi the Supreme Court stated the hierarchy superiority of legislative authority, that is, the hierarchy of laws during military rule in Nigeria as follows:

       i.        Decrees of the Federal Military Government;

     ii.        Unsuspended Provisions of the Constitution;

   iii.        Existing Laws of the National Assembly;

    iv.        Edicts of the Military Governments of the States, and

      v.        Existing Laws of the States.

Thus, any provision of the law of a State or Edict of a Military Governor which is inconsistent with existing laws of the National Assembly or unsuspended and unmodified provisions of the Constitution or the Decrees of the Federal Military Government is void to the extent of such inconsistency. Where the provisions of an Edict are not shown to the consistent with a Decree or an Edict, no court shall exercise jurisdiction to declare the validity or otherwise of such an Edict. The 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 1 of 1984 or any other Decree, subject to the provisions of any Decree, is supreme and its provisions shall having binding force on all authorities and persons throughout Nigeria.

In Obaba v Military Governor of Kwara State, the Supreme Court examined the position of the Constitution both under a democratic government and under a military regime. It also examined the purport of the Federal Military Government (Supremacy and Enforcement) Decree. Normally, in a democratic system of government, the Constitution is supreme and all laws flow from the Constitution is void under section 1 of the Nigerian Constitution. However, in a military regime, a different situation arises whereby the Constitution itself is subordinate to a Decree of the Federal Military Government and according to the provisions of section 5 of the Constitution (Suspension and Modification) Decree. No. 1 of 1984, no question as to the validity of any Decree or Edict shall be entertained by a court of law, save that, if any law made by the Military Governor of a State is inconsistent with any law.

     i.        Validity made by the National Assembly or having effect as if so made; or

   ii.        Any Decree made by the Federal Military Government, such Edict shall to the extent of the inconsistent be void.

The purport or intent of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984 was to ensure that, unless the exercise of the power to make laws for the peace, order and good government of a State, exercised by the Governor thereof was inconsistent with a Decree of the Federal Military Government or the Constitution (Suspension and Modification) Decree, 1984, there shall be no question as to the validity of the edict of a Military Governor of a State in any court of law.

REFERENCE

The Nigerian Constitutional Law, 3^rd Edition; Ese Malemi 2012

https://google.com