It is well settled that a Military Government is an aberration. The Constitution is usually suspended
including the provisions relating to respect for fundamental rights including
the freedom of the press. It is a revolutionary Government beyond the
contemplation of the Constitution. My learned friend and Chief I commend the
cause celebre of LAKANMI
V THE ATTORNEY-GENERAL (WEST) (1970) NSCC 143,ADEMOLA, CJN (as he then was)
illuminated on the character and nature of a Military Government thus:
“...It is no gainsaying that what happened in Nigeria in January 1966 is
unprecedented in history. Never before, as far as we are aware has a civilian
government invited an army take-over, or the armed forces to form an interim
Government. We disagree with the Attorney-General that these events in January
1966 are tantamount to a revolution. As Chief Williams for the appellants puts
it, quoting from the Shorter Oxford Dictionary, a revolution occurs when
"there is an overthrow of an established government by those who were
previously subject to it" or "where there is a forcible substitution
of a new ruler or form of Government". These, from the facts, did not take
place in Nigeria in 1966 as the situation to which we have previously referred
- a rebellion by some members of the Armed Forces - caused the Acting
President, with the advice of the Council of Ministers in the absence of the
Prime Minister, to hand over power to the Armed Forces. We venture to put the
attitude of the Acting President and the Council of Ministers to the head of
the Army thus - your men have started a rebellion, which we fear may spread;
you have the means to deal with them. We leave it to you to deal with them and
after this, return the administrative power of the Government to us. Cases of
revolution abound in history and in law, and an example is to be found in
Pakistan where there is a proclamation annulling the Constitution of the
country.
In Uganda
v. Commissioner of Prisons (1966) E.A.L.R. 514;the Pakistan case of the State v. Dosso (1958), 2 P .S.C.R.
180, was referred to at page 538 in the following terms:
"That the President's proclamation of October
7, 1958 by which the Constitution of 1956 was annulled and Martial Law was
proclaimed constituted an 'abrupt political change,' not within the
contemplation of the said Constitution, that is a revolution. A victorious
revolution is an internationally recognized legal method of changing a
constitution. Such a revolution constitutes a new law creating organ, by virtue
of having become a basic law creating fact. Laws which derive from the 'old
order' may remain valid under the 'new order' only be- cause validity has
expressly or tacitly been vested in them by the new constitution, 'and it is
only the contents of these norms that remain the same, not the reason of
validity'. Further no jurist would maintain that even after a successful
revolution, the old constitution and the laws based thereupon remain in force
on the ground that they have not been nullified in a manner anticipated by the
old order itself".
The Attorney-General submits that both the
legislative and executive were swept away by the uprising in January, 1966 and
the judiciary was altered by prescribing a new code of appointing Judges; all
these he said were nothing short of revolution; that the Republican
Constitution of 1963 no more exists except and in so far as the revolutionary
government decreed: that the authority of the Federal Military Government is
not derived from the 1963 Constitution but from the revolution itself. He also
relied on Hogde v. The Queen (1883)
9 A.C. 117. The Attorney- General argued further that there is no provision in
the 1963 Constitution enabling the Acting President, in the absence of the
Prime Minister, even with the advice of other Ministers of the Council of
Ministers, to hand over the administration of the country to the Armed Forces
of the Republic. What happened, he said, was that the Government "having
ceased to function" agreed to abdicate its powers and that therefore there
was a revolution.
We think it wrong to expect that constitution must
make provisions for all emergencies. No constitution can anticipate all the
different forms of phenomena which may beset a nation. Further, the executive
authority of the Federation is vested in the President by section 84 of the
Constitution and we think in a case of emergency he has power to exercise it in
the best interest of the country, acting under the doctrine of necessity.
Moreover, it must be remembered that it is not a case of seizing of power by
the section of the Armed Forces which started a rebellion. The rebellion had
been quelled the insurgents did not seize power nor was it handed over to them.
But the state of affairs in Pakistan to which The State v. Dosso (supra) refers is different. In Pakistan the
President had issued a proclamation annulling the existing Constitution. There
was a disruption of the Constitution and the national legal order by an abrupt
political change not contemplated by the Constitution. Such a change is a revolution...”
So your assertion laced with
cynicism that “Decree No. 4 of 1984 promulgated by the Buhari Junta provided
that a person could be sent to prison for telling the truth...” is balderdash
and of no moment. Let me use the lawyerly jargon, it is non sequitor. Buhari has since reincarnated to a dyed in the wool
DEMOCRAT. He has contested three presidential elections. He had challenged vigorously
electoral robbery perpetrated by PDP from the Election Tribunal to the Supreme
Court in 2003, 2007 and 2011. He has been consistently, persistently,
vigorously and strenuously campaigning for the opening of the political space
and for free, fair and transparent elections in Nigeria since 2003. The other
day he said “I became a democrat in 1991 when I became confounded by the
collapse of the defunct Soviet Union (empire) without the firing of a shot. The
experience humbled me so much so that I elected to become a democrat...”
OKOI OBONO-OBLA
No comments:
Post a Comment