Force Majeure may be quickest route to self-determination

Nigeria law recognises force majeure as a legal concept (see for example, the cases of Diamond Bank ltd v Ugochukwu and AG Cross Rivers State v AG Federation & Anor). Force majeure refers to the situation where a supervening event beyond the contemplation and control of the parties, such as a change of circumstances, destroys the very foundation upon which the contract rests so that dissolution of the affected contract becomes inevitable.
 
A constitution is the contract between the people and their government. In 1999, a constitution was imposed on Nigeria by military fiat (Decree No. 24, 5 May 1999). That military fiat is a force majeure. The people had not contemplated it and they had no control over it. The people’s legitimate expectation at that time, based on their previous experiences of constitution writing, was that their representatives would write the 1999 constitution. The military fiat prevented this from happening and that act of prevention invalidated the 1999 constitution.
 
Invalidating the 1999 constitution does not create a constitutional vacuum in Nigeria, however. The 1963 Republic constitution, which was written by an assembly of elected representatives is available to resurrect. On 16 December 2020, the Indigenous Nationalities of Southern and Middlebelt Territories of Nigeria (INSMTN) requested that the Federal Government dissolve the 1999 constitution and resurrect the 1963 constitution. The Federal Government has not indicated a response and, judging by its past attitude, is not likely to do so. The INSMTN could litigate to enforce the force majeure at both domestic and international courts. Litigation takes time, however, and there may be jurisdictional issues. The INSMTN has locus standi to seek a UN resolution and should do so immediately. The Security Council is not a court of law, but its resolution has the force of law.