Nigeria’s 1999 constitution was founded on illegality
Two prior felonious acts render Nigeria’s 1999 Constitution illegal. On 15 January 1966, the Nigeria army carried out a coup in which they murdered amongst others, Chief Akintola, the Yoruba premier of Western Nigeria at the time. That coup was a crime against the state. It was an insurrection. It was an internal treason. The soldiers attacked the state to which they had sworn, and owed, allegiance. The Nigeria Penal Code provides no means by which this treasonous crime could be expunged or forgiven. There is no statute of limitation applicable. All governance and political acts since 15 January 1966, whether handing power to civilians or staging other coups, are offspring of the 1966 coup. They are all illegal because they are by-products of a crime. The 1999 Constitution being the offspring of the crime of treason committed by the 1966 coup, is also illegal. The military simply did not have the power to erase or whitewash their crime against the state by imposing a constitution on Nigeria.
Nigeria Penal Code 37 (1) says: ‘Any person who levies war against the State, in order to intimidate overall the President or the Governor of a state, is guilty of treason, and is liable to the punishment of death. [L.N.112 of 1964, 1967 No. 27].’
Nigeria Penal Code 61 says: ‘Any person who advisedly does any unlawful act calculated to interfere with the free exercise by the President or a Governor of the duties or authority of his office or with the free exercise by a member of the Federal Executive Council, or a State Executive Council of his duties as such member, is guilty of a felony, and is liable to imprisonment for three years. [L.N. 2 of 1960. L.N. 112 of 1964. 1967 No. 27.]’
On 29 May 1999, the military imposed a new constitution on Nigeria. The constitution preambles with ‘We the people of the Federal Republic of Nigeria’. This declaration was false. That false pretence made the 1999 constitution inadmissible. There was no input from the people. There was no ratification by the people. The lack of ratification was not cured, as some suggest, by the elections of 1999 since those took place on 27 February 1999 before the constitution was promulgated by Decree No 4 on 5 May 1999. In other words, Nigerians went to the polls not knowing the terms of the constitution. Equally important, General Abdulsalam’s military junta knew that to be legitimate, a constitution had to be from, of and by the people hence, they set up an elaborate deception. In December 1998, the PRC instituted a 25-member Constitution Debate Committee headed by Justice Niki Tobi. The committee conveyed to the PRC that the people wished the 1979 Constitution restored, but the PRC disregarded this and promulgated instead a totally different document.
Nigeria Penal Code 418 says: ‘Any representation made in words, writing, or conduct, of a matter of fact, either past or present, which representation is false in fact and which the person making it knows to be false or does not believe to be true, is a false pretence.’
There are a number of ways to annul the 1999 Constitution. One, the current Presidency and/or National Assembly could simply declare the 1999 Constitution inadmissible. Dissatisfaction with the 1999 Constitution is widespread and members of the National Assembly themselves have persistently called for ‘restructuring’. There is currently an ongoing attempt by the National Assembly to amend the 1999 Constitution. However, since that constitution is illegal, any amendments made to it will also be illegal. Two, any Nigerian of electable age has the locus standi to seek a court declaration that the 1999 Constitution is illegal. This standing arises from electoral (civil) rights and obligations conferred on him by the 1963 Constitution to be an elector or to stand for election to either the Federal House or to one of three Regional Assembly. The 1999 Constitution self-evidently deprived him of that civil right. After the military left power following the coup of 1974, the Cyprus court (in Liasi v AG) held that the military rule was ‘legally non-existent’. The Nigerian courts have similar jurisdiction to enforce the law.
The constitution is the will of the people on how they wished to be governed. That ‘will’ cannot be abrogated by military dictat. Although constitutional provisions may be emasculated through force whilst a military junta was in power, this is temporary, however. Once the military demit office, voluntarily or otherwise, the ‘will’ of the people reasserted itself. For example, Estonia’s 1938 Constitution ‘disappeared’ under Soviet occupation, but when in 1991 the Soviet Union dissolved, their 1938 Constitution came alive again. Nigeria’s 1963 Constitution was the ‘will’ of the people expressed though their ‘representatives here in Parliament assembled’. That ‘will’ is a fact that cannot be altered by military dictat. That ‘will’ never disappeared. The 1963 Constitution cannot be repealed by military dictat. It is available to be reasserted.