In 1914, by an act of amalgamation, Britain created Nigeria. In 1960, by the Doctrine of Recognition, Britain established Nigeria as a colonial State. However, the subsequent form and format of the colonial State of Nigeria was created by local agreement. In the first agreement, in 1960, Nigeria became the ‘Federation of Nigeria’ (Section 2 of the 1960 Constitution) with partial sovereignty, pursuant to an agreement that Britain had concluded with representatives drawn from the Protectorates, that is to say, Eastern, Northern and Western Nigeria. In the second agreement, in 1963, by a Nigeria legislative Act, the ‘Federation of Nigeria’ became a fully sovereign ‘Republic’ (Section 2 of the 1963 Constitution).
The 1960 Constitution was a formal contract (the ‘Nigeria Contract’); Section 1 says: ‘This constitution shall have the force of law’, meaning it was legally binding. The parties to the contract were Eastern, Northern and Western Nigeria. The 1960 Constitution included the ‘right to terminate’ the agreement; Section 4(1) says: ‘Parliament may alter any of the provisions of this constitution’. Thus, only ‘Parliament’ to which Eastern, Northern and Western Nigeria had contributed members was entitled in law to terminate the ‘Nigeria Contract’.
The 1963 Constitution was a superseding, legislative act (the ‘Republic Contract’); Section 1 says: ‘This constitution shall have the force of law’, meaning it was legally binding. The parties to the contract were Eastern, Northern and Western Nigeria. The 1963 Constitution included the ‘right to terminate’ the agreement; Section 4(1) says: ‘Parliament may alter any of the provisions of this constitution’. Thus, as before, only Eastern, Northern and Western Nigeria, as contributors to the ‘Parliament’, and no other, had the legal right to terminate the ‘Republic Contract’.
On 15 January 1966, a military coup d’état made the ‘Republic Contract’ physically impossible to perform. The military usurpers murdered elected officials in cold blood as they replaced Nigeria’s elected parliaments with themselves. A military coup was not an event that was foreseeable to the parties to the ‘Republic Contract’ in 1963; that military coups would be recurring events also was not foreseeable in 1963. The military intervention in Nigeria thus was in the nature of a force majeure.
Courts in several jurisdictions, nearly all in developing countries, have made determinations in favour of legality for coup d’états based on the political theory of Hans Dryden, the theory of revolutionary legality or ‘might is right’. Theory is just theory and not law, however. The Supreme Court of Cyprus in Liasi v Attorney General (1975) CLR 558 passim Cyprus has provided the most intellectually reasoned determination on this After conducting extensive research dating back to the Roman times, the Court described two legal tests that should be applied when determining the legality of a coup d’état:
i. Substantive test – ie popular acceptance, even if tacit.
ii. Formal test – ie recognition of the coupist actions by the next lawful government.
The Nigeria coup d’états failed to meet the Substantive test of legality in that there was no public acceptance of it at any time. The coup d’états when staged were accompanied by extreme violence and deaths, and subsequently by the assassinations or detention of non-military opponents, such as, Ken Saro-wiwa and Mosood Abiola. There was in 1967 a civil war, the Biafra War, which lasted three years and claimed over 2 million lives. Several organisations of the civil society, such as, NADECO, were formed specifically to oppose the military rule. Several legal challenges were instituted in the Nigerian courts. Indeed, in the early days, Nigerian Courts defied the usurpers by distinguishing the 1966 coup d’état from the military government. In Council of the University of Ibadan v Adamolekun (1967) 1 All NLR 213 (Nigeria), the Court held that the military government was only an agreed takeover, that the 1963 Constitution was alive and that military decrees were inconsistent with it. In Lakanmi v Attorney-General Western Nigeria (1970) SC 4 LLER 1 (Nigeria), the Court held that the military takeover was an invitation, not a revolution and was therefore not conferred with unfettered legislative power.
The Nigeria coup d’états failed to meet the Formal test of legality in that they were felonious acts that contravened Nigeria’s Penal Codes 37(1) and 61, which were existing laws throughout the military interregnum, and which attracted the punishment of imprisonment or death. The 1999 Constitution, imposed on Nigeria by the coupists, deliberately hamstrung the next lawful government to ensure that coupists were never brought to account for their actions. Most of the politicians that were punished or removed from office by the coup d’états were returned to office by election after the military demitted office; many dismissed officials were returned to office one way or another.
It is clear from the foregoing that military rule in Nigeria was ‘legally non-existent’ so that the force majeure tag was not invalidated. By being a force majeure, Nigeria’s coup d’états entitled Western Nigeria legally to terminate the ‘Republic Contract’ and go it alone.