Civil war: Why Ojukwu refused to recognise Gowon as head of state – Abubakar

The refusal of Colonel Chukwuemeka Odumegwu Ojukwu to recognise Lieutenant Colonel Yakubu Gowon as Nigeria's Head of State in 1966 marked a pivotal moment in the nation's history, directly contributing to the Nigerian Civil War. This legal analysis delves into the constitutional and hierarchical arguments underpinning Ojukwu's stance, which posited that Brigadier Babafemi Ogundipe, as the most senior surviving officer after the assassination of Major General Johnson Aguiyi-Ironsi, was the legitimate successor. The article examines the legal vacuum created by the 1966 coups, the military's subsequent attempts to regularise its authority through decrees, and the judiciary's initial, albeit ultimately overridden, challenge to military supremacy. Understanding this foundational dispute is crucial for appreciating the evolution of constitutionalism and the rule of law in Nigeria under military regimes.

The tumultuous year of 1966 in Nigeria was marked by two military coups that irrevocably altered the nation's political and legal landscape, culminating in a profound crisis of legitimacy that directly preceded the Nigerian Civil War. A central figure in this crisis was Colonel Chukwuemeka Odumegwu Ojukwu, then Military Governor of the Eastern Region, whose steadfast refusal to recognise Lieutenant Colonel Yakubu Gowon as the new Head of State ignited a constitutional firestorm. Ojukwu's position was rooted in a strict interpretation of military hierarchy, asserting that in the absence of the assassinated Head of State, Major General Johnson Aguiyi-Ironsi, the mantle of leadership ought to have fallen to the most senior officer, Brigadier Babafemi Ogundipe.

This article explores the legal and constitutional dimensions of Ojukwu's challenge to Gowon's authority. It examines the breakdown of the existing legal order, the competing claims to legitimacy, and the subsequent attempts by the military government to establish a new legal framework through decrees. For legal practitioners, understanding this historical juncture offers critical insights into the fragility of constitutional governance in periods of political upheaval and the enduring legacy of military intervention on Nigeria's legal system.

Nigeria's post-independence constitutional order was first disrupted by the military coup of January 15, 1966, which saw the assassination of key political leaders and the Prime Minister, Sir Abubakar Tafawa Balewa. In the ensuing chaos, Major General Johnson Aguiyi-Ironsi, the General Officer Commanding the Nigerian Army, assumed control as Head of the National Military Government, suspending parts of the 1963 Constitution and establishing military rule. Ironsi's regime, however, was short-lived and controversial, particularly after the promulgation of Decree No. 34 of 1966, which sought to unify the country and was perceived by many Northerners as an attempt at Igbo domination.

This perceived imbalance and the grievances arising from the January coup led to a counter-coup on July 29, 1966, orchestrated primarily by Northern military officers. Major General Aguiyi-Ironsi and his host, Lieutenant Colonel Adekunle Fajuyi, the Military Governor of the Western Region, were tragically assassinated. In the power vacuum that followed, Lieutenant Colonel Yakubu Gowon, a Northern Christian, emerged as the new Head of State. However, this ascension bypassed Brigadier Babafemi Ogundipe, who was then the Chief of Staff, Supreme Headquarters, and demonstrably the most senior military officer alive after Ironsi's death. This breach of military protocol and hierarchy formed the crux of Ojukwu's refusal to recognise Gowon, setting the stage for a deeper constitutional crisis.

Ojukwu's refusal to acknowledge Gowon's leadership was predicated on the principle of military seniority and the perceived illegitimacy of Gowon's rise to power. At the time of Ironsi's assassination, Brigadier Babafemi Ogundipe was the most senior officer in the Nigerian Army. Ojukwu, as the Military Governor of the Eastern Region, argued that the established military chain of command dictated that Ogundipe should have assumed leadership. However, Ogundipe, despite his seniority, did not take power, reportedly due to a lack of troops, an inability to command the loyalty of Northern soldiers, and a pragmatic assessment that a Southern Christian leader might not be able to hold the country together. He subsequently accepted an appointment as Nigeria's High Commissioner to the United Kingdom under Gowon's regime.

Gowon's emergence as Head of State, therefore, was a *fait accompli* of a successful counter-coup rather than a succession based on established constitutional or military hierarchical norms. This revolutionary change in government created a legal conundrum regarding the validity of actions taken by the new regime. The military government, under Gowon, quickly moved to regularise its authority through legislative instruments. The Constitution (Suspension and Modification) Decree No. 1 of 1966, initially promulgated by Ironsi, was continued and adapted, effectively suspending key provisions of the 1963 Constitution and vesting legislative and executive powers in the Supreme Military Council.

The judiciary initially attempted to assert its traditional role in reviewing the legality of military decrees. In the landmark case of *E.O. Lakanmi & Anor v. Attorney-General (Western State) & Ors* (1971) 1 UILR 201, the Supreme Court courageously declared certain military decrees and edicts, which had retrospectively validated asset forfeitures, as *ultra vires*, null, and void. The Court reasoned that the Federal Military Government was merely an interim government that had stepped in to fill a vacuum and was bound by the unsuspended provisions of the 1963 Constitution.

However, the military government swiftly and decisively countered this judicial challenge by promulgating the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970. This decree retrospectively nullified the Supreme Court's judgment in *Lakanmi's case*, explicitly declaring that any court decision nullifying a military decree was itself null and void. It asserted the absolute supremacy of military decrees over any other law, including the unsuspended parts of the Constitution, thereby establishing the legal foundation for military rule as a revolutionary government, not merely an interim constitutional one.

Further attempts to resolve the political impasse, such as the Aburi Accord of January 1967, which sought to decentralise power and reorganise the military, ultimately failed. Ojukwu's interpretation of the Accord, which favoured greater regional autonomy, clashed with the Federal Government's subsequent decree, which maintained central control. This breakdown, exacerbated by the unresolved succession dispute and the Federal Government's assertion of supreme legislative authority, solidified the path towards secession and the outbreak of the Nigerian Civil War.

The refusal by Colonel Ojukwu to recognise Lieutenant Colonel Gowon as Head of State in 1966 was not merely a personal or political disagreement; it was a profound constitutional crisis rooted in competing interpretations of legitimate authority following a series of military coups. Ojukwu's insistence on military seniority, though seemingly a straightforward application of protocol, highlighted the absence of a clear legal framework for succession in a revolutionary context. Gowon's eventual consolidation of power, backed by military force and subsequently legitimised through decrees like the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, fundamentally reshaped Nigeria's constitutional jurisprudence, establishing the supremacy of military fiat over judicial review.

For legal practitioners, this period serves as a stark reminder of the challenges to the rule of law during periods of unconstitutional change. The *Lakanmi* case, despite its eventual nullification, remains a testament to judicial courage, while Decree No. 28 of 1970 stands as a powerful example of how military regimes sought to insulate their actions from legal challenge. The legacy of this era continues to influence discussions on federalism, constitutionalism, and the delicate balance of power in Nigeria, underscoring the critical importance of robust legal institutions and adherence to constitutional principles to prevent a recurrence of such foundational disputes.