Obasanjo identifies Abdulsalami, military leaders for guiding Nigeria through difficult transitions

Former President Olusegun Obasanjo's recent commendation of past military leaders, including General Abdulsalami Abubakar, for their role in guiding Nigeria through challenging transitions, prompts a critical examination of the legal and constitutional legacy of military rule. This article delves into the complex interplay between military decrees and constitutionalism during Nigeria's various transitions to civilian rule, particularly the pivotal 1999 handover. It explores the enduring debates surrounding the legitimacy of the 1999 Constitution, its military origins, and the judiciary's historical struggle to uphold the rule of law amidst periods of military supremacy. Understanding these historical legal developments is crucial for legal practitioners navigating Nigeria's contemporary constitutional landscape.

Former President Olusegun Obasanjo recently lauded past military leaders, notably General Abdulsalami Abubakar, for their pivotal roles in navigating Nigeria through difficult national transitions. This commendation, while acknowledging a historical reality, invites legal professionals to reflect on the profound and often contentious legal and constitutional implications of military-led transitions in Nigeria's history. These periods, marked by shifts from authoritarian rule to democratic governance, have indelibly shaped the nation's legal framework and institutional architecture. The transition culminating in the Fourth Republic in 1999, in particular, represents a critical juncture whose legal underpinnings continue to be debated and interpreted.

For practising attorneys and legal scholars, Obasanjo's remarks serve as a timely reminder of the unique origins of Nigeria's current democratic dispensation and the foundational legal instruments that govern it. The era of military rule introduced a distinct legal order, characterised by the supremacy of decrees and the suspension of constitutional provisions, which profoundly impacted human rights, judicial independence, and the very concept of popular sovereignty. This article will explore the complex legal and constitutional implications of these transitions, examining the role of military leadership in shaping the foundational legal instruments, the judiciary's historical responses, and the ongoing discourse on the legitimacy and impact of the Constitution of the Federal Republic of Nigeria, 1999.

Nigeria's post-independence history has been punctuated by prolonged periods of military rule, each bringing with it a distinct legal regime. Military governments typically suspended or modified existing constitutions, governing instead through decrees and edicts that held supreme legal authority. The return to civilian rule in 1979, and more significantly in 1999, represented conscious efforts to establish enduring democratic frameworks after years of military intervention. The transition to the Fourth Republic in 1999, spearheaded by General Abdulsalami Abubakar's regime, was particularly swift, occurring within an eleven-month timeframe.

During this period, the Provisional Ruling Council (PRC), the highest decision-making body under military rule, governed by decree. General Abubakar's administration undertook the task of preparing a new constitution, which ultimately became the Constitution of the Federal Republic of Nigeria, 1999. This document, largely drawing from the 1979 Constitution, was promulgated by military decree, specifically the Constitution of the Federal Republic of Nigeria (Promulgation) Act, 1999 (formerly Decree No. 24 of 1999), and came into force on May 29, 1999, marking the formal handover of power to a democratically elected government led by former President Olusegun Obasanjo.

The legal landscape under military rule was characterised by the assertion of legislative supremacy through decrees, often containing 'ouster clauses' designed to preclude judicial review. The judiciary's struggle against this legislative might is exemplified by the landmark case of *E.O. Lakanmi and Ors v. Attorney-General, Western State and Ors*. In this case, the Supreme Court initially challenged the validity of a military decree, asserting that the military government was a continuation of the civilian government and thus subject to the suspended constitution. However, this judicial assertion was swiftly overturned by the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, which unequivocally declared the absolute supremacy of military decrees over any other law, effectively abrogating the pre-existing legal order.

The promulgation of the 1999 Constitution by a military government, rather than through a constituent assembly or national referendum, has led to persistent debates regarding its legitimacy. Critics often highlight the paradox of the Preamble, which begins with "We the people of the Federal Republic of Nigeria," despite the document's military origins. This has fueled calls for a more "people-led" constitution-making process. However, General Abdulsalami Abubakar has recently countered this narrative, asserting that the 1999 Constitution was not written by the military but adopted approximately 95 percent of the 1979 Constitution, which was drafted by civilian experts. He also noted that no Nigerian constitution, including the 1979 document, was ever subjected to a referendum.

Despite the overarching supremacy of military decrees, the judiciary did, at times, demonstrate a commitment to justice within the confines of the prevailing legal order. While largely deferring to military decrees, courts occasionally insisted on strict compliance with the provisions of such decrees. Furthermore, in a significant post-transition ruling, the Supreme Court of Nigeria upheld the superiority of the African Charter on Human and Peoples' Rights over military-promulgated decrees, signalling a reassertion of fundamental human rights principles. The legacy of military rule also manifests in the continuity of certain military-era laws and structures, such as the Land Use Act and the National Youth Service Corps Act, which were retained in the 1999 Constitution, contributing to ongoing discussions about federalism and the centralisation of power.

The commendation of military leaders for their role in guiding Nigeria through difficult transitions underscores the complex and often contradictory nature of the nation's constitutional development. For legal practitioners, a deep understanding of this historical context is indispensable for interpreting the Constitution of the Federal Republic of Nigeria, 1999, and navigating the intricacies of Nigerian jurisprudence. The enduring debates surrounding the legitimacy of the 1999 Constitution, stemming from its military promulgation, continue to shape constitutional discourse and calls for reform.

As Nigeria continues its democratic journey, legal professionals must remain vigilant in advocating for constitutionalism, the rule of law, and participatory governance. The ongoing discussions about constitutional amendments and the pursuit of a truly "people-led" constitution highlight the imperative for continuous engagement with these foundational legal issues. Practitioners should closely monitor developments in constitutional reform efforts, as they hold the potential to address historical grievances and further entrench democratic principles, ensuring that the legal framework truly reflects the aspirations of the Nigerian people.