Home Constitutional Law II CONSTITUTIONAL STRUCTURE AND NATURE OF THE NIGERIAN MILITARY GOVERNMENT

CONSTITUTIONAL STRUCTURE AND NATURE OF THE NIGERIAN MILITARY GOVERNMENT

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INTRODUCTION

The object of this unit is to set out and consider the peculiar structure and nature of the Nigerian military government. It is however difficult or perhaps inaccurate to talk about ‘the Nigerian military government’ because Nigeria has now experienced five distinct military Administrations viz two in 1996, that is, the Ironsi regime which suffered a counter – coup in its seventh month, July 1966. This was the Gowon administration which lasted until 1975 when it was itself overthrown in another coup resulting in the Muhammad – Obasanjo regime which handed over the administration of the country to civil rule in 1979. on December 31, 1983, as a result of the excesses and irresponsibility of the civilian administration the Armed Forces re- entered the government of Nigeria under the leadership of Major General Muhammad Buhari with Brigadier (later Major – General) Tunde Idiagbon as chief of staff supreme headquarters) The Buhari regime was itself overthrown in a bloodless counter – coup on August 27, 1985. Major – General Ibrahim Babangida emerged as the new leader under the style and title of president, commander – in – chief of the Armed Forces.

Both of Ironsi and the Gowon regimes under a substantially similar constitution, the basis of which was the constitution (suspension and Modification) Decree No. 1 of 1966. The Muhammad Obasanjo regime operated under the constitution (basic provision decree No. 32 of 1975, the provisions of which are almost word for word to be found in the constitution (suspension and Modification) Decree No. 1 of 1984 of the Buhari regime. As the law, structure, nature and operations of government under Decree No.1 of 1966 are substantially different from the position under the last two Decrees, comparative analysis would be made of the two situations.

Decree No. 1 of 1966 was the first expression of a military constitution in the constitutional history of Nigeria. In contrast with the former civilian constitution it had characteristics which stood out in sharp contrast to its predecessor. The last two military constitutions: the constitution (Basic Provisions) Decree No. 32 of 1975 and the constitution (Modification and Suspension) Decree No. 1 of 1984 substantially the same in contents and style stand in marked contrast to Decree No. 1 of 1966. the three decrees have a common purpose as is, for example, stated in their explanatory notes that “the decree sets out the basic frame work for the government of the Federal Republic of Nigeria and its component states, as from 31st December, 1983, under a Federal Military Government and specified the principal organs thereof’. They also always provide for the suspension and modification of provisions of previous constitutions, particularly those aspects incompatible with the stance and operation of the new government. The 1985 Decree departs radically from all the previous ones; it will be discussed in the final unit.

The approach will be to highlight on a comparative basis the institutions of government established, and consider the nature and extent of legislative, executive and adjudicating powers in the Decree. We shall consider first the structure of government.

Structure of Government

Unlike the Decree No. 1 of 1966 which set up two major federal institutions in government (the supreme military council and the federal executive council) the last two Decrees added a third one designated the national council of states.

 Composition

The supreme military council consisted of the head of the federal military government as President; the Chief of Staff, Supreme Headquarters, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff, the Inspector General of the Nigeria Police, the general officers commanding the first, second, third and fourth divisions of the Nigerian Army respectively, 12 designated members who shall be senior officers of the Nigerian Armed Forces and the Nigerian Police Force of whom six shall be from the Nigerian Army three from the Nigeria Navy, two from the Nigerian Air Force; and such other members as the council may from time to time appoint. The Attorney- General of the Federation shall attend the meeting of the council in an advisory capacity.

The federal executive council consisted of the head of the federal military government as president; the chief of staff, supreme headquarters; the inspector General of Nigeria Police; the attorney General of federation; and such other members (to be know as commissioners) as the supreme military council may from time to time appoint.

The new body, the national council of states, consisted of the head of the federal military government as president; the chief of staff; supreme military headquarters; the chief of Army staff; the chief of Naval staff, the chief of Air staff; the inspector General of the Nigeria police; the military governors of the states; and such other members as the supreme military council may from time to time appoint. Again, the Attorney General of the federation attended in an advisory capacity.

There are striking differences in the arrangement of machinery of federal government under Decree No. 1 of 1966 and the last Decrees. First, an entirely new body, the national council of states has been created. Second, military governors have been excluded from the highest organ of government, the supreme military council. They belonged to the national council of states. Their removal from the

supreme body was a reaction to their virtual ungovernability and ‘irresponsibility’ under the Gowon regime. Since they sat and participated in major policy formulation in the former supreme military council General Gowon found it impossible to discipline them, not to think of re–posting or removing them as military Governors. Indeed on the appointments as Military Governors, the new men were expressly told that they were on purely military assignments and not as political administrators as their predecessors turned out to be. To have included the Military Governors in the Supreme Military Council would not only have made it an unnecessarily unwieldy body, it would also have led to the exclusion from that body of more senior military personnel. To further underscore the purely military nature of their assignments, the Military Governors were to channel problems of their states through the Chief of Staff, Supreme Headquarters, to the head of the federal military government. This contrasts with the almost too frequent visits of the military governors in the Gowon administration to Lagos to see the head of state in the process of which conflicting and embarrassing statements on major national issues were made at press conferences at the airports. Also, both the supreme military council and the national council of states were composed entirely of military personnel. The only civilian or two bodies were the federal attorney general who attended purely in an advisory capacity. This arrangement was also designed to stress the military nature and posture of this regime. This point was further underscored by the inclusion, for the first time, of the four General Officers commanding the four divisions of the Nigerian Army in the Supreme Military Council. Of note also is the exclusion of the chiefs of Army, Naval, and Air staff from the federal executive council and their placement in the National Council of States.

That the Buhari regime is less concerned with persons and personalities but more with offices is shown by provision that ‘A member of the supreme military council shall, unless the council otherwise directs, vacate his office as a member if he ceases to be the holder of any office by virtue of which he was appointed a member ‘. This again is a reaction to the practice in the Gowon regime when certain individuals were appointed to the supreme military council by name rather than by virtue of their offices.

While it is provided that each of the three councils established shall be presided over by the head of the federal military government, a novel arrangement was also made whereby the chief of staff, supreme headquarters, was to preside in his absence. This provision should have gone on to provide for the method of appointing some other person to preside at the council meetings in the event of both the head of state and the chief of staff, supreme headquarters, not being available. A provision to the effect that the councils shall appoint one of their  members to act might have sufficed. Perhaps, however, section 6(7)(b) of Decree No. 32 and 2.7 (6)(b) of Decree No. 1 of 1984 empowering each council to regulate its own procedure and, subject to its rules of procedure, to act notwithstanding any vacancy in its membership or the absence of any member, may be the answer.

Another departure from the former Decree was the express provision for meeting schedules6 for the three councils. The supreme military council under Major – General Buhari met at least once every three months; the National council of states met at least thrice every year and the federal executive council met normally once every week.

 Structure of Government in the States

In the Gowon administration, the military governor was virtually a law unto himself. This may sound cynical but the cynicism arose from the law itself. Decree No. 1 of 1966 literally equated the government with the military governor. There was the provision that ‘… any reference to the government of a region shall be construed as a reference to a military governor of that Region. In other words, the Decree made the military governor the sole lawmaker as well as executor of the laws. A later and obscure Decree set up state executive councils without stating their functions. They existed only to advise the military governor on any matter he might choose to refer to them.

Decrees No. 32 of 1975 and 1 of 1984 however changed this position. They expressly provide for an executive council for each state, which council shall comprise the military governor as chairman; one senior officer each from the Nigerian Army, the navy and the Air Force in the State; the most senior officer of the Nigeria Police in the state; and such other members(to be known as commissioners) appointed. Now, therefore, a military governor has no choice but to set up an executive council with the specified composition. Consequently, while the new Decrees still vest in the military governors the functions performed by civilian regional governors and premiers, functions performed by civilian executive councils, Houses of assembly or Houses of chiefs vest in the executive council of the States.

The real meaning of all this is that State Military Governors would not lightly disregard the advice of their executive councils on matter of policies affecting the state. These arrangements are most in accord with the principle and practice of the doctrine of separation of powers. Each state executive council may regulate its own procedure and, subject to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of any member. A strict interpretation of this provision may lead to an absurd situation. One may ask what  happens if the vacancy or absence was created by the unavailability of the military governor himself.

Unless, of course, a new military governor is quickly appointed, there is no provision in the Decrees for a deputy or acting chairman. Unless of course, administration grinds to a halt, where no replacement is made for the military governor, the alternative might be that the most senior member of the Armed Forces in the executive council might act as chairman. If section 7(2) is not flexible enough to accommodate this interpretation; the answer would be the constitutional doctrine of necessity.

 CONCLUSION

In this discourse, you learnt about the Nigerian Military and the structure of government of the Nigerian Military from 1966 till 1999 when they handed over to a democratically elected government.

 SUMMARY

In this unit, you have learnt about the nature of the Nigeria Military and their structural composition. You should be able to distinguish a military government and civilian government in Nigeria.

TUTOR-MARKED ASSIGNMENT

The structure of government under the military regime gives room to abuse of power. Comment.

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