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Nigeria during the Abacha Years (1993-1998)

 | 
‘Kunle Amuwo
, 
Daniel C. Bach
, 
Yann Lebeau

The Management of Transition to Civil Rule by the Military in Nigeria (1966-1996)

Chidi A. Odinkalu

Texte intégral

  • 1 The 1989 Constitution drafted under the auspices of the Babangida regime was abrogated before it w (...)
  • 2 With the notable exception of the regime of Major-General Muhammadu Buhari, every military regime (...)
  • 3 It is widely believed that the claim (in early 1995) by the present regime to have foiled a coup a (...)

1Nigeria has been under military rule since independence (1 October 1960), except for the periods between 1 October 1960 and 15 January 1966; and 1 October 1979 and 31 December 1983. In its 36 years as an independent state, Nigeria has had seven military rulers, six military inspired changes of government (five of which have been successful military coups), four constitutions (including one that was never used!),1 four constitution drafting processes, at least four programmes of transition from military to civilian government,2 at least three unsuccessful coup attempts,3 three national censuses, two civilian regimes, two constituent assemblies, one civil war and one successful transition programme! As these facts suggest, successive military regimes have launched their own programmes of transition with different degrees of sincerity. Successive programmes of transition to civil rule in Nigeria since 1975, have been substantially repetitive, comprising the following elements:

  1. the creation of new administrative structures (usually states and local [municipal] government units)
  2. a constitution preparation process
  3. the lifting of an existing ban on political activities usually imposed (or maintained) by each successive military regime
  4. local elections on a zero-party basis
  5. formation of political parties followed by elections on a party basis

2This paper examines how successive military regimes in Nigeria have managed transition programmes. It will describe the historical and legal framework of military-managed transition, the performance of the military and the role of other government and civil society institutions (in particular, the legal system and the judiciary), in the politics and process of transition in Nigeria.

3The paper is divided into six parts. The first part traces the entry of the military into government in Nigeria in January 1966 until 1975, while the second examines the structure of the transition programme that led to the successful election of a civilian president in October 1979. In the third part, the aborted General Ibrahim Babangida transition programme to civilian government is described. Part four examines the role that civil society structures were allowed to play in these programmes of transition and, in part five, the paper considers the role played by the judiciary in the transition processes. The final and concluding part gives a prognosis of the transition programme of the present regime of General Sani Abacha.

A Brief History of Military Involvement in the Politics of Transition

  • 4 The elections were contested between the Nigerian National Alliance (NNA) made up primarily of the (...)

4The first military government in Nigeria was installed in January 1966 after a partially successful coup on 15 January 1966. This coup was led by a group of middle-rank officers of the Nigerian Armed Forces, and effectively ended the ‘broad-based’ national government led by the Northern People’s Congress (NPC), which was installed after the controversial federal elections held from December 1964 to March 1965.4 The coup was most successful in the Northern Region where its leaders succeeded in taking temporary control of government. They also assassinated the Prime Minister, Sir Abubakar Tafawa Balewa, the regional premiers of the Northern and Western Regions, Alhaji Ahmadu Bello and Chief S.L. Akintola, respectively, and some other leading politicians including the federal finance minister. In the three other regions – the Eastern, Mid-Western and Western Regions – the coup was only partially successful. The General Officer Commanding the Nigerian Army (GOC), Major-General Aguiyi-Ironsi, who was to have been arrested by the coup leaders, managed to evade arrest and successfully mobilized loyal forces to resist the coup in other parts of the country.

5These events were taking place at a time when the titular president of the country, Dr. Nnamdi Azikiwe, was reportedly in Britain convalescing. In the ensuing confusion, on 16 January 1966, the then Speaker of the Federal Parliament and Acting President, Dr. Nwafor Orizu, announced that he:

  • 5 Government Notice no. 147 of 26 January 1966.

... had tonight been advised by the council of ministers that they had come to the unanimous decision to voluntarily hand over the administration of the country to the Aimed Forces of the Republic with immediate effect.5 He expressed the hope that the administration ‘will ensure the peace and stability of the Federal Republic of Nigeria and that all citizens will give them their full cooperation’.

6He called on the GOC to address the nation. The GOC then informed the country that:

  • 6 Government Notice no. 148 of 26 January 1966.

The government of the federation having ceased to function, the Nigerian Armed Forces have been invited to form an interim military government for the purposes of maintaining law and order and of maintaining essential services. This invitation has been accepted and I, General J.T.U. Aguiyi-Ironsi, the General Officer Commanding the Nigerian Army, have been formally invested with authority as Head of the Federal Military Government, and Supreme Commander of the Nigerian Armed Forces.6

  • 7 See, Lakanmi v. Attorney-General (West) SC. 58/69 of 24 April 1970, [ 1974 ] East Central State La (...)
  • 8 Okay Achike, Groundwork of Military Law and Military Rule in Nigeria. (Enugu: Fourth Dimension Pub (...)

7The implications of these declarations and the events that preceded them between 15 and 16 January 1966 subsequently became the subject matter of litigation before the Nigerian Supreme Court7 and have remained controversial ever since.8

  • 9 Subsequent military regimes in Nigeria also professed to be corrective and temporary. Addressing t (...)
  • 10 Supra, fn. 10.

8Much has been made of the inaugural declaration of the GOC that the Armed Forces were invited to form ‘an interim military government’.9 In the case of Lakanmi v. The Attorney General (West),10 the Supreme Court of Nigeria ruled that the events of 15-16 January 1966 resulted in the hand-over of government to the military, which was not outside the terms of the 1963 Constitution of the Federal Republic of Nigeria. The Court reasoned that although the manner of the cession of power to the military was unusual, it could be excused on the grounds of necessity and, being constitutional, bound the succeeding military regime to respect the constitution. Holding that the old constitutional order was still preserved in spite of the cession, the court continued:

  • 11 ibid. The regime promptly nullified the effect of this decision through the Federal Military Gover (...)

We venture to put the attitude of the Acting President and the Council of Ministers to the head of the army thus –‘your men have started a rebellion, which we fear may spread; you have the means to deal with them. We leave it to you to deal with them and after this, return the administrative power of the government to us.11

  • 12 B.J. Dudley, Instability and Political Order (Ibadan:University of Ibadan Press, 1974).
  • 13 A.E. Gboyega, The making of the Nigerian Constitution. In: Nigerian Government and Politics under (...)

9The Aguiyi-Ironsi regime set up some constitutional bodies which gave the impression that it contemplated a swift return to an elected, civilian government.12 However, the regime was shortlived. In a counter-coup on 29 July 1966, the administration was overthrown and its head, General Johnson Aguiyi-Ironsi was assassinated. The new regime of Lieutenant-Colonel (later General) Yakubu Gowon initiated a process of constitutional revision. Shortly after assuming power, it constituted an ‘ad hoc conference on constitutional proposals for Nigeria’, ‘a gathering of old hands adept at political bargaining’13 which began meeting in September 1966.

10On 24 October 1966, following renewed inter-ethnic violence, which resulted in the killing of large numbers of Igbo people (of south-eastern Nigeria) in some parts of the Northern Region, the delegation of the Eastern Region to the Ad Hoc Conference walked out, effectively ending the work of the conference.

  • 14 The idea of state creation was one of two proposals first tabled during the 1957 Constitutional Co (...)

11The crisis in the country continued to escalate. Ostensibly to reduce the concentration of power in the North and dampen the rumblings of secession in the Eastern Region in particular, the Gowon regime dissolved the regional structures and created 12 states in their place.14 Shortly afterwards, the country became embroiled in a civil war which ended formally on 15 January 1970.

12Many politicians in Nigeria expected that the Gowon regime would announce a programme to return the country to an elected civilian government shortly after the end of the war. Addressing the country on the 1O th anniversary of Nigeria’s independence on 1 October 1970, General Gowon announced a six-year transition plan to return the country to an elected government in 1976; the intervening period was dedicated to a programme of reconstruction, rehabilitation, reconciliation and reintegration (better known as ‘the four Rs’). However, in another nationwide broadcast on 1 October 1974, General Gowon announced that the 1976 date was ‘unrealistic,’ however he failed to announce a new date.

  • 15 Oyeleye Oyediran, The road to the 1979 elections. In: The Nigerian 1979 Elections, Oyeleye Oyedira (...)
  • 16 For a full text of this speech, see Sidi H. Ali, Murtala Mohammed: A betrayed revolutionary, 1983, (...)

13General Gowon was overthrown in a palace coup on 19 July 1975, and Brigadier (later General) Murtala Ramat Mohammed became the new military leader of Nigeria. Two days after assuming power, the new regime decided, inter alia, to ‘review the political programme’.15 In October 1975, General Murtala Mohammed announced a five-stage, four-year transition programme to ‘hand over power to a democratically elected government of the people by October 1979’, promising that ‘the present military leadership does not intend to stay in office a day longer than necessary, certainly not beyond this date’.16

Murtala/Obasanjo Transition Programme, 1976-1979

14The transition programme announced by the regime of General Murtala Muhammed was preceded by a major debate in the Nigerian media. The debate began with the announcement that the regime intended to implement a speedy transition to civil rule. Two major subjects of debate were, (a) the length of time that such a programme should take, and (b) the main activities to be included in it.

  • 17 Chief Awolowo, for instance, thought that a two year programme terminating in March 1977 would be (...)

15While there was a general consensus that the programme should include a constitution-making process, a lifting of the ban on politics and elections leading to the formal disengagement of the military from politics, opinions differed as to how much time would be required to accomplish these.17 This debate was closed by the independence day broadcast of General Mohammed in October 1975. Because of its influence on the political programmes of subsequent military regimes in Nigeria, it is important to quote the relevant portion of that speech in which the political programme was announced:

  • 18 The Supreme Military Council (SMC) was the highest law and decision making organ under the regime. (...)

The Supreme Military Council has approved a five-stage programme designed to ensure a smooth transition to civil rule by those elected by the people of this country. During the first stage, the States issue will be settled and any new states created will be fully established. The Committee on States will submit its report in December 1975 and the preliminary steps for the establishment of new states will be completed by April 1976. Meanwhile, a drafting committee on the Constitution will be appointed this month and will have up to September 1976 to complete its work on a first initial [sic] draft constitution. In stage II, the newly created states will be given time to settle down before the entire Federation embarks upon a systematic and deliberate reorganization of the local government set up. This reorganization will lead to elections at local government level on individual merit without party politics. Arising from this, there will then be a Constituent Assembly, partly elected and partly nominated. The purpose of this Assembly is to consider and accept the draft constitution... . This second stage will last two years ... it will be completed by October 1978. Stage III will be a preparatory stage for elections. The ban on political activities will be lifted in October 1978. Political parties can then be formed in preparation for the final stages in which elections will be held into legislatures at State and Federal levels, as prescribed by the new Constitution. The two elections make up stages IV and V. These two stages are expected to be completed within one year and we intend to hand over power to a democratically elected government of the people by October 1979.18

16True to its word, the regime constituted an (all-male), 50-member, Constitution Drafting Committee (CDC) three days later. The CDC was inaugurated on 18 October 1975 by General Mohammed and given its terms of reference which included:

  1. the creation of political institutions which ensure maximum participation and consensus and orderly succession to political power
  2. the elimination of cut-throat political competition based on a system of winner-takes-all
  3. the development of consensus politics and government, based on a community of all interests rather than the interests of sections of the country
  4. the elimination of over-centralization of power in a few hands and the decentralization of power as a means of diffusing tension
  5. a careful definition of the powers and duties of the leading functionaries of government;
  6. the creation of a system of government in which the president and vice-president are elected with clearly defined powers, and are accountable to the people; and
  7. the evolution of a free and fair electoral system which ensures adequate representation of the cross-section of the nation at the centre.19

17Following the submission of the report of the CDC in September 1976, an elected constituent assembly (CA), headed by two senior judges of the Nigerian Supreme Court, was constituted to debate the draft constitution. Neither body, however, had the power to adopt the constitution, a prerogative that the regime reserved for its highest decision-making organ, the Supreme Military Council.

18The CA met between October 1977 and June 1978 and ratified the recommendations of the CRC for a federal, presidential system of government modelled on the American system. This was to include a bicameral legislature at the federal level, a unicameral legislature at the state level, and a four-year tenure for elected officials at both the federal and state levels. It also backed the recommendation of a multi-party system, separation of powers between the arms of government, a division of powers based on a system of enumerated powers for the federal government, mostly residual powers for the states and an enforceable ‘Bill of Rights’.

  • 20 See Section 6(6)(6) of the Constitution of the Federal Republic of Nigeria 1979.

19The draft constitution which the CA submitted to the Federal Military Government suffered 17 amendments by the time it was finally promulgated by the regime in 1979. Perhaps the most significant amendment was a provision20 which rendered the acts and legislation of all the military regimes in Nigeria since 1966 immune to legal challenge under the new dispensation.

  • 21 See States (Creation and Transitional Provisions) Decree no. 12 of 1976.
  • 22 For a description and analysis of the nature and consequences of the reform of local governments u (...)

20Meanwhile, in February 1976, the regime created six new states, bringing the number of states in Nigeria to 19.21 Shortly after this, General Mohammed was assassinated in a failed coup attempt and was succeeded by his deputy, General Olusegun Obasanjo, as Head of State. Following a reorganization of the local government system,22 the regime conducted the first set of elections under its transition programme – the local government elections – on a zero-party basis in December 1976. Responsibility for organizing these elections was given to the respective state administrations; ten of these conducted the elections by direct method while the other nine used the indirect method.

Legislative Regulation of the Transition and Electoral Process, 1976-1979

21Although the mandate of the constitution-making bodies instituted by the regime included the design of an electoral system, it was clear from the transition time-table that some elections would precede the final adoption of the recommended electoral system. Addressing this issue in its report, the CDC recommended, inter alia, that:

... as a transitional measure, the Supreme Military Council should appoint for the purpose of the first election before return to civil rule, an Electoral Commission. That Commission is to be disbanded after the first election.

  • 23 Federal Republic of Nigeria, Reports of the Constitution Drafting Committee containing the Draft C (...)
  • 24 See: Towards Civil Rule: Speeches of His Excellency, Lt. General Olusegun Obasanjo in preparation (...)
  • 25 Decree no. 41 of 1977; hereafter called FEDECO Decree.

22In communicating this decision to the federal military government, the CDC suggested that the decision was ‘not to be embodied in the draft constitution.’23 On 1 October 1976, two weeks after receiving the report of the CDC, the regime announced the appointment of a 24-member Federal Electoral Commission (FEDECO) headed by Chief Michael Ani, a senior federal civil servant. The FEDECO was inaugurated in November 1976 by the new head of state, General Obasanjo, who assured the commission and the country that the regime would respect its independence including the security of tenure of its members.24 Six months after FEDECO was established, the regime finally legitimized it through the Federal Electoral Commission Decree25 of May 1977, which was given retroactive effect to 1 October 1976. This decree empowered the commission to:

  1. organize and supervise all matters pertaining to elections into all the elective offices provided for in the Constitution, and elections into any legislative body provided for in that Constitution other than local government bodies
  2. register political parties and determine their eligibility to sponsor candidates for any of the elections referred to in paragraph (a) above
  3. arrange for the annual examination and auditing of the funds and accounts of political parties
  4. carry out such other functions as may be conferred on it by law26
  5. delineate the country into constituencies for the purpose of organizing and contesting elections and registering persons eligible to vote in such elections.27
  • 28 Section 4.

23Furthermore, the decree assured FED ECO of independence in the discharge of these functions and powers, stating in particular that ‘it shall not be subject to the direction or control of any person or authority’.28

  • 29 Decree no. 73 of 1977.
  • 30 Decree No. 32 of 1978.

24In December 1977, the regime promulgated the Electoral Decree,29 after the establishment of FEDECO, but before the CA had completed its deliberations on the report of the CDC. The decree has 6 chapters and 151 sections, and contained the powers, procedures and dispute resolution mechanisms for the conduct of all elections. It dealt with matters such as registration of voters, procedure of elections, penal provisions relating to electoral offences, the formation and registration of political parties and dispute resolution mechanisms relating to (legal) proceedings on the validity of elections. The decree was subsequently amended by the Electoral (Amendment) Decree30 partly to reflect the outcome of the work of the CA.

25Together, the FEDECO and the electoral decrees were the legislative bases for the conduct of the Murtala/Obasanjo transition programme. It is fair to say that, with a few exceptions, FEDECO enjoyed reasonable administrative independence under both statutes. One of such exceptions was contained in Section 16(1) of the electoral decree by which the regime reserved for itself the prerogative to decide on the dates for all the elections into elective state and federal positions.

  • 31 Section 82, Electoral Decree.
  • 32 Section 94. This offence primarily involved the use of a false name in transactions related to the (...)
  • 33 Section 95. This offence was committed by ‘corruptly... giv(ing) ... or providing any food, drink, (...)
  • 34 Section 96.
  • 35 Section 97.
  • 36 Sections 105-106.

26The electoral decree prohibited political parties from having as members persons who were below 18 years ‘either directly or by the establishment of youth wings.’31 The decree also created four special electoral offences of ‘impersonating’32 ‘treating’33 ‘undue influence’34 and ‘bribery’.35 The decree prohibited political campaigning and broadcasting during the 48 hours immediately preceding elections.36

  • 37 Section 73, Electoral Decree.
  • 38 Section 74(2), Electoral Decree.

27Sections 72-74 of the decree spelt out eligibility thresholds for the elections. Candidates would be eligible to contest elections if they were 21 years old in case of elections into the state legislatures or the Federal House of Representatives and 35 years for all other elective positions at the state or federal level. Certified lunatics, undischarged bankrupts, non-Nigerians or persons with more than one nationality, condemned persons or persons who have been imprisoned for more than six months for crimes involving fraud or dishonesty, public servants in the employ of any one of the arms or divisions of the government, members of the armed forces and traditional (paramount) rulers, were considered ineligible.37 In addition, ‘any person found guilty of corruption, unjust enrichment or abuse of office by any tribunal or inquiry (including any military tribunal or inquiry) instituted by the Federal Military Government or by the government of a state at any time not earlier than 15th January 1966’,38 was also barred from contesting elections during the transition. According to the Electoral Decree:

  • 39 Section 74(3).

The question whether a person was found guilty of corruption, unjust enrichment or abuse of office shall be determined by the Electoral Commission by reference to the relevant report of the tribunal or inquiry in question and the decision of the Federal Military Government or the Government of a State as the case may be thereon, and the decision of the Electoral Commission on any such question shall be final and shall not be inquired into in any court of law.39

  • 40 See: L. Adele Jinadu. The Federal Electoral Commission. In: The Nigerian 1979 Elections, Oyeleye O (...)

28In spite of this provision, decisions of the commission disqualifying candidates from contesting some of the elections during the transition period were often contested in courts where verdicts unfavourable to the commission were sometimes returned.40

  • 41 For text of the broadcast by Chief M. Ani, FEDECO Chairman, see FEDECO recognizes 5 parties. New N (...)
  • 42 These parties were the Great Nigeria Peoples Party (GNPP), National Party of Nigeria (NPN), the Ni (...)

29On 21 September 1978, the regime lifted the ban on political activities, and one week later, on 28 September, FEDECO released the guidelines for the registration of political parties. Fifty-two political associations were formed, but only 35 collected registration forms, while 19 returned their completed forms to FEDECO. On 22 December 1978, FEDECO announced41 that it had recognized and registered five political parties.42

  • 43 Oyeleye Oyediran, Political parties: Formation and candidate selection. In: The Nigerian 1979 Elec (...)
  • 44 The nature and background to this controversy, which was eventually decided by the Nigerian Suprem (...)

30Each of the registered parties was a reincarnation of the political affiliations from the previous civilian government which was overthrown in 1966 and drew its leadership from the leading political figures of that era.43 The Obasanjo regime faithfully completed its transition programme which culminated in the inauguration of an elected civilian, President Shehu Shagari, albeit in controversial circumstances44 on 1 October 1979, when the new constitution also came into force.

The Beginning of Another Transition Programme (1985)

  • 45 Muhammadu Buhari, Moment of Truth: Collected speeches. (Lagos: Federal Government Printer, 1984): (...)

31The civilian government which was inaugurated in 1979 was sacked by the military on 31 December 1983 following popular disaffection generated by the national elections of September 1983. In his inaugural address to the country, General Muhammadu Buhari, the new military ruler, justified the intervention of the military as necessary because, ‘the last general elections was anything but free and fair.’ Citing evidence of widespread political thuggery and discontent, he declared that ‘the intervention of the armed forces was to arrest the imminent catastrophe which would have been the inevitable result of the course being charted by the politicians’.45

  • 46 Questioned on two separate occasions in 1984 about whether (and how soon) the regime intended to r (...)
  • 47 The commission was headed by Justice B.O. Babalakin.
  • 48 Views of the Federal Military Government on the Report of the Judicial Commission of Inquiry into (...)

32The Buhari administration was overthrown by another general on 27 August 1985, even before it had the opportunity to announce a programme of transition to civil rule.46 It is note-worthy, however, that three weeks before it was overthrown, the Buhari regime announced a six-member judicial inquiry into the defunct FEDECO headed by a Justice of the Nigerian Supreme Court.47 The commission was given a thirteen-point terms of reference which required it to, among other things ‘determine the causes of the failings, abuses and shortcomings which characterized the electoral processes... and to identify the persons responsible for them.’48

  • 49 See, Tunji Olagunju, Adele Jinadu and Sam Oyovbaire, Transition to Democracy in Nigeria. (Ibadan: (...)
  • 50 General Babangida was the first and, so far, the only military ruler in the history of Nigeria to (...)

33In an early morning broadcast announcing the sacking of the Buhari regime on 27 August 1985, Brigadier Joshua Dogonyaro alleged that ‘the government had started to drift’ and that ‘the initial objectives and programmes of action which were meant to be implemented since the ascension to power of the Buhari administration... have been betrayed and discarded.’49 Later, on the same day, Major-General Ibrahim Babangida, until then the Chief of Army Staff under the Buhari regime, announced himself as the first military ‘President’ of Nigeria.50

34In his independence day anniversary broadcast to the country on 1 October 1985, General Babangida indicated that he would release a political programme in 1986. In the first substantial indication of the political programme of the regime in December 1985, General Babangida promised that:

  • 51 Interview with Time magazine to mark 100 days in office, see Tunji Olagunju, et al., Transition to (...)

... there is no doubt that this country will go back to civilian rule. What we are trying to do is to make sure, first of all, that we create an atmosphere which will make such a transition quite easy. We will also create an atmosphere that makes these programmes attainable within an environment that is quite stable and geared up. In the past, we did not address our minds to this ...51

35The regime inaugurated a committee of eight federal permanent secretaries (known as the Committee of Eight) on 15 November 1985 to ‘study the issue of providing a political programme for the country and make appropriate recommendations’. In particular, the terms of reference of this Committee required it to:

  1. identify the factors that have militated against the development of a stable political culture
  2. recommend guidelines for a future system of government
  3. draw up a programme for return to civilian rule or any system of government agreed by the people
  4. make recommendations on modalities for implementing the programme
  • 52 Better known as and hereafter called ‘Politburo’ or ‘the bureau’. Dr. Ola Balogun resigned from th (...)

36Shortly afterwards, on 13 January 1986, before the Committee of Eight had concluded its work, the regime inaugurated a 17-member Political Bureau52 with five terms of reference to:

  1. review Nigeria’s political history and identify the basic problems which have led to our failure in the past
  2. identify a basic philosophy of government which will determine goals and serve as a guide to the activities of government
  3. collect relevant information and data for the government as well as identify other political problems that may arise from the debate
  4. gather, collate and evaluate the contributions of Nigerians to the search for a viable political future and provide guidelines for the attainment of consensus objectives
  5. deliberate on other political problems that may be referred to it from time to time.53
  • 54 For a fuller discussion of the report of this committee, see Tunji Olagunju et al., Transition to (...)

37The Committee of Eight submitted its report in March 1986, and identified several priority issues for the regime to address. These included economic stabilization and growth, restructuring the economy for growth, the establishment of new states, religious issues, penal reform and the judicial process, education, the national census, police and national security, the public service and language. The committee rejected the presidential system of government, suggesting instead ‘a modified parliamentary system of government based on the principle of power sharing’ between the army and elected civilians in which ‘sensitive’ portfolios such as defence, internal affairs and information, would be reserved for the military.54 The work of this committee has never been published.

  • 55 Report of the Political Bureau. (Lagos: Federal Government Printer, 1987).

38The Politburo identified 30 priority areas on which it took submissions. Although framed differently, these issues included all those identified by the Committee of Eight. In addition, there were items like human rights, women in politics, political parties, rural and community development, revenue allocation, ethnicity, federalism, youths and students in politics and national minorities. The bureau submitted its report on 27 March 1987.55 In its report, the bureau recommended the implementation of ‘a broadly spaced transition in which democratic governance can proceed with political learning, institutional adjustment and a reorientation of political culture, at sequential levels of politics and government and ending at the federal level.’ While the majority of members of the bureau recommended a transition programme that would terminate with the hand-over of power to an elected civilian regime in September/October 1990, a minority recommended a five-year programme to end in 1992.

  • 56 See Newswatch (Proscription from Circulation Decree) 1987. The magazine was proscribed for its iss (...)
  • 57 Decree no. 19 of 1987.
  • 58 ibid., Schedule 6.

39Though the contents of the report were not made public until much later, a leading Nigerian news magazine managed to obtain and publish a copy of the report shortly after it was submitted. The magazine was promptly proscribed for six months.56 There was, therefore, no public debate on the report. After receiving it, the regime constituted a nine-member committee headed by Major-General Paul Omu. The committee included three civilians and six members of the armed forces and was set up to study the report and prepare government’s response. The Omu Committee reported back to the regime in favour of a five-year programme of transition to end in 1992. Subsequently, on 28 July 1987, the regime promulgated the Transition to Civil Rule (Political Programme) Decree57 announcing a five-year, multiple-stage programme to terminate in the fourth quarter of 1992 with the inauguration of an elected civilian president and the final disengagement of the armed forces.58

Legislative Regulation of the Transition and Electoral Processes 1985 -1993

  • 59 Itse Sagay, Disappearing act: Nigeria’s bumpy road to democracy. Liberty (vol. 4, no. 1, April 199 (...)

40The implementation of the transition programme of General Babangida relied heavily on the force of military decrees. In contrast to the transition programme of 1976-1979 which was regulated by two basic laws, General Babangida promulgated 57 decrees containing a total of 1,174 sections to govern the transition programme between 1986-1992.59 As a result, the process of implementing these laws (and their amendments) was often confusing. The survey below only covers some of the significant transition decrees.

41General Babangida’s political programme was promulgated in Decree no. 19 of 1987. This decree originally outlined a programme of transition, scheduled to begin in the third quarter of 1987, with the establishment of a Directorate of Social Mobilisation, a National Electoral Commission (NEC) and a Constitution Drafting Committee (later established as the Constitution Review Committee, CRC) in the third quarter of 1987. In addition, the programme listed in six schedules, an itemized timetable of 19 other activities and measures to be implemented during the transition period. These included local government elections on a zero-party basis in the last quarter of 1987, the termination of the structural adjustment programme (SAP) and the consolidation of its gains in 1988, the lifting of the ban on politics and the registration of two political parties in 1989, the inauguration of elected state governments in 1990, the conduction of a national census in 1991 and the inauguration of a new president in 1992.

  • 60 Section 9(1). The Transition to Civil Rule Tribunal, as it came to be known, was constituted with (...)
  • 61 Section 14 of the decree.

42The decree also established a five-member tribunal to try persons who by their actions or omissions undermined the programme.60 There was a right of appeal from the tribunal to a Special Appeal Tribunal61 whose decision was, in turn, subject to ratification by the Armed Forces Ruling Council (AFRC). By virtue of Section 16(1) of the decree:

... the validity of any decision, sentence, judgement, confirmation, direction, notice or order given or made, as the case may be, or any other thing whatsoever done under this decree shall not be inquired into in any court of law.

  • 62 [1991] Nigerian Weekly Law Reports (Part 192) 458 at p. 472.
  • 63 See Transition to Civil Rule (Political Programme) (Amendment) Decree nos 14, 19, 26 and 27 of 198 (...)

43This clause was described by the Court of Appeal in the case of the National Electoral Commission v. Nzeribe as ‘the most far reaching to be found in any decree since the inception of military rule in this country.’62 This decree was subsequently amended at least seven times63 and the terminal date of the transition changed four times, eventually to 27 August 1993.

  • 64 See National Electoral Commission Decree no. 23 of 1987.
  • 65 Section 2(2). This provision implements the views of tne regime on the Report of the Babalakin Com (...)
  • 66 Section 3(1).

44By Decree no. 23 of 30 September 1987, the regime set up a 9-member National Electoral Commission (NEC) to replace the defunct FEDECO,64 to be headed by a chairman who ‘shall not be less than fifty years old’.65 The decree originally empowered NEC to, inter alia, ‘register two political parties and determine their eligibility to sponsor candidates for any of the elections’ to be organized during the transition.66

45In another notable departure from the standards set by the Murtala Mohammed/Obasanjo regime, the decree failed to assure the independence of the NEC, providing instead for the military government to:

  • 67 Section 5(1).

... give the commission such directives as appear to it to be just and proper for the effective discharge of the functions of the commission ... 67

  • 68 Decree no. 8 of February 1989.
  • 69 This particular amendment was effected following the replacement of the first Chairman of NEC, Pro (...)

46The NEC decree suffered two significant amendments: the National Electoral Commission (Amendment) Decree,68 deprived the NEC of the power to register political parties and transferred this power to the Armed Forces Ruling Council. The decree also reduced the minimum age of the chairman of NEC to 45 years.69

  • 70 Decree No. 37 of 1987.
  • 71 Decree No. 15 of 17 May 1989. Also later amended by the Local Government (Basic Constitutional and (...)
  • 72 In Adegbenro v. Akintola [1963] AC 614, the Judicial Committee of the Privy Council held in an app (...)
  • 73 Section 34. This power was exercised in at least three verifiable cases. In one instance, a state (...)
  • 74 By Decree nos. 14, 20, 23 and 63 of 1991. For a full discussion of those elections, see, Civil Lib (...)

47In December 1987, the regime successfully organized the local government elections on a zero-party basis. These elections were organized under the Local Government Elections Decree70 which was later repealed by the Local Government Elections (Basic Constitutional and Transitional) Provisions Decree71 which dissolved pre-existing local governments and provided for the organization of fresh local elections, this time on a party basis. This decree empowered the president to remove any elected local government official or dissolve any local government council ‘if he is satisfied72 that the affairs of the local government are not being managed in the best interest of the community or in a way to strengthen the unity of the people of Nigeria or for any other good cause.’73 It was subsequently amended four times after the local elections on party basis took place on 8 December 1990.74

  • 75 Decree no. 25 of 1987.
  • 76 See, for instance, the Participation in Politics and Elections (Prohibition) (Amendment) Decree no (...)
  • 77 Participation in Politics and Elections (Miscellaneous Provisions) Decree no. 48 of 1991.
  • 78 See, Chukwuemeka Gahia, Human Rights in Retreat: A report on the human rights violations of the mi (...)

48In pursuit of its stated objective of making a clean break with the political past, the regime prohibited certain categories of former political office holders from contesting for elective office during the transition programme through the Participation in Politics and Elections (Prohibition) Decree of 198775 which was subsequently amended at least four times76. Among those excluded from the politics of the transition period by the decree were persons who held political offices at the federal or state levels in the civilian governments between 1960 and 1966, and 1979 and 1983, as well as former or serving state military governors or administrators, service chiefs in the armed forces and the police, including former military heads of state and the serving president. Also banned were persons who either collectively or individually, have been liable or indicted and found guilty of acts of unjust enrichment, corruption, fraud, embezzlement of public funds, election malpractices or contributed in one way or the other to the economic adversity of the nation and such persons who exercised corrupt influence on public office holders’. The decree further banned persons in both the private and the public sectors who were dismissed from office or employment between 1 October 1960 and the end of the transition period. It equally applied to77 persons ‘whose political activities during the transition period are necessary to be curtailed for the purpose of ensuring a clean break with the past’.78 Justifying these measures in October 1988, General Babangida claimed that:

  • 79 Reflections on the National Agenda, speech at the 10th graduating ceremony of the National Institu (...)

...we have not chosen and have not sought to choose those who will succeed us. We have only decided on those who will not. We also have no vested interest in who succeeds our successors ... We are also resolved that we will not be succeeded by extremists ... We do not believe that anything but the good of this country will come out of the decision to exclude them.79

  • 80 Transition to Civil Rule (Qualification to Participate in Politics and Elections) Decree no. 52 of (...)
  • 81 See, The Constituent Assembly Decree no. 14 of 20 April 1988 and the Constituent Assembly (Dissolu (...)

49The minimum age for participation in transition politics was put at 18.80 The regime also constituted a Constitution Review Committee in 1987, and in April 1988, set up a Constituent Assembly to deliberate upon the work of the CRC. The CA completed its work in May 1989.81 Like similar bodies which were set up under the Obasanjo regime, the final decision on the contents of the constitution lay with the Armed Forces Ruling Council.

  • 82 13 political associations initially applied for registration but NEC recommended only six of them (...)
  • 83 See Transition to Civil Rule (Political Parties Registration and Activities) Decree no. 27 of 1989 (...)

50In December 1989, after it had refused to recognize any of the six82 political associations recommended to it for registration by NEC, the regime promulgated decrees83 to set up and regulate the operations of the two political parties, the National Republican Convention (NRC) and the Social Democratic Party (SDP), the latter being ‘a little to the left’ and the former ‘a little to the right’ of the ideological spectrum.

51The original political programme announced by the regime in Decree no. 19 of 1987 was silent on the issue of creation of states on which both the Political Bureau and the Committee of Eight had reported favourably. In particular, the report of the Politburo stated that:

  • 84 Civil Liberties Organization (CLO). An endangered transition. Campaign for Democracy Bulletin (no. (...)

New states require time and organization to enable them participate meaningfully in the other transition processes leading to the withdrawal of the military from governance ... It is estimated that the above process should require a minimum of three years. Accordingly, it is recommended that the proposed new states be created by the middle of 1987.84

  • 85 See the States (Creation and Transitional Provisions) Decree no. 24 of 23 September 1987.
  • 86 For a description and analysis of the voting arrangement adopted for the various elections during (...)
  • 87 See States (Creation and Transitional Provisions) (no. 2) Decree no. 41 of 27 August 1991; Also Ci (...)
  • 88 State Government (Basic Constitutional and Transitional Provisions) Decree 1991.
  • 89 National Assembly (Basic Constitutional and Transitional Provisions) Decree no. 53 of 1992.
  • 90 Awa U. Kalu, The democratization of Nigeria..., 52.
  • 91 No. 13 of 26 February 1993.
  • 92 See Transition to Civil Rule (Political Programme) (Amendment) (no. 3) Decree no. 52 of 1992.
  • 93 Transition to Civil Rule (Disqualification and Prohibition of Certain Presidential Aspirants) Decr (...)

52In August 1987, the regime announced the creation of two new states, a step that it legalized shortly afterwards in September of the same year.85 Subsequently, in August 1991, a few months before the elections into the state and federal legislative, as well as state executive offices,86 the regime created nine new states and 47 local governments bringing the number of states and local government areas in the country to 30 and 593 respectively.87 The state88 and federal legislative elections89 duly took place in December 1991 and the newly elected officials were inaugurated on 2 January 1992.90 This set the stage for the last phase of the transition programme which was to be regulated by the Presidential Election (Basic Constitutional and Transitional Provisions Decree91 of 1993). For the selection of their presidential candidates, this decree required the parties to organize party primaries from the ward to the national level. Both parties made two initial attempts to choose their presidential candidates but on each occasion, the primaries were cancelled after widespread allegations of irregularities. After the second attempt, the regime rejected the outcome of the primaries and also dissolved all party structures around the country, appointing caretaker committees to run the parties instead.92 It also disqualified all aspirants who had participated in the previous primaries from contesting any further elections during the transition programme.93

  • 94 See Presidential Ejection (Basic Constitutional and Transitional Provisions) (Repeal) Decree No. 3 (...)
  • 95 For a fuller account and analysis of the sequence of events which led to the annulment of the Pres (...)

53The presidential elections took place on 12 June 1993. However, while the results were being collated and announced by NEC, the regime stopped NEC from continuing the collation or announcing any winner. Then on 23 June 1993, Babangida annulled the elections. On the same day, he issued four decrees, one of which repealed the Presidential Elections (Basic Constitutional and Transitional Provisions) Decree94 and effectively terminated the transition process.95

The Management of Civil Society and Human Rights

54It is an abiding paradox of previous (and present) attempts at transition to civil rule in Nigeria that they have all been implemented under severe repression of the civil society. In a confidential, inter-departmental aide-mémoire on the transition written shortly after the Babangida regime assumed power in 1985, General Babangida argued that:

  • 96 Cited in Tunji Olagunju, et al., Transition to Democracy..., 96-97.

... the political programme must enable the present government to survive and to be able to carry out its other programmes under stable and harmonious conditions without a recourse to excessive coercion and repression of the populace ... There is an immediate need to take over the deliberate control and direction of the mass media institutions owned by government – most significantly, all the TV stations, Federal Radio Corporation of Nigeria and newspapers like Daily Times, New Nigerian... because it is always better to guide and direct rather than to seek to censor.96

55One means through which the military has sought to achieve these objectives is through intelligence services which have always played a major role in the management of transitions to civil rule in Nigeria. One of the first moves of the regime of General Obasanjo was to set up a Nigerian Security Organisation (NSO).

  • 97 Sections 2 and 3 of the Nigerian Security Organization Decree, No. 16 of 24 March, 1976. This decr (...)

... for the prevention and detection of any crime against the security of Nigeria, the protection and preservation of all classified matters concerning or relating to the security of Nigeria or for such other purposes ... as the head of the Federal Military Government may deem necessary with a view to securing the maintenance of the security of Nigeria.97

  • 98 Tunji Olagunju, et al., Transition to Democracy..., 96.
  • 99 National Security Agencies Decree no. 19 of 5 June 1986, now Cap. 278, Laws of the Federation, 199 (...)
  • 100 ibid., sections 4(1) and 5(l)(a).
  • 101 Tunji Olagunju et al., Transition to Democracy..., 96-97.
  • 102 State Security (Detention of Persons) Decree no. 2 of 1984, now Cap. 414, Laws of the Federation, (...)
  • 103 See generally, Chukwuemeka Gahia, Human Rights See also the Annual Reports on Human Rights in Nige (...)

56General Babangida undertook a far-reaching re-organization of the intelligence services in Nigeria as part of the preparation for the transition programme. In the confidential aide-mémoire referred to earlier in this section, the regime indicated its intention to re-organize the intelligence services preparatory to the transition and proposed the creation of a position of national security adviser within the presidency to co-ordinate intelligence and security matters.98 In May 1986, following a confidential review of the structure of the intelligence services, the regime abrogated the then Nigerian Security Organisation (NSO) and replaced it with three new intelligence units, namely: the Defence Intelligence Agency (DIA), the National Intelligence Agency (NIA) and the State Security Service (SSS), each of which reported to the president99 It also created the position of co-ordinator of national security as a principal staff officer in the presidency and a National Defence and Security Council to deal with ‘matters of public security’.100 Another new position of national security adviser was created, ostensibly with cabinet rank and as a nonvoting member of the Armed Forces Ruling Council.101 These security agencies, especially the SSS, were to play a major role during the transition programme in the screening of candidates for elective office and in the abuse of administrative detention laws102 by the regime.103

57The Murtala Mohammed/Obasanjo regime took firm steps to control certain sectors of the Nigerian civil society during its transition programme. Although human rights and pro-democracy NGOs did not come into existence as such until during the regime of General Babangida, organized groups such as the labour unions, those formed by university lecturers and students and professional organizations actively monitored and debated the policies of the regime.

  • 104 M.A. Tokunbo, Labour Movement in Nigeria: Past and present. (Lagos: Literamed Publications, 1985): (...)
  • 105 See Trade Disputes Decree no. 7 of 1976 now Cap. 432, Laws of the Federation, 1990.

58Between 1974 and 1975, there were 655 trade disputes in Nigeria, 354 of which resulted in strikes.104 This obviously influenced the attitude of the Murtala/Obasanjo regime towards organized labour. In January 1976, it established a National Industrial Court for the settlement of trade disputes and criminalized recourse to strikes and lock-outs in the collective bargaining.105

  • 106 The commission was headed by Hon. Justice Duro Adebiyi and had three other members, see, M.A. Toku (...)
  • 107 Trade Unions (Central Labour Organization) (Special Provisions) Decree no. 44 of 1976.
  • 108 MA. Tokunbo, 91.
  • 109 These comprised of 42 junior staff associations, 19 senior staff associations and 9 employers asso (...)

59In February 1976, the regime announced the constitution of a judicial inquiry into the activities of organized labour with a mandate, inter alia, to inquire into ‘the activities of foreign trade organizations in Nigeria and the extent to which such activities have been prejudicial to public interest, and any other matters relevant to the organization, administration and financing of trade unions since the attainment of independence.’106 The tribunal submitted its report on 31 August 1976. Five days earlier, on 26 August, the regime had issued a decree107 dissolving the four major central trade unions and, in September, it appointed a civil servant as an administrator of trade unions. Following the report of the Adebiyi Commission of Inquiry, the regime banned twelve leaders of the trade union movement in Nigeria for life from trade unionism.108 In addition, it severely restricted the labour union movement in Nigeria from affiliating or liaising with the international labour movement and initiated steps to rationalize the number of trade unions in the country from 936 at the beginning of 1976 to 70 by August 1977.109

  • 110 Trade Disputes (Essential Services) Decree no. 23 of 1977, Section 3(1).
  • 111 These included, the National Union of Nigerian Bank Employees, Shell-BP and Allied Workers Union, (...)
  • 112 Section 5(2).
  • 113 Section 8(1) and (2).
  • 114 Nigerian Labour Congress (Proscription) Decree no. 22 of 1988.
  • 115 Trade Unions (Miscellaneous Provisions) Decree no. 25 of 1989.
  • 116 For a full account of the violations suffered by trade unions during the Babangida regime, see Chu (...)
  • 117 Trade Unions (International Affiliation) Decree no. 35 of 1989.

60By another decree in 1977, the regime empowered the head of state to proscribe unions which, inter alia, ‘engaged in acts calculated to disrupt the economy’ or ‘wilfully failed to comply with the procedures specified in the Trade Disputes Decree in relation to the reporting and settlement of trade disputes’.110 Several unions were proscribed in the exercise of this power.111 The decree also authorized the administrative detention of union leaders,112 a power exercised to detain several leading union leaders. In addition, the decree precluded judicial proceedings for habeas corpus by or on behalf of persons detained under it.113 The regime of General Babangida also proscribed the Nigerian Labour Congress in 1988, replaced its leadership with a government-appointed sole administrator,114 banned May Day rallies and other gatherings of workers,115 placed labour leaders under administrative detention, proscribed several trade and industrial unions,116 and severely tightened the ban on international affiliation of the Nigerian labour movement.117

  • 118 Better known as the ‘Ali Must Go’ Affair after the then federal education commissioner, Col. Ahmad (...)
  • 119 See J.D. Ojo, Students Unrest in Nigerian Universities: A legal and historical approach. (Ibadan: (...)
  • 120 Section 4(1), Students Union Activities (Control and Regulation) Decree no. 47 of 1989.
  • 121 Trade Unions (Miscellaneous Provisions) Decree no. 17 of 1986.
  • 122 Teaching etc. (Essential Services) Decree 1993. For a fuller discussion see, Abdul Raufu Mustapha, (...)

61In 1978, a student of the University of Lagos was killed by the police during a nationwide protest called by the leadership of the then Nigerian Union of Students (NUNS) demanding the sacking of the Federal Commissioner for Education.118 The regime set up a commission of inquiry into the protest. Following the report of the commission, NUNS was proscribed, its leadership expelled from the universities and detained. Furthermore, the regime terminated the employment of leading academics in the universities, accusing them of being sympathetic to the students.119 In 1985, the Babangida regime de-proscribed several organizations which were banned by the Buhari regime, including the National Association of Nigerian Students (NANS) which was formed as a successor to NUNS, he subsequently proscribed the association twice. In addition, the regime criminalized students’ protests120 and, in order to control trade union activities by academics and university teachers, it forcibly disaffiliated the Academic Staff Union of Universities (ASUU) from the labour movement121 and declared teaching an ‘essential service’.122

The Legal Process and the Judiciary

  • 123 See: Keynote address by Professor H.N. Nwosu, Chairman of the National Electoral Commission (NEC), (...)

62The judiciary has always played a major role in successive programmes of transition to civil rule in Nigeria by adjudicating disputes and election petitions.123 Successive military regimes have always sought to limit and control the powers and relevance of the judiciary in the regulation of transitions. Thus, all military decrees regulating transition contain clauses ousting or severely limiting legal proceedings affecting the transition process except with respect to election petitions.

  • 124 Section 146, Electoral Decree, 1977.
  • 125 (1979), 3 Law Reports of Nigeria, 286, p. 305.

63For instance, under the Murtala/Obasanjo transition, the electoral decree empowered FEDECO to disqualify aspirants for elective offices under certain conditions. It insulated FEDECO from judicial inquiry and granted the members of the commission immunity from legal proceedings.124 In the case of Dr. Nnamdi Azikiwe v. FEDECO, a high court held that this ouster provision did not extend to ‘matters which are not in the contemplation of the electoral decree’ and asserted that the power to regulate decisions of the commission were ‘completely outside or in excess of its jurisdiction.’125

  • 126 [1991] 2 Nigerian Weekly Law Reports (Pt. 176), 732:746-747. See also, National Electoral Commissi (...)

64In the same vein, the Babangida regime set up a parallel tribunal (which included one military officer) to regulate its transition programme and completely exclude the regular courts from having any say in it. In the case of Resident Electoral Commissioner for Anambra State v. Nwocha,126 the Nigerian Court of Appeal held that with or without an ouster clause, the regular courts lacked jurisdiction to adjudicate on electoral matters arising out of the transition.

  • 127 Section 34A(1).
  • 128 The Presidential Election Tribunal and the Supreme Court refused to admit these statements in evid (...)

65Notwithstanding the foregoing, transition programmes in Nigeria have traditionally ended in judicial controversy. The first of these controversies arose in relation to the 1979 presidential election. Its facts bear repeating. The electoral decree of 1977 provided127 that the winner of the presidential election would be the candidate who, in addition to scoring the highest number of votes cast at the elections, also secured at least, one-quarter of the votes cast in at least two-thirds of all states of the federation. The country was then made up of 19 states. Questions which were previously raised about the meaning of this provision were clarified by the chairman of FEDECO and the chief electoral officer of the federation for the presidential elections respectively in two separate releases on 22 December 1978, which indicated that two-thirds of the federation meant 13 states.128

  • 129 Oyeleye Oyediran, Presidential elections result controversy. The Nigerian 1979 Elections, 144-145.
  • 130 See Awolowo v. Shagari [1980] Plateau Law Reports, 189, p. 206. The court further held by a 6-1 ma (...)

66Around noon on 16 August 1979, FEDECO declared Alhaji Shehu Shagari, the candidate of the National Party of Nigeria, (NPN) the president-elect. At the time of this announcement, the result from one of the states of the federation (Borno State) was yet to be received. It was accepted that Alhaji Shagari scored the highest number of votes out of the five contestants. Although he clearly scored up to 25 per cent of the votes cast in 12 of the states of the Federation, he scored only about 19 per cent (less than one-quarter) of the votes cast in the next nearest state, Kano State. A controversy immediately developed over the announcement by FEDECO and three of the five presidential contestants jointly and publicly requested the military to annul the elections.129 Subsequently, Chief Awolowo, who came second in the polls, instituted legal proceedings before the Presidential Election Tribunal to nullify the election of Alhaji Shehu Shagari. In a 5-2 majority decision on September 26, 1979, the Supreme Court of Nigeria interpreted two-thirds of the federation to mean 12 and two-thirds states and proceeded to declare that Alhaji Shagari was duly elected.130

  • 131 B.O. Nwabueze, Nigeria 93: The Political Crisis and Solutions, 41.
  • 132 The text of the official statement announcing the annulment of the election is reproduced in Ogaga (...)

67The Babangida regime announced its decision to annul the presidential elections of 1993 following a court order by the Federal High Court in Abuja charging the National Electoral Commission (NEC) to desist from announcing the results of the election. It has been said that ‘the order of the Abuja High Court that the election be stopped seems clearly wrong, if not perverse, partly because the court’s jurisdiction to make it is, in clear, unequivocal terms, ousted by decree.’131 Nevertheless, in announcing its decision to annul those elections, the regime claimed that it was acting to prevent what it called ‘judicial anarchy’ and ‘rescue the judiciary from ... an unfortunate and unwarranted situation which is fast eroding the esteem, honour and confidence with which the public holds the nation’s judiciary.’132

  • 133 [1993] 3 Nigerian Weekly Law Reports (Pt. 302) 692.

68The annulment of the elections plunged the country into a political crisis. In the case of Attorney-General of Anambra State & 13 Others v. Attorney-General of the Federation & 16 Others,133 14 states of the federation initiated proceedings before the Supreme Court of Nigeria, seeking to nullify the annulment and compel the regime to complete the transition by declaring the final results of the presidential elections. In its decision delivered on 13 September 1993, the Supreme Court declined jurisdiction to hear the suit holding that by virtue of the monolithic command structure of the military, the states could not sue the federal government under a military regime!

  • 134 Constitution (Suspension and Modification) (Repeal) Decree no. 59 of 1993.
  • 135 Interim Government (Basic Constitutional Provisions) Decree no 61 of 1993.
  • 136 Unreported, Suit No. M/573/93, of 10 November 1993
  • 137 For a fuller account of the role of the legal and judicial process during the Babangida transition (...)

69Meanwhile, General Babangida announced on 18 August 1993 that he would be ‘stepping aside’ on 26 August, on which date, an Interim National Government (ING) was to be constituted. On 26 August 1993, General Babangida purportedly issued four decrees including the Decree no. 59134 which formally terminated his regime and Decree no. 61135 formally constituting the Interim National Government (ING). This was the background to the case of Bashorun M.K.O. Abiola & Another v. National Electoral Commission & Another136 in which the winner of the presidential elections of 1993 challenged the legality of the ING. In its decision given on 10 November 1993, the High Court of Lagos held that having terminated his regime through Decree no. 59, ‘President Babangida lacked legislative competence when he signed’ Decree no. 61 constituting the ING which was, therefore, illegal and void. Seven days later, on 17 November 1993, the head of the ING, Chief Ernest Shonekan allegedly resigned, enabling General Sani Abacha, then the Defence Minister and Vice-Chairman of the Interim National Government, to sack the ING and become Nigeria’s seventh military ruler.137

Conclusion. Future Prospects for Sustainable Civil Rule

  • 138 Constitution (Suspension and Modification) Decree no. 107 of 1993.
  • 139 Transition to Civil Rule (Political Programme) Decree no. 1 of 1996.
  • 140 National Electoral Commission (Establishment, etc.) Decree no. 3 of 1996.
  • 141 The scramble for politics. West Africa Magazine (29 July-4 August, 1996): 1178-1181.

70On assumption of power in 1993, General Abacha abrogated the limited structures of civil rule instituted by the Babangida regime and returned the country to full military rule.138 In 1994, he set up a constitutional conference which completed its work in mid-1995. Early in 1996, General Abacha released a multiple-phase, political programme designed to return the country to civil rule in October 1998. Elements of the programme included the creation of more states and local governments, local elections on a zero-party basis, lifting of the ban on political activities, formation of parties, phased elections on party basis into elective local, state and federal positions, resulting finally in the hand over of power to an elected civilian president and the disengagement of the armed forces from power on 1 October 1998.139 In January 1996, the regime gave legal backing to a National Electoral Commission of Nigeria (NECON).140 In March 1996, it organized zero-party local elections and in July began a process to register political parties.141 In its essential aspects, the programme repeats the transition sequence introduced by General Babangida.

  • 142 This paper was written in 1996; Chief Abiola has since died in detention on 7 July 1998; Abacha di (...)
  • 143 See generally, Nigeria: The dawn of a new dark age, human rights abuses rampant, Nigerian military (...)

71All this has taken place against a background of increased political repression in the country. The political consequences of the annulment of the presidential elections of 1993 remain to be addressed or resolved. Chief M.K.O Abiola, the winner of the elections remains in administrative detention with numerous other political detainees.142 All organized units of the Nigerian civil society including professional organizations such as the Bar and medical associations, organized labour, students’ groups, the union of university teachers, women’s and the pro-democracy groups are either proscribed or continuously harassed by the regime. The powers of the judiciary have been weakened resulting in poor morale, caused by habitual disregard of judicial orders, insecure tenure and flagrant interference in the judicial process.143

  • 144 See Ogaga Ifowodo, 177-178.

72It is believed that General Abacha was closely involved in the design and implementation of the aborted transition programme of the Babangida regime. In particular, as defence minister and chairman, Joint Chiefs of Staff under the regime, he took the initiative to put down nationwide protests called by Nigerian pro-democracy groups in July 1993 against the annulment of the presidential election, a measure which reportedly resulted in hundreds of fatalities.144 These are some of the reasons why there are genuine doubts about the sincerity of the Abacha administration to execute its transition programme faithfully. On the eve of the announcement of the Abacha regime’s transition programme in 1995, Africa Confidential reported that:

  • 145 Nigeria: Pushing Abacha Africa Confidential (vol. 36, no. 17): 3.

None of this is new, and the programme can easily be extended well beyond the mooted two years ... The creation of more states and local government areas is popular because it increases the patronage network. The arguments – including those about the effects of government revenue and expenditure – could drag on for years, enabling the military to extend its tenure, claiming each time that the public demands it.145

73A sustainable transition process will clearly need to find a formula for addressing -August 30, 2001 and resolving – the potentially explosive tensions which still exist as a result of the annulment of the 1993 presidential election. Unless this is done, any new civilian government will be built on fragile foundations which may undermine its ability to forestall the return of the military – and lead to yet another transition!

Bibliographie

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Ali, Sidi. H. Murtala Muhammed: A betrayed revolutionary. 1983.

Buhari, Muhammadu. Moment of Truth: Collected speeches. (Government Printer, Lagos, 1994).

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Civil Liberties Organization (CLO). Executive Lawlessness in the Babangida Regime. (Civil Liberties Organization, Lagos, 1991).

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Gahia, Chukwuemeka. Human Rights in Retreat: A report of the human rights violations in Nigeria. (Civil Liberties Organization, Lagos, 1990).

Gboyega, A.E. The making of the Nigerian Constitution. In: Nigerian Government and Politics under Military Rule, 1966 -1979, Oyeleye Oyediran, ed. (Macmillan Press, London and Basingstoke, 1979).

Human Rights Watch (vol. 6, no. 8, 1994).

Ifowodo, Ogaga. Annual Report on Human Rights in Nigeria 1993. (Civil Liberties Organization, Lagos).

Jinadu, Adele. L. The Federal Electoral Commission. In: The Nigerian 1979 Elections. O. Oyediran, ed. (Macmillan, London and Basingstoke, 1981).

Kalu, Awa U. The democratization of Nigeria: More bullet(s) or ballots? Lawyers Biannual (vol.1, no.1, June 1994).

Mustapha, Abdul Raufu. The state of academic freedom in Nigeria In: The State of Academic Freedom in Africa. (CODESRIA, Dakar, 1996).

National Electoral Commission. Views of the federal military government on the report of the Judicial Commission of Inquiry into the affairs of the Federal Electoral Commission (FEDECO) 1979-1983. In: National Electoral Commission (NEC), Transition to Civil Rule, Laws and Materials on the Electoral Process (Federal Government Printer, Lagos, 1990).

Nigerian Weekly Law Reports (Part 302) 692.

Nwabueze, B.O. Nigeria 93: The political crisis and solutions. (Spectrum Books, Ibadan, 1994).

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Nwosu, H.N. Keynote address. Chairman of the National Electoral Commission (NEC), at the Biennial Law Week of the Nigerian Bar Association, Lagos, (12 February 1990). In: Transition to Civil Rule: Laws and Materials on the Electoral Process. (National Electoral Commission, Lagos).

Ojo, J.D. Students Unrest in Nigerian Universities: A legal and historical approach. (IFRA and Spectrum Books, Ibadan, 1995).

Ojo, J.D. Law and University Administration in Nigeria (Malthouse Law Series, Lagos, 1990).

Ola, B.O.F. The recent local government reforms: Advent of a new federal-state-local government relations. In: The New Local Government System in Nigeria: Problems and prospects for implementation. L. Adamolekun and L. Roland, eds. (Heinemann Educational Books, Ibadan, 1979).

Olagunju., Tunji, Adele Jinadu and Sam Oyovbaire. Transition to Democracy in Nigeria. (Safari Books (Express) with Spectrum Books, Ibadan, 1993).

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Notes

1 The 1989 Constitution drafted under the auspices of the Babangida regime was abrogated before it was formally promulgated following the annulment of the presidential elections of June 1993. See, Attorney-General of Anambra State & Others v. Attorney-General of the Federation & Others, [1993] Nigerian Weekly Law Reports (Part 302): 692.

2 With the notable exception of the regime of Major-General Muhammadu Buhari, every military regime in Nigeria has evinced an intention to design and implement a programme of transition to an elected civilian government. See, Awa U. Kalu, The democratization of Nigeria: More bullet(s) or ballot? Lawyers Biannual (vol. 1, no. 1, June 1994): 40.

3 It is widely believed that the claim (in early 1995) by the present regime to have foiled a coup attempt against it by a group allegedly made up of middle ranking army officers without command positions, retired generals, civilian pro-democracy activists and journalists was not credible. Africa Confidential, for instance, reported that ‘there is new concern that human rights activists ... and independent journalists ... will be roped into a secret treason trial held under military rule. Such reports confirm that the tribunal is purging dissidents rather than trying plotters.’ See: Nigeria: Widening the net, Africa Confidential (vol. 36, no. 14): 8.

4 The elections were contested between the Nigerian National Alliance (NNA) made up primarily of the Northern Peoples’ Congress (NPC), the Nigerian National Democratic Party (NNDP) and some other minor parties on the one hand, and the United Progressive Grand Alliance (UPGA) – constituted mainly by the Action Group (AG), the National Council of Nigerian Citizens (NCNC) and the Northern Progressive Front (NPF) which was itself formed in 1964 by a coalition of four small, left-of-centre political parties from the Middle Belt and North-Central Nigeria – on the other. The parties of the NNA won a total of 198 seats in the Federal Parliament as against 109 by the UPGA. The NPC alone won 162 seats to become the largest single party in Parliament. Subsequently, the NCNC deserted the Grand Alliance to join the NPC-led Federal Government.

5 Government Notice no. 147 of 26 January 1966.

6 Government Notice no. 148 of 26 January 1966.

7 See, Lakanmi v. Attorney-General (West) SC. 58/69 of 24 April 1970, [ 1974 ] East Central State Law Reports, 713.

8 Okay Achike, Groundwork of Military Law and Military Rule in Nigeria. (Enugu: Fourth Dimension Publishers, 1978); B.O. Nwabueze, A Constitutional History of Nigeria. (London: C. Hurst and Company, 1981): 161 et. seq.

9 Subsequent military regimes in Nigeria also professed to be corrective and temporary. Addressing the Conference of Attorneys-General in Abuja, Nigeria, on 9 September 1991, the then President, General Babangida put forward what he called the ‘custodian theory of military intervention in our body politic’, in which he justified occasional military intervention in Nigerian politics as necessary from time to time in order to restore sanity to national politics. He argued that such intervention was justifiable provided it was ‘temporary and corrective’.

10 Supra, fn. 10.

11 ibid. The regime promptly nullified the effect of this decision through the Federal Military Government (Supremacy and Enforcement of Powers) Decree no. 28 of 1970, which declared the takeover of government in 1966 to be a ‘revolution’ that had the effect of destroying the pre-existing legal order.

12 B.J. Dudley, Instability and Political Order (Ibadan:University of Ibadan Press, 1974).

13 A.E. Gboyega, The making of the Nigerian Constitution. In: Nigerian Government and Politics under Military Rule, 1966-1979. Oyeleye Oyediran, ed. (London: Macmillan Press, 1979): 240.

14 The idea of state creation was one of two proposals first tabled during the 1957 Constitutional Conference (preceding Nigeria’s independence) by the Action Group delegation (led by Chief Obafemi Awolowo) ostensibly to diminish the perceived dominance of the Northern Peoples’ Congress and dilute the political arithmetic in the Northern Region. The other proposal suggested the entrenchment in the Constitution of a set of fundamental rights. In the absence of a consensus from the Nigerian delegation(s) on the issue of state creation, the conference agreed that ‘a Commission of Enquiry should be appointed to ascertain the facts about the fears of minorities in any part of Nigeria and to propose means of allaying these fears whether well or ill-founded ... The Commission would be empowered as a last resort to make detailed recommendation for the creation of one or more new states, specifying the areas to be included and the governmental and administrative structure most appropriate.’ See Cmnd. 207 (1958), p. 13. The Willinck Commission (named after Sir Henry Willinck, the Chair of the Commission) which was set up under this resolution failed to recommend state creation.

15 Oyeleye Oyediran, The road to the 1979 elections. In: The Nigerian 1979 Elections, Oyeleye Oyediran, ed. (London and Basingstoke: MacMillan Press, 1981): 9-10.

16 For a full text of this speech, see Sidi H. Ali, Murtala Mohammed: A betrayed revolutionary, 1983,121-122; See also, Oyeleye Oyediran, The road to the 1979 elections....

17 Chief Awolowo, for instance, thought that a two year programme terminating in March 1977 would be sufficient, while another leading politician, Chief Sam Grace Ikoku argued in favour of a five-year, five-stage transition programme ending on 1 October 1980.

18 The Supreme Military Council (SMC) was the highest law and decision making organ under the regime. It was made up primarily of the head of state and his deputy (then known as the chief of staff, Supreme Headquarters), the (military) service chiefs, the inspector general of police and the state military governors. See, The Constitution (Basic Provisions) Decree no. 32 of 1975.

19 For a text of the address of General Mohammed to the inaugural session of the CDC, see Sidi H. Ali, Murtala Mohammed: A betrayed revolutionary, 1983, 106-113.

20 See Section 6(6)(6) of the Constitution of the Federal Republic of Nigeria 1979.

21 See States (Creation and Transitional Provisions) Decree no. 12 of 1976.

22 For a description and analysis of the nature and consequences of the reform of local governments undertaken by the regime, see B.O.F. Ola, The recent local government reforms: Advent of a new federal-state-local government relations. In: The New Local Government System in Nigeria: Problems and pospects for implementation, L. Adamoiekun and L. Roland, eds.(Ibadan: Heinemann Educational Books, 1979): 15-34.

23 Federal Republic of Nigeria, Reports of the Constitution Drafting Committee containing the Draft Constitution, volume II. (Lagos: Federal Ministry of Information, Printing Division, 1976): 212.

24 See: Towards Civil Rule: Speeches of His Excellency, Lt. General Olusegun Obasanjo in preparation for changing over to civilian government in 1979. (Lagos: Federal Ministry of Information, 1978).

25 Decree no. 41 of 1977; hereafter called FEDECO Decree.

26 Section 3(1), FEDECO Decree.

27 Section 3(2), FEDECO Decree.

28 Section 4.

29 Decree no. 73 of 1977.

30 Decree No. 32 of 1978.

31 Section 82, Electoral Decree.

32 Section 94. This offence primarily involved the use of a false name in transactions related to the election.

33 Section 95. This offence was committed by ‘corruptly... giv(ing) ... or providing any food, drink, entertainment or provision to or for any person for the purpose of corruptly influencing that person or amy other person to vote or refrain from voting’ at elections.

34 Section 96.

35 Section 97.

36 Sections 105-106.

37 Section 73, Electoral Decree.

38 Section 74(2), Electoral Decree.

39 Section 74(3).

40 See: L. Adele Jinadu. The Federal Electoral Commission. In: The Nigerian 1979 Elections, Oyeleye Oyediran, ed., 21-22.

41 For text of the broadcast by Chief M. Ani, FEDECO Chairman, see FEDECO recognizes 5 parties. New Nigerian (23 December 1978): 7.

42 These parties were the Great Nigeria Peoples Party (GNPP), National Party of Nigeria (NPN), the Nigerian Peoples’ Party (NPP), the Peoples’ Redemption Party (PRP) and the Unity Party of Nigeria (UPN).

43 Oyeleye Oyediran, Political parties: Formation and candidate selection. In: The Nigerian 1979 Elections, Oyeleye Oyediran, ed., 43-66; also, L. Adele Jinadu, The Federal Electoral Commission, In: The Nigerian 1979 Elections..., 30-35.

44 The nature and background to this controversy, which was eventually decided by the Nigerian Supreme Court, is discussed in part five below.

45 Muhammadu Buhari, Moment of Truth: Collected speeches. (Lagos: Federal Government Printer, 1984): 8, 20-21.

46 Questioned on two separate occasions in 1984 about whether (and how soon) the regime intended to return government to civilians, General Buhari replied that the question had not been considered by the ruling Supreme Military Council, see Sunday Times (29 January 1984): 11.

47 The commission was headed by Justice B.O. Babalakin.

48 Views of the Federal Military Government on the Report of the Judicial Commission of Inquiry into the Affairs of the Federal Electoral Commission (FEDECO) 1979-1983, in the National Electoral Commission (NEC), Transition to Civil Rule, Laws and Materials on the Electoral Process. (Lagos: Federal Government Printer, 1990): 314, hereafter called the Views on the Report of the Babalakin Commission. However, the regime could not inaugurate the commission before it was overthrown on 27 August. The commission was eventually inaugurated by the incoming regime of General Babangida on 28 October 1985 which received its report on 14 November 1986.

49 See, Tunji Olagunju, Adele Jinadu and Sam Oyovbaire, Transition to Democracy in Nigeria. (Ibadan: Safari Books (Express) Ltd with Spectrum Books Ltd, 1993): 71.

50 General Babangida was the first and, so far, the only military ruler in the history of Nigeria to rule under the designation of ‘president’. All of Nigeria’s other military rulers have been known as ‘head of state’. See Constitution (Suspension and Modification) Decree no. 17 of 1985 which also created an Armed Forces Ruling Council (AFRC) to replace the Supreme Military Council (SMC), as the highest policy and law making organ of the new military administration.

51 Interview with Time magazine to mark 100 days in office, see Tunji Olagunju, et al., Transition to Democracy..., 72.

52 Better known as and hereafter called ‘Politburo’ or ‘the bureau’. Dr. Ola Balogun resigned from the bureau before it could complete its work while the bureau decided to drop Dr. Edwin Madunagu from its membership for allegedly leaking confidential bureau documents to the media. Thus, the membership of the bureau was reduced to 15.

53 Awa U. Kalu, The democratization of Nigeria..., 51.

54 For a fuller discussion of the report of this committee, see Tunji Olagunju et al., Transition to Democracy..., 96-107.

55 Report of the Political Bureau. (Lagos: Federal Government Printer, 1987).

56 See Newswatch (Proscription from Circulation Decree) 1987. The magazine was proscribed for its issue of 6 April 1987 which published extensive excerpts of the report of the Politburo under the caption ‘Third Republic – A new political agenda’.

57 Decree no. 19 of 1987.

58 ibid., Schedule 6.

59 Itse Sagay, Disappearing act: Nigeria’s bumpy road to democracy. Liberty (vol. 4, no. 1, April 1993): 11.

60 Section 9(1). The Transition to Civil Rule Tribunal, as it came to be known, was constituted with five persons, including a serving or retired judicial officer of any of the superior courts of record as Chairman and ‘four other members of whom one shall be a serving member of the Armed Forces’, [s.9(2)(b)].

61 Section 14 of the decree.

62 [1991] Nigerian Weekly Law Reports (Part 192) 458 at p. 472.

63 See Transition to Civil Rule (Political Programme) (Amendment) Decree nos 14, 19, 26 and 27 of 1989; Transition to Civil Rule (Political Programme) (Amendment) Decree no. 19 of 1992; Transition to Civil Rule (Political Programme) Amendment (No. 2) Decree no. 22 of 1992; Transition to Civil Rule (Political Programme) (Amendment) (No 3) Decree no. 52 of 1992.

64 See National Electoral Commission Decree no. 23 of 1987.

65 Section 2(2). This provision implements the views of tne regime on the Report of the Babalakin Commission concerning the age of the Chairman and members of the Electoral Commission, see Views on the Report of the Babalakin Commission.....para 33, p. 322.

66 Section 3(1).

67 Section 5(1).

68 Decree no. 8 of February 1989.

69 This particular amendment was effected following the replacement of the first Chairman of NEC, Professor Eme Awa, by Professor Humphrey Nwosu who was less than fifty years at the time of his appointment. See Civil Liberties Organisation (CLO), Executive Lawlessness in the Babangida Regime. (Lagos, March 1991): 11.

70 Decree No. 37 of 1987.

71 Decree No. 15 of 17 May 1989. Also later amended by the Local Government (Basic Constitutional and Transitional Provisions) (Amendment) Decree no. 28 of 1989.

72 In Adegbenro v. Akintola [1963] AC 614, the Judicial Committee of the Privy Council held in an appeal from Nigeria that this expression (‘if he is satisfied’) imported a subjective conferment of power and there was no restriction on the range of sources or materials from which a donee of power conferred in these terms could draw in determining whether and when to exercise such powers.

73 Section 34. This power was exercised in at least three verifiable cases. In one instance, a state military governor refused to swear-in two elected local government chairmen in defiance of a court order requiring him to do so. In another case, also in 1989, the regime exercised powers to sack the elected chairman of the Enugu local government area for ‘constituting himself into a security risk by his actions, utterances arid activities’. See, The African Guardian (31 July 1989): 16.

74 By Decree nos. 14, 20, 23 and 63 of 1991. For a full discussion of those elections, see, Civil Liberties Organization, Report on the Local Government Elections of December 8 1990, (Lagos, December 1990).

75 Decree no. 25 of 1987.

76 See, for instance, the Participation in Politics and Elections (Prohibition) (Amendment) Decree no. 9 of 1989.

77 Participation in Politics and Elections (Miscellaneous Provisions) Decree no. 48 of 1991.

78 See, Chukwuemeka Gahia, Human Rights in Retreat: A report on the human rights violations of the military regime of General Ibrahim Babangida. (Lagos: Civil Liberties Organization, 1990): 66-70.

79 Reflections on the National Agenda, speech at the 10th graduating ceremony of the National Institute for Policy and Strategic Studies, Kuru on 22 October 1988, published in Portrait of a New Nigeria: Selected speeches of IBB. (Precision Press, date unstated): 199-200.

80 Transition to Civil Rule (Qualification to Participate in Politics and Elections) Decree no. 52 of 1991.

81 See, The Constituent Assembly Decree no. 14 of 20 April 1988 and the Constituent Assembly (Dissolution) Decree no. 13 of 3 May 1989.

82 13 political associations initially applied for registration but NEC recommended only six of them for registration.

83 See Transition to Civil Rule (Political Parties Registration and Activities) Decree no. 27 of 1989. See also, the National Electoral Commission (Amendment) (no. 2) Decree no. 37 of 11 December 1989.

84 Civil Liberties Organization (CLO). An endangered transition. Campaign for Democracy Bulletin (no. 2, September 1991): 5.

85 See the States (Creation and Transitional Provisions) Decree no. 24 of 23 September 1987.

86 For a description and analysis of the voting arrangement adopted for the various elections during the Babangida transition, see, Use Sagay, Disappearing act...

87 See States (Creation and Transitional Provisions) (no. 2) Decree no. 41 of 27 August 1991; Also Civil Liberties Organization (CLO), Annual Report on Human Rights in Nigeria, (Lagos: CLO, 1991): 57-61.

88 State Government (Basic Constitutional and Transitional Provisions) Decree 1991.

89 National Assembly (Basic Constitutional and Transitional Provisions) Decree no. 53 of 1992.

90 Awa U. Kalu, The democratization of Nigeria..., 52.

91 No. 13 of 26 February 1993.

92 See Transition to Civil Rule (Political Programme) (Amendment) (no. 3) Decree no. 52 of 1992.

93 Transition to Civil Rule (Disqualification and Prohibition of Certain Presidential Aspirants) Decree no. 54 of 1993. Following the annulment of the presidential election, this decree was repealed on 26 June 1993 by the Transition to Civil Rule (Disqualification and Prohibition of Certain Presidential Aspirants) (Repeal) Decree no. 42.

94 See Presidential Ejection (Basic Constitutional and Transitional Provisions) (Repeal) Decree No. 39 of 22 June 1993.

95 For a fuller account and analysis of the sequence of events which led to the annulment of the Presidential elections, see B.O. Nwabueze, Nigeria 93: The political crisis and solutions. (Ibadan: Spectrum Books, 1994): 38-54.

96 Cited in Tunji Olagunju, et al., Transition to Democracy..., 96-97.

97 Sections 2 and 3 of the Nigerian Security Organization Decree, No. 16 of 24 March, 1976. This decree was amended once by the Nigerian Security Organization (Amendment) Decree no. 27 which was made on 4 April, but given retroactive effect to 24 March 1976.

98 Tunji Olagunju, et al., Transition to Democracy..., 96.

99 National Security Agencies Decree no. 19 of 5 June 1986, now Cap. 278, Laws of the Federation, 1990. By virtue of Section 3(2) of the Decree, the president enjoyed joint control over the DIA with the defence minister and chair of the Joint Chiefs of Staff.

100 ibid., sections 4(1) and 5(l)(a).

101 Tunji Olagunju et al., Transition to Democracy..., 96-97.

102 State Security (Detention of Persons) Decree no. 2 of 1984, now Cap. 414, Laws of the Federation, 1990.

103 See generally, Chukwuemeka Gahia, Human Rights See also the Annual Reports on Human Rights in Nigeria published by the CLO.

104 M.A. Tokunbo, Labour Movement in Nigeria: Past and present. (Lagos: Literamed Publications, 1985): 94.

105 See Trade Disputes Decree no. 7 of 1976 now Cap. 432, Laws of the Federation, 1990.

106 The commission was headed by Hon. Justice Duro Adebiyi and had three other members, see, M.A. Tokunbo, Labour Movement..., 88.

107 Trade Unions (Central Labour Organization) (Special Provisions) Decree no. 44 of 1976.

108 MA. Tokunbo, 91.

109 These comprised of 42 junior staff associations, 19 senior staff associations and 9 employers associations, see Government Legal Notice no. 92 of 1978.

110 Trade Disputes (Essential Services) Decree no. 23 of 1977, Section 3(1).

111 These included, the National Union of Nigerian Bank Employees, Shell-BP and Allied Workers Union, Shell-BP Senior Staff Association and the Pan Ocean Branch of the Consolidated Petroleum Chemical and General Workers Union of Nigeria. See Government Legal Notices nos. 44 of 1976, 55 and 57 of 1977.

112 Section 5(2).

113 Section 8(1) and (2).

114 Nigerian Labour Congress (Proscription) Decree no. 22 of 1988.

115 Trade Unions (Miscellaneous Provisions) Decree no. 25 of 1989.

116 For a full account of the violations suffered by trade unions during the Babangida regime, see Chukwuemeka Gahia, Human Rights in Retreat: A report on the human rights violations of the military regime of General Ibrahim Babangida. (Lagos: Civil Liberties Organization (CLO), 1990): 76-80.

117 Trade Unions (International Affiliation) Decree no. 35 of 1989.

118 Better known as the ‘Ali Must Go’ Affair after the then federal education commissioner, Col. Ahmadu Ali.

119 See J.D. Ojo, Students Unrest in Nigerian Universities: A legal and historical approach. (Ibadan: IFRA & Spectrum Books Limited, 1995): 43 -69; also J.D. Ojo, Law and University Administration in Nigeria. (Lagos: Malthouse Law Series, 1990): 49-66.

120 Section 4(1), Students Union Activities (Control and Regulation) Decree no. 47 of 1989.

121 Trade Unions (Miscellaneous Provisions) Decree no. 17 of 1986.

122 Teaching etc. (Essential Services) Decree 1993. For a fuller discussion see, Abdul Raufu Mustapha, The state of academic freedom in Nigeria. In: The State of Academic Freedom in Africa. (Dakar: CODESR1A, 1996): 103-120.

123 See: Keynote address by Professor H.N. Nwosu, Chairman of the National Electoral Commission (NEC), at the Bi-ennial Law Week of the Nigerian Bar Association, Lagos, February 12 1990, In: National Electoral Commission, Transition to Civil Rule: Laws and materials on the electoral process, 307-313.

124 Section 146, Electoral Decree, 1977.

125 (1979), 3 Law Reports of Nigeria, 286, p. 305.

126 [1991] 2 Nigerian Weekly Law Reports (Pt. 176), 732:746-747. See also, National Electoral Commission and Another v. Nzeribe, supra.

127 Section 34A(1).

128 The Presidential Election Tribunal and the Supreme Court refused to admit these statements in evidence during the proceedings.

129 Oyeleye Oyediran, Presidential elections result controversy. The Nigerian 1979 Elections, 144-145.

130 See Awolowo v. Shagari [1980] Plateau Law Reports, 189, p. 206. The court further held by a 6-1 majority that even if it was wrong in its interpretation of two-thirds of the states of the Federation, it would still have upheld the election of Alhaji Shagari as having been organized in substantial compliance with the electoral decree.

131 B.O. Nwabueze, Nigeria 93: The Political Crisis and Solutions, 41.

132 The text of the official statement announcing the annulment of the election is reproduced in Ogaga Ifowodo, Annual Report on Human Rights in Nigeria 1993 (Lagos: Civil Liberties Organization): 168-69.

133 [1993] 3 Nigerian Weekly Law Reports (Pt. 302) 692.

134 Constitution (Suspension and Modification) (Repeal) Decree no. 59 of 1993.

135 Interim Government (Basic Constitutional Provisions) Decree no 61 of 1993.

136 Unreported, Suit No. M/573/93, of 10 November 1993

137 For a fuller account of the role of the legal and judicial process during the Babangida transition, see, Ayo Olanrewaju, The Bar and the Bench in Defence of Rule of Law in Nigeria. (Lagos, Nigerian Law Publications, 1992).

138 Constitution (Suspension and Modification) Decree no. 107 of 1993.

139 Transition to Civil Rule (Political Programme) Decree no. 1 of 1996.

140 National Electoral Commission (Establishment, etc.) Decree no. 3 of 1996.

141 The scramble for politics. West Africa Magazine (29 July-4 August, 1996): 1178-1181.

142 This paper was written in 1996; Chief Abiola has since died in detention on 7 July 1998; Abacha died before him on 8 June 1998. Most of the political detainees have since been released.

143 See generally, Nigeria: The dawn of a new dark age, human rights abuses rampant, Nigerian military declares absolute power. Human Rights Watch (vol. 6, no. 8, 1994).

144 See Ogaga Ifowodo, 177-178.

145 Nigeria: Pushing Abacha Africa Confidential (vol. 36, no. 17): 3.

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