By Awa Kalu, SAN
In my earlier installment, I examined Chief Emeka Ojukwu’s foray into the law courts in the quest for justice and we drew a distinction between jungle justice and judicially determined justice. While jungle justice requires no formula and is based on the whims of those who orchestrate it, judicial administration of justice has a significant bearing on the orderly resolution of disputes.
The late Ikemba Odumegwu Ojukwu became known in the annals of Nigerian history because of his much admired role in seeking justice for his kinsmen and as has been lately appreciated, he also played a role in seeking justice for all Nigerians whose cause has been wittingly or unwittingly ignored or left unredressed.
Ojukwu as the Military Governor of the defunct Eastern Nigeria, was central to the events that led to the declaration of the secession of that part of Nigeria and its constitution into the equally defunct ‘Republic of Biafra’.
In order to enable the lay person to understand the nature and consequence of secession,
I have taken the liberty of borrowing some excerpts from Professor B.O. Nwabueze’s monumental effort in ‘Constitutionalism in the Emergent States’ where unrestrained effort was made to explain the unusual event.
According to the award winning and much acclaimed Professor, “secession is another of the violent maladies that afflict constitutional government in the emergent states. Like the coup, it is directed against the constitution, the aim being to overthrow its authority in parts of the country.
If it succeeds, it becomes a revolution, and creates a new legal order for those parts of the country affected, whereas its failure makes it the crime of treason. To this extent, it is essentially of the same nature as a coup, except that it does not seek to destroy the existing legal order completely but only in respect of a section of the country.
There is yet another difference which has an important bearing upon constitutionalism. Usually a coup either succeeds or fails immediately. There is no prolonged period of uncertainty, during which two governments contend for ascendancy.
If the coup succeeds, its organisers become immediately the new rulers for the whole country, and their regime is legitmised by the success of the coup and the effectiveness of their control. If it fails, its leaders are rounded up at once, and there is usually no question of a rival government operating in competition with, or in opposition to, the legitimate government for a period of time.
This means that there is usually no civil war. None of the coups in Africa has resulted in a civil war. Secession, on the other hand, invariably leads to the establishment of a secessionist government, and to a military confrontation to crush the rebellion.
Almost invariably, too, the secession is crushed, but only after a period (which may extend over some years) of illegal government in the secessionist area, and of war. Now constitutionalism presupposes legality; it is government according to law, but a rebel government is essentially government in opposition to law, and is therefore anti-constitutionalist. And war, too, as has been pointed out, is antithetical to constitutionalism”.
These views are consistent with the ‘Biafra’ situation.
It is no longer within the realms of speculation that Chief Emeka Ojukwu as the Military Governor of the Eastern Region severed the region from the rest of Nigeria. His speech on that occasion had severe implications not only for constitutionalism but for law and order in the country.
He said: ‘Having mandated me to proclaim on your behalf, and in your name, that Eastern Nigeria be a sovereign independent Republic, now therefore, I lieutenant colonel Chukwuemeka Odumegwu Ojukwu, Military Governor of Eastern Nigeria, by virtue of the authority, and pursuant to the principles recited above, do hereby solemnly declare that the territory and region known as and called Eastern Nigerian together with her continental shelf and territorial waters, shall henceforth, be an independent sovereign state by the name and title of the Republic of Nigeria’.
An analysis of the totality of the broadcast speech made by late ‘Emeka Ojukwu makes it clear that the Ikemba believed that he was acting not only on behalf of the people, but with their mandate – a clear vindication of what is an axiom in legal and political theory (but often inadvertently denied by despots), that sovereignty and power belong to the people.
He also believed that when the circumstances warrant, a people may act in disobedience to the constitution. There are several supporters of this assumption. Sir Kenneth Wheare for example, had expressed the view that ‘There are circumstances in which it is morally right to rebel, to refuse to obey the constitution, to upset it.
A constitution may be the foundation of law and order in a community, but mere law and order is not enough. It must be good law and good order. It is conceivable surely that a minority may be right in saying that it lives under a constitution which established bad government and that, if all else is tried and fails, rebellion is right.
No doubt it is difficult to say when rebellion is right and how much rebellion is right, but that it may be legitimate is surely true’. Professor Nwabueze in the book earlier referred to, pointed out that ‘the secession of Eastern Nigeria proceeded from widespread popular demand manifested in mass demonstrations, and finally canalized in a resolution of a joint meeting of the Eastern Nigerian consultative assembly and the advisory council of chiefs and elders, which mandated the military governor for Eastern Nigeria, Lieutenant-Colonel Odumegwu Ojukwu’ to declare at the earliest practicable date Eastern Nigeria a fee, sovereign and independent State by the name and title of the Republic of Biafra’.
He further argues that ‘it was on the authority of this mandate that the military governor made the proclamation of independence on May 30, 1967. The consultative assembly could claim to be broadly representative of the people. As originally constituted, it consisted of four members appointed by the military governor to represent each of the provinces in Eastern Nigeria, but it was later enlarged by the addition of six more members selected from each province by certain representative bodies within its divisions and counties.
The council of chiefs and elders has a uniquely representative character. The office and authority of a Chief rest upon tradition sanctioned by the general acceptance and consent of the community. As the pivot of his community and the symbol of its unity, representation by the Chief might be considered more meaningful to the vast majority of people in the remote villages’.