DEMARCATION OF FUNCTIONS OF GOVERNMENT

INTRODUCTION

Unlike the old Ironsi and Gowon regimes, the new decrees, specifically and clearly, state the various functions of the different arms of government. This is in very marked contrast to the rather aphoristic provisions of Decree No. 1 of 1966. While Decree No. 1 of 1966 virtually glorified the office of the head of state and that of a military governor, almost without restraints, the new decrees hedged these offices and the exercise of their powers around with checks and balances.

There are significant differences between the new decree and those it replaces. The decree specifies that the executive authority of the federation, which is vested in the head of the federal military government, ‘should be exercised by him in consultation with the supreme military council. This is quite unlike what happened under Gowon. The general exercised executive authority and consulted or informed the supreme military council only when it pleased him to do so. Apparently, the new rulers do not want the emergence of another Gowon, and they have, therefore, provided for collective leadership at the very top.

It is in recognition of the need for limited, though military, government that each major organ of government has its functions clearly stated.

MAIN CONTENT

The Supreme Military Council

The fact of its being the highest national organ of government is clearly reflected in the magnitude and amplitude of functions allocated to it. it is responsible for determining from time to time national policy on major issues affecting the Federal Republic of Nigeria in other words, major matters of national policy shall be a collective responsibility rather than the decision of any one person or group of Constitutionally unrecognized persons. It is also responsible for constitutional matters, including amendments of the Constitution of the federation. Its functions also include matters of all national security, including the authority to declare war or proclaim a state of emergency or martial law. The express mention of the right of the supreme military council to declare a state of martial law in the new Decrees (this was not in any of the former decrees) is significant. The full meaning and implication of ‘martial law’ is not often appreciated, even by lawyers.

However the provisions under which it appears in these Decrees show that, perhaps, there is no mistake here. The reason for this being that it is provided for as an alternative to declaration of an emergency, which is a lesser evil. The term ‘martial law is often incorrectly used to cover any of the following: military law, that is, law governing the Armed Forces; the law administered by a military commander in occupied enemy territory in time of war; or the common law right and duty to maintain public order by the exercise of any degree of necessary force in time of invasion, rebellion insurrection or riot. The true meaning of martial law is that it is no law at all. It is merely, in its strictest sense, the suspension f the ordinary law (including civilian and military laws) and the substitution therefore of discretionary government by the executive exercised through the military. It is often called to service when the ordinary laws of land are inadequate to deal with certain situations.

A novel and very interesting function of the council is its exclusive responsibility for the appointment of the head of the federal military government, the chief of staff, supreme headquarters, the chief of Army staff, the chief of naval staff, the chief of Air staff, the general officers commanding, the inspector general of the Nigeria police, military governors, members of the national councils of states and of the federal executive council. This function raises a number of points. First, it is now made clear that any important functionary of government is to be appointed by the collective will and approval of the supreme military council. Second, since council is responsible for appointing members of the other two national councils, that is, the federal executive council and the national council of states, it demonstrates that the supreme military council is the ultimate source of authority in the federation.


And finally, it attempts to take care of the popular but erroneous constitutional assumption, particularly in a military regime, that the removal of the head of government is tantamount to a change of government. This means that any attempted coup d’etat which merely aims at liquidating the head of government without corresponding efforts to overpower the supreme military council will be futile. Because, in such an eventuality, the council will quickly appoint another head of government. The question of who then controls the nation becomes that of effectiveness. When clubs are trumps, all that succeeds is success. The council is also responsible for ratifying appointment of such senior public officers as the council may from time to time specify. In the end, the council is responsible for the general supervision of the work of the national council of states and the federal executive council. This provision further strengthens the hierarchy of control in this administration.

Head of State

By definition, while Decree No. 1 of 1996 defined Head of Federal Military Government to mean not only that but also supreme commander of the Armed Forces of the federal republic of Nigeria, the new decrees concede his headship of government but not supreme commander. He is just commander – in- chief of the armed forces of the federal republic of Nigeria. In the setting of the Buhari administration, the head of state is seen as primus inter pares. However, in reality theory tends to diverge from practice, particularly in the field of government. It can be tentatively said that once again Nigeria has succeeded in innovating a new constitutional concept in the style of a constitutional military monarchy. While there is a distinct recognition of the office of head of government, the powers of the office have to be used and operated in the context of, and subject to the restraints of the other functionaries of government.

The Decree confers on the head of the federal military government functions hitherto performed by law by the civilian president or prime minister. The executive authority of the federal republic of Nigeria is

vested in him and may be exercised by him directly or through persons or authorities subordinate to him. However, it is specifically stated in this decree that the exercise of such powers shall be in consultation with the supreme military council. This provision not found in the former decree, was expressly enacted as a reaction to the unbridled exercise of executive and discretionary powers by the former head of state. It is also significant that the new decrees, unlike the former one, provided an immediate alternative to the head of government. The chief of staff, supreme headquarters, presides over meetings in his absence. This is not only a curtailment of his assumed discretionary powers to appoint an acting head but also a pointed reminder that there is a present alternative to him. With or without him, administration will go on. It is however more significant that the new decrees are clear on the issue as to the absolute discretion of the supreme military council to appoint whoever it wants as head of government at any given time.

Further more, most of the functions through which the head of the former military government maintained his personal authority have been eroded away by the new decrees. We have already noted that his wide and potent executive powers have now to be exercised in consultation with the supreme military council. Sections 8 of Decree No. 32 and sec. 9 of Decree No. 1 of 1984 have clearly given the most important of these powers to the supreme military council. Of note are the former prerogative of appointing and removing key functionaries of government like the various chiefs of staff, general officers commanding and military governors. Since these no longer owed their offices to him personally, they are likely or expected to be more independent. This appears theoretical, though, if only because of military seniority and discipline.

All said and done, the alleged misuse and abuse of powers by the former head of state bring into focus again the unavoidable dichotomy between constitutional law in form and in operation. While some of the wide discretions of General Gowon could be related to Decree No. 1 of 1996, a good number of them arose from the practice and prevailing atmosphere of government. One of the major factors responsible for creating an unlimited head of government in the Gowon regime was the civil war. The event shook the foundation of the nation and it was felt that, at all costs, the nation must remain intact. In the process, draconian and emergency powers were assumed in the name of prosecuting the war.

Powers gained or assumed for war purposes were not relaxed or released after the war and unfortunately voices of protest within government were feeble. At a stage, it was even being assumed that the words or wish of the head of state were laws. Two events illustrate this.The first was the statement of the former defence Ministry’s Deputy Permanent Secretary under the Gowon administration. He spoke, and his words had the force of decrees and he need not write anything down. The second was when the scare of kidnapping was rampant and many innocent lives were being lost. The head of state was obliged to broadcast a threat that kidnappers would be shot. To have shot any person as a result of this would have been obviously illegal because the laws of Nigeria did not prescribe this punishment for a kidnapper. Mere statement of the head of state was not recognized as law by decree yet. It would have been pure murder. The then Lagos State Commissioner of Policy merely re- echoed this broadcast to the public. This was an example of the indiscretions in the Gowon regime. Although the head of state might be riding his tiger, the truth was that he had more alarming passengers. The happenings of the Gowon regime showed clearly cases of public officials being more loyal than the king himself.

The National Council of States

The national council of states, the new institutional innovation under the new decrees, although national in name deals essentially with state matters. It is charged with responsibility for policy guidelines on financial, economic and social matters in so far as they affect the states. It also deals with the formulation and general implementation of national development plans including state programmes. Another function of the council is to consider constitutional matters especially in so far as they affect the states. The council is subject to the overall control of the supreme military council and it has responsibility for such other matter as the supreme military council may from time to time determine. In essence, it is designed as a forum for discussion of purely local (state) matters, thereby, affording the supreme military council more time to deal with purely national matters and issues.

 The Federal Executive Council

The new decrees vest the executive authority of the federal republic of Nigeria in the head of the federal military government but oblige him to exercise such authorities in consultation with the supreme military council with respect to any exercise of the executive authority of the federal republic of Nigeria shall not be justicable. it is however provided that the executive authority of the federal republic of Nigeria may be exercised by the head of the federal military government either directly or through persons or authorities subordinate to him. in another part of the Decree,51 the federal executive council is charged with the responsibility for determining and executing the general policy of the federal military government within such framework as may from time to time be determined by the supreme military council. What, in my view, is meant by the provisions in sections 10 and 11 is the federal executive council merely determines and executes policies as laid down by the supreme military council.

The position occupied by the federal executive council in the set up is akin to that of the cabinet or council of ministers under the civilian regime. This fact is further reinforced by the inclusion of commissioners or ministers (political heads of departments) in the council. Also, section 15(3) of Decree No. 32 of 1975 specifically allocates to the council functions formerly performed by the council of ministers, House of Representatives, or Senate.

In the case of Decree No. 1 of 1984, functions formerly conferred on the national assembly vest in the federal executive council. And where any function was formerly performed by a minister in the government of the federal other than the prime minister or the president such function shall vest in the appropriate commissioner or Minister. The power to make an instrument is conferred on the federal executive council by any law and where the council itself does not act, any instrument made in the exercise of the power may be executed under the hand of the commissioner or minister or permanent secretary to the department of government of the federation responsible for the matter which the instrument relates, or under the hand of the secretary to the federal military government.

The head of the federal military government may also delegate any function conferred on him by any law to the federal executive council. This however excludes the function of signing Decrees. Since the federal executive council is really responsible for the overall general administration of the country, the decree provides that it shall meet normally once a week.

As stated earlier on, state executive councils which were not constitutionally recognized under the old administration have now been given constitutional recognition and functions. Military governors equated with their state governments under the former administration have now been made to operate constitutionally with set governmental apparatus. State executive councils now occupy a position similar to that of their executive councils, thus mentioning that office for the first time for the purpose of state administration.

The new decrees specifically provide that any function which is conferred by the existing law on the civilian scheme executive council, house of assembly or house of chiefs shall be vested in the state executive council. Happily new scheme and a number of them have appealed to the new commissioners not only for their co – operation but

they have also been reminded that, as much as possible, the constitutional principle of collective responsibility shall operate in the running of government. This is a departure form the understanding and practice in the old administrations that the military governors were solely responsible for the government of their areas.

 CONCLUSION

The military government is usually extra constitutional. It is run by decrees. The main organs of government are the Supreme Military Council or the Armed Forces Ruling Council as the case was between 1993 and 1999 and the Head of state was also the Commander in Chief of the Armed Forces.

 SUMMARY

In this module you should be able to explain the structure of a military government.

 TUTOR-MARKED ASSIGNMENT 

Explain the functions of the National Council of State and the Federal Executive Council.