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The immediate problem that arises is to identify the body or institutions responsible for making laws (legislation) under the new Decree. On state level the decree appears specific as to the body responsible. The new decrees provide that the power of the military governor of a state to make laws shall be exercise by means of edicts signed by him. it can be concluded that a military governor not only determine what law he wants to make but also makes it by merely signing it. This is further supported by the provision that an edict is made when it is signed by the military governor of the state to which it applies, whether or not the edict then comes into force. There is no indication in the decrees obliging the military governor to discuss legislative proposals with the executive council although it is understood that this is invariably done. On the other hand at the federal level the situation is not really clear as to who determines what legislation is to be made. What is clear, however, is the person or body responsible for finally making legislation. The Decrees make it clear that a decree is made when it is signed by the head of the federal military government, whether or not it then comes into force. However in the formulation of legislation, all that the decree says is that ‘the power of the federal military government to make laws shall be exercised by means of decree signed by the head of the federal military government. by strict definition of section 6(1) of Decree No. 32 and section 7(1) of Decree No. 1 of 1984 which provide that ‘There shall be for Nigeria a supreme military council, a national council of states and a federal executive council’, the federal military government is made up of those three institutions.However, the specific functions allocated to each of the three institutions in the Decrees appear to accord with above provision and its logical and literal interpretation. The national council of states deals purely with state matters; the federal executive council determines and executes general policies of the federal military government within such framework which may from time to time be determined by the supreme military council. Aside from this process of deduction by elimination, the functions allocated to the third body, the supreme military council shows that they are constitutional and legislative ones. Confusion about the competent body to formulate legislative policies will be avoided if the Decree has specifically stated that the supreme military council, rather than the nebulous entity, federal military government, has powers to make laws. In fact and in law, it is the supreme military council, like the military governor in the states that has powers to make laws. It cannot in truth, in my view, be the federal military government as stated by the Decree.
As the decrees retained the federal nature of the constitution, they provide that division of powers as between the federal government and the states shall be in accordance with the legislative list in the Constitution of the federation. This means that the classification of subjects into the ‘Exclusive Legislative List’, within which the federal government has exclusive jurisdiction and the ‘Concurrent Legislative List’ over which both the federal and state governments, have jurisdiction, is retained.
However, the retention of this classification appears not only theoretical but cynical in the light of other sections of the decree and practice of government. First, sections 1(1) and 2(1) of Decree No. 32 of 1975 and Decree No. 1 of 1984 negate the classification. They provide that ‘The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever’. In other words the federal military government is not only unlimited in respect of the two legislative lists, it can also enter areas of residual powers constitutionally reserved to the states. Secondly, the apparent freedom of the states to even legislate on matters in the concurrent list is curtailed by the duty to obtain the prior consent of the federal military government. However, where any legislation of a state government conflicts with an Act or Decree of the civilian federal government and the federal military government, the former would be avoid to the extent of the inconsistencies.
In spite of the above seemingly tight overall control of legislative powers by the federal military government, there is sufficient room for manipulation by an enterprising military governor. In spite of the restraints of the legislative lists, the Decrees do not preclude the military governor of a state from making provision for grants or loans from or the imposition of charges upon any of the public funds of the state for any purpose notwithstanding that it relates to a matter included in the exclusive legislative list; and where such matter relates to a subject in the concurrent legislative list, a military governor need not obtain the consent of the federal military government to such provision. The way is therefore left open to a military governor to purportedly legislate in respect of loans or imposition of charges when in reality an ulterior motive might be the objective. The question whether a law made by the Military Governor of a State on a subject in the Concurrent Legislative List was made with the consent of the Federal Military Government shall not be justiceable.
While legislation made by the Federal Military Government is known as Decree, a State one is known as Edict. A decree or edict is made known to the public by means of a sound or television broadcast, or by publication in writing, or in any other manner. Where one or more Decrees or edicts make provisions on the same subject matter the ones published in the Gazettes shall prevail over ones not so published. A decree or Edict is made when it is signed by the Head of the Federal Military Government or a military Governor respectively as the case may be, whether or not it then comes into force. Where no other provision is made as to the time when a particular provision contained in a Decree, Edict or subsidiary instrument is to come into force, it shall come into force on the day when the Decree, edict or subsidiary instrument, as the case may be, is made.
As in the previous Decrees, no questions as to the validity of this or any other decrees or of any edict shall be entertained by any court of law in Nigeria. This provision has been interpreted to mean that although the courts may not question the validity of a Decree, they are not estopped from declaring an Edict void to the extent that it conflicts with a Decree. What has emerged from the comparison of the provisions of Decree No. 1 of 1966 and Decrees No. 32 of 1975 and 1 of 1984 is that whereas the earlier decree placed little or no restrains on government, the latter decrees provide for restraints. Greater care has been taken in the latter decrees to spell out the functions and limitations of government personnel and institutions. While the former administration did not conceive the constitution as a control-mechanism within which the government could operate, the latter decrees are little with checks and balances. In terms of strict and theoretical analysis and interpretation the latter decrees, in contrast to Decree No. 1 of 1966, attempt some measure of ‘constitutionalism in a military administration. However we shall have to turn to the Babangida Administration to see how a military administration, in truth governs in accordance with the wishes of the people.
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