Biafra Civil War and the Doctrine of Implied Constitutional Mandate: An Analytical Appraisal (I)

Balogun Sofiyullahi

The Nigeria and Biafran Civil War lasted for about four years of bloodshed, confrontation and the latter’s violent agitation for self-determination as an independent republic, which was equally greeted by a great deal of successful resistance of the former’s sovereign Republic between the year 1967-1970.

Before the purported proclamation of Biafra as a sovereign and independent republic, the then military governor of the Eastern region, Col. Ojukwu had on some occasions sent delegations to Uganda requesting the Chief Justice of Uganda to support the struggle against the Nigeria republic for Biafra secession therefrom, with which foreseeing the devastating consequences, the latter declined to pledge his support

On 30 May 1967, the military governor of Eastern Nigeria acting on the mandate given to him three days before by a joint resolution of the consultative assembly for the region and the advisory council of chiefs and elders, proclaimed the secession of the region from the federation of Nigeria. By this, Eastern Nigeria was proclaimed ‘a free, sovereign and independent state by the name and title of the Republic of Biafra’. The rebellion finally collapsed on 12 January 1970, i.e. after almost thirty-two months.

However, it is a fundamental principle of Law and undisputed constitutional acceptability that in every revolutionary or secessionist struggle; be it peaceful or violent: it is the success or failure of the rebels that eventually determines the status or recognition to be accorded to those rebels that triggered the agitation or confrontational disposition.

Hence, there is need to bring to fore the consequence of the Civil War on the Nigerian Legal System in the light of the  Doctrines of Implied Constitutional Mandate and Revolution, using the 1999 Constitution and lightly, the erstwhile 1963 Constitution(Suspension and Modification) Decree No. 1, 1966 as a yardstick for proper and  adequate elucidation and drawing inferences from countries like Unites States of America, Pakistan, India and Southern Rhodesia for analytical purpose.

The Biafran Attempted Secession: A Debacle Of An Unsuccessful Revolution

Revolution, from its actual sense, presupposes a sudden change not within the purview of the legal order, i.e. Constitution. Whereas, the ‘success’ or ‘failure’ of the belligerent rebel regime is the criterion upon which it is adjudged, if it succeeds, it becomes a  ‘law-creating fact’  and as such, a successful revolution in law,  and the ‘test of efficacy’ is a basis for according lawful  validity for the new status to be accorded to the  rebel regime_ that is, a transformation from rebels to a lawful sovereign republic. If it fails, all the revolts are liable under the criminal law for the great crime of treason.

However, the Biafra controlled territories was to an extent a sizeable proportion that gave the federal government to my view, a source of grave concern. ‘Rebellion’, said Prof. Nwabueze, ‘though unlawful, may give rise to a state of belligerence, when the rebellious party is in control of a sizeable portion of the territory of the rightful sovereign and has organized armies and raised supplies sufficient to oppose and, if possible, destroy the lawful government. A rebellion which has attained such proportions becomes a civil war, and as such is recognized in international law as entitling both parties (i.e. the Nigerian and rebel Biafran Governments) to the rights of war _belligerent rights as they are called _just as if it was a war public war between two independent nations’.

 Fortunately, the war ended barely four years after wanton destruction of property and loss of lives, when the insurrection of the rebel regime, on 12th of January, 1970 surrendered to the lawful sovereign government_ Federal Military Government. Hence, making it a resistive unsuccessful revolution of the insurrectionary rebellion Biafra regime, by the lawful sovereign of Nigeria.

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The implication of the nullity of the Biafra attempted ‘Secession’, said Prof. Nwabueze, is that ‘being a nullity from the beginning, it is as if it never took place at all…The primary implication is that the republic of Biafra never came into existence at all. As a non-existent entity, its constitution was a complete nullity. And without a constitution, there can be no de jure government.”

 Secession : Towards A Defeat Of Constitutional Supremacy

One must however, point out now and ever, that a secessionist call of any nature is a direct affront to the existing legal order, i.e. the Constitution of the country. In the case of the civil war between Nigeria and Biafra, the then 1963 Constitution of the Federation (suspension and modification) Decree was the target of defeat by the Biafra rebel regime.

However, as stated earlier, our yardstick for purposes of analysis would be the hitherto 1999 Constitution of the Federal Republic of Nigeria, for ease of comprehension and foresight. Therefore, it is the view of this writer that for any State to pluck itself out a constitutional relation as per the union it has with the federation, two things are principally inevitably apposite to be noted in any Constitution for purposes of defeat by that seceding State, to wit :

  1. The Supremacy clause in the Constitution, i.e. section 1 thereof; and
  2. The States (regions) of the Federation as contained and prescribed in the Constitution.


The Supremacy of the Constitution

A step to secede, is practically a call by such secessionist rebels, to flagrantly ignore the golden provision of section 1 of the 1999 Constitution, which provides:

  1. (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.

(3) If any other law is inconsistent with the provisions of this Constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.

However, my humble understanding of Section 1 of the 1999 Constitution is to wit:

  1. The Constitution shall be over and above every individual and group in Nigeria without reservation;
  2. The provisions in it cannot be tampered with except, in accordance with the Constitution itself;
  3. No person or group for whatsoever reason, shall converge with the sole purpose of overthrowing the legitimate government of the day, be it in form of coup d’état, secession or via any extra constitutional measure;
  4. In so far as the Constitution has united the Nation and established a perfect union, no group can secede there from and hence, making it a ‘counter revolutionary document’;
  5. Any law so made by anybody competent or not, which is inconsistent therewith must die to the extent of such inconsistency and furthermore, no State can make a law declaring itself a sovereign republic.
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However, the President of the Federation by the Constitution is conferred with the power to maintain and keep the unity of the Nation, even, if necessarily by force. importantly, it is to be noted that section 5(1) of the Constitution gives him the executive powers of the federation and the President, being the Grand Commander in Chief of the Armed Forces is by the provision of section 8(1) and (3) of the Armed Forces Act to ‘determine the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order’.

More so, secession being to usurp the power of the Federation within a particular enclave and to destroy the existence of the lawful sovereign therein. Hence, the provision on Proclamation of State of Emergency is sacrosanct in Constitutions of many Nations. In Nigeria, section 305 of the Constitution is of practical importance particularly, subsection (3) (a),(b),(c),(d),(f).

Section 305(3)(f) of the Constitution provides :

The President shall have power to issue a Proclamation of a state of emergency only when-

(f)  there is any other public danger which clearly constitutes a threat to the existence of the Federation.

The States Of The Federation As A Union In The Constitution

The States of the Federation are creations of the Constitution and therefore, any lawful (unlawful precluded) attempt to tamper with them as prescribed therein_ requires strict compliance with the Constitution itself. I.e. sections 7, 8 and 9 of the same Constitution must be adhered to hook, line and sinker.

For clarity of purpose, section 3 provides:

  1. (1) There shall be thirty six states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom,Anambra,Bauchi,Bayelsa,Benue,Borno,CrossRiver,Delta,Ebonyin,Edo,Ekiti,Enugu,Gombe,Imo,Jigawa,Kaduna,Kano,Katsina,Kebbi,Kogi,Kwara,Lagos,Nasarawa,Niger,Ogun,Ondo,Osun,Oyo,Plateau,Rivers,Sokoto,Taraba, Yobe and Zamfara.

Hence, any attempt by any state or group of persons or government to pull itself out of the circle above not being for purpose of creating a new State as envisaged under section 8 of the Constitution is to my view, an attempt to overthrow the legal order illegally or unconstitutionally.

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More light would have easily be thrown to the fore, on the unconstitutionality of any act of a Governor of any State in the Federation who supports secessionist tendencies of that State (like the erstwhile military governor of Eastern Nigeria : Col. Odemegwu Ojukwu) by alluding to the provision of section 5(2)  of the 1999 Constitution of Nigeria, which vests in the Governor of a State the executive powers of the State . But, subsection (3) is the most articulate on the matter which provides:

5(3) The executive powers vested in a State under subsection (2) of this section shall be so exercised as not to –

  • impede or prejudice the exercise of the executive powers of the Federation;
  • endanger any asset or investment of the Government of the Federation in that State; or
  • endanger the continuance of a federal government in Nigeria.

However, the implications of the aforesaid subsection, to my mind, are that :

  1. The Governor of a State shall not exercise the executive powers of the State vested in him, in such a way as to against that of the President to whom the executive powers of the Federation is vested and particularly_ the power given to the President under section 5(1)(b) of the Constitution, to maintain and execute the Constitution;
  2. The Governor of a State shall not destroy, confiscate, seize or convert to its own use, for any reason whatsoever, assets of the Federal Government in his State. This was done by the State of Texas in 1861 when the lawful government in the State proclaimed secession from the United States of America. See the Supreme Court of U.S decision in: Texas v. White.
  • The Governor shall not declare secession of his State from the Federation because by so doing, a declaration of a sovereign republic within a lawful republic if it succeeds becomes a revolution and the State seizes to exist as a part of the Federal Republic of Nigeria.

A line must however be drawn at this point, that it is the peculiarity of a particular Constitution that determines whether an attempt by a State to secede is unconstitutional or not. For instance, N.J Obumneme, posited that “interestingly, the constitutions of Burma, Malaysia and the former USSR expressly included the right to secede”. It is however to be noted, that it is the erstwhile Burma Constitution of 1948 by article 201 recognizes Right to secede but this has been considerably amended by section 10 of the Constitution of Republic of Myanmar 2008 which prohibited secession in clear terms.



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