In January 1961, nearly 200 African judges met in Lagos, the capital of Nigeria, for the First African Conference on the Rule of Law. The problem before them was a large one: how to adapt legal systems made in Britain, France, Belgium, or Portugal for use in African countries that were now “free,” or would be in the near future. Nigeria was a fitting place for the conference. It had won independence from Britain the previous year, and there were, as President Nnamdi Azikiwe told the delegates, “nearly as many lawyers within its borders as there are to be found in the rest of indigenous Africa.” Nigeria's mature judicial institutions gave his government moral authority, and made it a model for the rest of the continent. “It is commonly agreed,” Azikiwe said, “that Nigeria offers to Africa and to the world probably the best example of a country that is noted for orderly advance.”Footnote 1 Delegates to the conference could not agree on much, and they sparred over language, ideology, and what to do about the parts of the continent still under colonial rule. They were all of the same mind about one thing, however: the danger of tyranny. The Committee on Executive Powers, chaired by Abdoulaye Wade of Senegal and Herbert Chitepo of Southern Rhodesia, warned that Africa's new states were vulnerable not only to external forces, but to threats from within. Military takeovers threatened to end democracy before it could begin, and emergency measures like martial law endangered hard-won freedoms.Footnote 2 Colonial despotism, they feared, might give way to homegrown autarky.
Ten years later, these fears had come to pass. Coups became common events.Footnote 3 “It has proved infectious, this seizure of government by armed men, and so effortless,” wrote the South African sociologist Ruth First. “Get the keys of the armoury; turn out the barracks; take the radio station, the post office and the airport; arrest the person of the president, and you arrest the state.”Footnote 4 Many governments had become dictatorships, and soldiers occupied statehouses across the continent. Even in countries where civilians held onto power, emergency measures hollowed out the legal protections available to ordinary people. In Nigeria, military rule was the order of the day for most of the next four decades. When a prominent Nigerian civil rights lawyer was asked to describe how politics worked in his country, he cited neither a constitution, nor a statute, but Mao Zedong's Little Red Book. “Power flows from the barrel of the gun,” Mike Ozekhome wrote. “Power is an aphrodisiac, a potent catalyst, and a ready tool in the hands of dictators, tyrants, fascists, and autocrats,” “a bemusing liquor” which generals imbibed “again and again, with stupendous and insatiable Bacchanalian propensity.”Footnote 5 What explains this turn to dictatorship, and how did it spread from one place to another? For former British colonies in Africa, a small group of judges who traversed the continent in the name of pan-African cooperation are part of the answer.
Soldiers and despots across the continent got “drunk” on power beginning in the mid-1960s, as Ozekhome wrote. But, to extend his metaphor, it was judges who passed the bottle between them. The jurisprudence of authoritarianism was portable, and judges carried it across the continent as they were appointed from one British ex-colony to another. They were indispensable in authorizing executive power, and converting the commands of military leaders into formal administrative structures. “The fascists played the tune,” Mahmood Mamdani wrote of this moment in Ugandan history, “and the judges danced.”Footnote 6 Not all of Africa's military leaders were “fascists,” but Mamdani was right to see a dialectic between soldiers and judges. This article traces the itinerary of one Nigerian judge, Sir Egbert Udo Udoma, who served in two African states where the military dominated politics: Uganda, where he was the first African chief justice, and Nigeria, where he sat on the Supreme Court and advised several military governments.Footnote 7 His influence was much wider than these two countries, however. Udoma developed a jurisprudence that aspiring military leaders worldwide found useful, and his rulings were used to sanitize coups across the common law world, including in South Asia, the Pacific, and the Caribbean. Udoma is largely unknown today, but he lurks in the background of the global history of militarism in the twentieth century.
The Traffic in Judges
Beginning in the early 1960s, African administrators in former British colonies devised an informal system for sharing legal expertise across their borders. Countries that had many African judges, like Nigeria, would assist those that did not, like Uganda. Commonwealth states in the Caribbean would contribute personnel as well, all under the banner of pan-African solidarity. This arrangement solved a problem; some former British dependencies were better equipped to create their own legal systems than others. In West Africa, Africans had been deeply involved in colonial law since the mid-nineteenth century. In Atlantic enclaves like Freetown, Accra, and Lagos, Africans and Europeans had co-produced feisty legal cultures to structure commerce and resolve disputes, which colonial administrators belatedly realized could be turned against them.Footnote 8 By the time British rule came to East Africa, administrators were warier of African involvement in law. In Uganda, Kenya, and Tanganyika, the British made a concerted effort to keep legal education beyond the reach of the African majority.Footnote 9 This meant that there were very few African lawyers in these countries at independence, and nearly all judges were European or Asian.Footnote 10 In contrast, in Ghana, Nigeria, and Sierra Leone (and, to a lesser extent, Gambia and British Cameroon), there was a large pool of experienced lawyers eligible for appointment to the judiciary by the mid-twentieth century. Some of them became judges by joining the bench in other jurisdictions, like rural Botswana or the distant Seychelles, with the understanding that when they went home it would be to take up prestigious positions in their national judiciaries. In this way, the administrative pathways that had once carried judges between British colonies were repurposed to bring West African judges to the rest of the continent.Footnote 11 This was done in the name of solidarity. As politicians saw it, sharing personnel not only fixed a staffing problem, it also helped knit together Africa's now-independent states through the legal tradition that they shared as former British colonies.Footnote 12 “African judges,” predicted the last colonial governor of Eastern Nigeria, “are not, I imagine, disposed to regard themselves as units in a world wide service in quite the same way as their English colleagues.”Footnote 13 In fact, African judges did come to see themselves as interchangeable, but the “world wide service” they moved within would not be the British Empire. Rather, it was the circuit of pan-African cooperation that emerged among Britain's former colonies.
In eastern and southern Africa, West African and Caribbean judges replaced the Europeans and Asians who had staffed the colonial courts.Footnote 14 Leaders like Julius Nyerere in Tanzania and Milton Obote in Uganda hoped that they would be palatable to the public in a way that other foreigners were not. Politicians could gesture to the new judges as proof that they had fulfilled their promises to “indigenise” the judiciary, even though they were not citizens of the countries that they served. A network began to emerge, and a series of unusual firsts followed: the first African chief justices of Uganda and Botswana were Nigerians, and the first Black chief justice of Tanzania was from the tiny Caribbean state of Dominica. Kenya and the Seychelles would both have Ghanaian chief justices, and high courts across eastern and southern Africa were presided over by Sierra Leoneans and Gambians. In their new postings, West Africans joined colonial-era appointees from South Asia, Britain, Ireland, and Cyprus, some of whom were quietly kept on after independence, despite politicians’ promises that African judiciaries would be made up of Africans.Footnote 15
Intra-African judicial appointments took place at various levels.Footnote 16 Those who were posted at high ranks—to supreme courts, for example—were elite, accomplished people, who had already served as high court judges in their home countries. In the 1960s and 70s all of them were men, but women would join the African judicial circuit in the 1980s.Footnote 17 All had been lawyers before being called to the bench, and most had moved up through the ranks of the colonial courts. None were radicals, although many were ardent nationalists.Footnote 18 They valued the common law tradition that their countries had inherited from Britain, even though some also wanted to reform, modify, or indigenize it. They were generally more accomplished than the Europeans whom they replaced, whose level of birth was often higher than their aptitude (the colonial judiciary promised a comfortable life, but few British judges chose it if they could have a career at home). The Europeans took early retirements, or continued their careers elsewhere in Britain's dwindling empire. Judges of South Asian descent were in the hardest position, since most had been born in East Africa and had no other “home” to return to.Footnote 19 Some entered academia or sought work in international institutions, while others gave up law entirely.
In lower courts, the foreign appointees to the bench were usually inexperienced. In Tanzania, the Nigerian Judicial Technical Assistance Program staffed rural magistrates’ courts with Nigerian lawyers who had never had judicial appointments. Nigeria did not export its best graduates for these positions—the diplomat who facilitated the program could come up with no adjective to describe them besides “unemployed”—and there were regular complaints about their ignorance of local affairs.Footnote 20 One local official noted that the Nigerian magistrates openly disdained the “backwardness and low standard of living” of Tanzania, and angled for appointments in cities, “where they cling to the hope they may find some of the High-Life to which they are accustomed back home.”Footnote 21 They were widely disliked, and the hope that they might have more public credibility than Europeans or Asians quickly dissipated. However, the fact that they were alienated from the people they served was not a problem to the governments that hired them. In fact, it was an asset. If a judge began to rule against the state too often, it was easy to remove him if he was a foreigner. It was even easier if he was unpopular. Firing a respected judge might cause a scandal, but a disreputable one with no local allies could be sent packing at any time.
These expatriate judges carried a heavy burden in their adopted countries. In the era of “big man” politics that followed independence, the task of interpreting the rules made by soldiers (and civilian authoritarians) fell to them. In large part, they were the ones who gave the go-ahead to martial law. As Abdel Razzaq Takriti writes, not all coups reflect “rapacity in the pursuit of power and resources on the part of caricaturized Third World military leaders.”Footnote 22 Indeed, coup-plotters had their own distinct ideologies, and few of them simply wanted power for its own sake. Many hoped to transform their societies. The same was true of judges, some of whom also believed that law could be a tool to “discipline” public life. More than anything else, Nigeria's guiding ideology from its first coup in 1966 to the return of democracy in 1999 was an abstemious kind of militarism. The soldiers who ruled Nigeria hoped that making military law into the law of the land—for everyone, not just men in uniform—would revolutionize society. In Uganda, Idi Amin would espouse a similar hope. “Since I came into power,” he described in a 1974 interview, “automatically Uganda became revolutionary. Not only the armed forces, but the whole police, prisons, the whole public.”Footnote 23 Military leaders promised that their “revolutions” would cleanse African societies of the decadence and corruption that lingered after the end of colonialism, bringing order and prosperity as they went. Some called their takeovers acts of “decolonization,” and cast themselves as the vanguards of liberation—a liberation that would be more meaningful, they said, than formal independence, which civilian elites had fumbled. To soldiers and their supporters, there was no irony in the notion that true freedom would come in the form of an army officer.
But most civilians did not see soldiers as liberators. In both Nigeria and Uganda, military rule was a time of repression and humiliation. After the return of democracy in Nigeria, a Lagos businesswoman named Nkem Liliwhite-Nwosu looked back on it with undiminished fury. The “jackboots” who ran Nigeria into the ground were “blue-blooded aristocrats who spoke with authority through the nozzle of the gun; ignorant greenhorns who claimed to have the solution to problems which their refined, erudite, old fathers could not solve, and who ended up compounding the problems for us all.”Footnote 24 Her anger was justified, and many people shared it, even though not all regimes could be painted with the same brush. To be fair, military rule was not inherently repressive, just as not all civilian governments were disposed towards freedom.Footnote 25 Even moderate military regimes were illiberal, however, and nearly all soldiers shared a disdain for civilians, whom they saw as a chaotic rabble in need of discipline and tutelage. How did the political fortunes of so many African states fall into despotism, and how did this happen so quickly? Some have blamed authoritarian personalities, others Cold War geopolitics.Footnote 26 Ideology and psychology explain something about where Africa's authoritarians came from, but they do not explain how coup-plotters and impetuous soldiers became “legitimate” heads of state. It was judges who translated their vague promises of “order” into tangible policies, and transfigured their power grabs into political transitions that the rest of the world recognized. For Nigeria and Uganda, that story begins in a Dublin lecture hall.
Sir Egbert Udo Udoma
The soldiers who ruled Nigeria and Uganda trained and served in the British armed forces, and they venerated Britain's martial culture even when they styled themselves as radicals.Footnote 27 However, the colonial barracks was not the only place militarism sprang from. Its roots lay in law schools too. Starting in the late nineteenth century, a trickle of West Africans went to English and Irish universities to study law, supported by their families, towns, and churches. One of these students was Egbert Udo Udoma, an academically gifted trader's son from the Ibibio town of Ikot Abasi in southeastern Nigeria. Udoma studied law at Trinity College, Dublin in the 1930s, where he became a prominent student leader. He then went to Oxford to read for a doctorate with Margery Perham, after which he was called to the bar at Gray's Inn.Footnote 28 The ideas he encountered there shaped how he later interpreted the law at home. He read philosophers like H.L.A. Hart and J.L. Austin, who would leave a deep mark on African law by way of students like Udoma.Footnote 29 He was also exposed to continental theorists like Carl Schmitt and Hans Kelsen, who were starting to appear in British university curricula.Footnote 30 Udoma would remember Kelsen particularly well.
After completing his education, Udoma returned to Nigeria in 1945, where he became a successful lawyer.Footnote 31 In 1961, a year after independence, he was appointed to the High Court of the Federal Territory of Lagos, which was the main feeder to the Nigerian Supreme Court. In his telling, his appointment was a ploy by his rival Nnamdi Azikiwe, who “would have preferred to see me as a judge than a politician in Parliament in the opposition.”Footnote 32 In his decisions, Udoma showed himself to be a staunch disciplinarian with little patience for civil liberties.Footnote 33 Executive power was the lodestar of his judicial philosophy, and ethnic patriotism lay at the center of his politics.Footnote 34 Throughout his career, Udoma would speak of the need to indigenize the practice of law, and he often claimed that his legal thought was influenced by the moral world of his upbringing.Footnote 35 Udoma saw the Ibibio people as an embattled minority caught between the larger groups that swayed national politics, and a concern for the interests of minorities—ethnic and otherwise—ran through his jurisprudence. He was a Nigerian nationalist, but when forced to choose between the interests of the country and those of his ethnic community, he often chose the latter.Footnote 36
In 1962, Ugandan Prime Minister Milton Obote approached the Nigerian government to request an African judge who could serve as chief justice of Uganda. Udoma's name came up as a possible candidate, and after some deliberation, Nigerian Chief Justice Sir Adetokunbo Ademola offered him the opportunity. Udoma had reservations about it; the pay was not high enough, and although the prestige of being a chief justice was attractive (as was the knighthood that came with it), Udoma's ambitions lay in Nigeria, not on the other side of the continent.Footnote 37 Ademola assured him that a spot on the Nigerian Supreme Court would be his after his sojourn to Uganda. Reassured by this promise, Udoma packed his bags and moved to Kampala with his family. One of the first people he met was the wife of the British high commissioner, who embarrassed him by remarking on how many Nigerians were serving in east African judiciaries. “Darling, this is a complete takeover!” she noted candidly.Footnote 38 She was not entirely wrong. Several Nigerian judges were already on the bench in Kenya, and more were being planned for Tanganyika, although none occupied a rank as high as Udoma's.
Milton Obote needed someone like Udoma. Obote was not a populist, and he could not count on the mass support of the Ugandan people; he had been borne to power by a series of tepid political compromises, not a wave of public approval. He had many enemies, and his authority was tightly constrained.Footnote 39 He was hamstrung by the 1962 constitution that Uganda adopted at independence—a document drafted, like many African constitutions, around a negotiating table in London. This constitution gave outsized power to Buganda, the rich and politically savvy kingdom at the center of the country, and its king served as Uganda's president.Footnote 40 This was a ceremonial position, but that did not make Obote any less wary of kabaka Muteesa II, whom he saw as a rival. The legislature was beyond his control. He commanded the military, but soldiers like Idi Amin clearly had minds of their own (and Amin's coup would eventually be Obote's undoing). He had few friends, at home or abroad. His best hope was to corner the judiciary, but to do so he needed someone pliable at its top. Udoma, a respected judge with no local entanglements, and no protector but Obote himself, was the perfect candidate. Udoma seemed oblivious of this wider context, which made him all the more useful. His technical approach to the law, and his accommodating stance toward executive power (as shown by the 1966 Chief Obafemi Awolowo case, among others), meant that Obote could count on Udoma's support as long as he framed the facts in the right way. Obote controlled what his chief justice saw and who he met, which allowed him to do just that.
As soon as he arrived in Uganda, Udoma set about reforming the legal system along more national lines. His first step was to abolish the terminological distinction between the High Court system, which was used mostly by Asians and Europeans, and the “African Courts” that heard village-level disputes and civil matters, and used local customary laws. “All the courts in the country were African courts,” he contended, “since Uganda was an African country.” “African” customary courts were converted into magistrate's courts, making their structure of appeal to the High Courts more straightforward, and many customary offenses were abolished. Seeing that there was “not a single African judge” and only two African magistrates in Uganda, he promoted the magistrates to judges, and appointed others from the small but growing bar. He also saw to it that Uganda “no longer looked towards India for inspiration” in legal matters. This entailed replacing the penal code (derived from Calcutta's) with one modeled on Nigeria's.Footnote 41 Udoma did all this because he felt it was his mandate to create a legal system “unbesmirched by colonial folly or imperial impudence,” as a fellow judge wrote of his tenure.Footnote 42 He got on “congenially with Obote, whose major objective was to give Udoma maximum comfort.”Footnote 43 He was also made president of the constitutional court, which would soon make him a very important person.
Three years into his appointment as chief justice, Udoma took his Christmas holiday in Nigeria. While he was there, he witnessed the January 1966 coup that toppled the First Republic and installed a military regime. He returned to Uganda the following month, which, to his astonishment, was also in turmoil. On February 22, Obote suspended the constitution, seized all powers of government, and dismissed the president, kabaka Muteesa II, on the grounds that he was plotting a coup. On April 15, Obote announced a new constitution, giving himself wide, dictatorial powers. He dissolved Buganda and destroyed its palace, including the chamber holding the drums of state.Footnote 44 Obote defended this as an act of decolonization; it was, as Oloka-Onyango wrote, “an attempt at autochthony, in other words, the indigenization of the constitutional regime…seeing that the 1962 instrument was basically an arrangement with Britain.”Footnote 45 It was also imperious and undemocratic. Udoma was blindsided by these back-to-back crises, and he began taking Valium to relieve his anxiety.Footnote 46 Several months later, Uganda's new constitution was put to a legal test. Udoma would be the one to decide it (Figure 1).
Figure 1. Sir Egbert Udo Udoma in his chambers, Kampala, 1967.
Uganda v. Commissioner of Prisons ex parte Matovu
The challenge to the new constitution came in the form of Michael Matovu, a provincial chief of Buganda who had been arrested during the constitutional transition.Footnote 47 Matovu's lawyer filed a writ of habeas corpus for his client's release, which led to a suit before the supreme court, Uganda v. Commissioner of Prisons ex parte Matovu.Footnote 48 The state's case was made by Godfrey Binaisa, Uganda's attorney-general and most accomplished lawyer.Footnote 49 Matovu's lawyer was Abubaker Kakyama Mayanja, a member of Parliament from Kabaka Yekka, a Catholic party affiliated with Buganda. Udoma had a low opinion of Mayanja. He found the lawyer's filing defective for several procedural reasons, and he might have declined to consider it for any one of them.Footnote 50 But the court went ahead with the hearing: “We decided, in the interests of justice, to jettison formalism to the winds and to overlook the several deficiencies in the application.”Footnote 51 Citing the American cases Marbury v. Madison and Baker v. Carr on the political doctrine question, and the Pakistani case State v. Dosso on what constituted a legitimate coup, Udoma ruled in favor of the state. In a lengthy decision, he concluded that the new constitution was legal because it was the product of a “revolution.” For years to come, the legitimacy of many African governments would turn on Udoma's use of this term.
Udoma's understanding of what constituted a revolution came from the Austrian jurist Hans Kelsen, whose Pure Theory of Law, first published in 1934, had a strange career in the postcolonial world.Footnote 52 Udoma's interpretation of Kelsen went as follows: if a regime had taken power suddenly, and it was able to rule “effectively,” then it was “revolutionary,” which, in the custom of international law, made it “legitimate.” A system could be said to be “effective” if its commands were obeyed, and infractions of them were punished according to that system's own rules.Footnote 53 Udoma found Kelsen's positivism useful for its emphasis on “effectiveness” as a tool to assess the validity of regimes born of coups.Footnote 54 In Matovu, the state presented just eight affidavits attesting to the new constitution's effectiveness, all by members of Obote's inner circle. One of them was by Binaisa himself in his capacity as attorney-general. These sworn statements were scant evidence of the new government's broad acceptability, but they were proof enough for Udoma. A low bar for “effectiveness” had been set. This was a crude kind of positivism, and it did not do much justice to the theorist cited to prop it up.Footnote 55 Kelsen's “pure theory” of law was just that—a theory—and his defenders did not condone how judges like Udoma used his ideas. “The courts, in their conduct, can never ‘use’, ‘apply’, ‘approve’, or ‘follow’ Kelsen's theory,” Denis Ong observed. “They can only be the instruments by means of which Kelsen illustrates his descriptive thesis. The judges cannot use Kelsen: Kelsen uses them.”Footnote 56 The fact that Kelsen meant his work to be descriptive rather than prescriptive did not stop judges from making his theory into a political mandate, however. To politicians like Obote, Kelsen was helpful in transmogrifying power grabs into “revolutions.”
Matovu had a larger effect, which radiated outward across the continent in the wake of the trial. Matovu established that Uganda's grundnorm—the spirit that animated its law—was not to be found in a constitution, a king, or an abstraction like “the people,” but in Obote's “revolution” as an event. In so doing, it institutionalized the coup as a legitimate form of political succession, making it easy for usurpers to cloak their actions in legality. As Oloka-Onyango writes, “it marked the first real test of the post-colonial judiciary, and it also commenced the transition from a parliamentary system of governance to a presidential regime, buttressed by a framework of military and autocratic central authority.”Footnote 57 In Uganda, the effect of the decision was to sanitize the new constitution, and with it Obote's heavy-handed administration. The constitution eliminated Obote's most persistent rival—Buganda—and it allowed him to make Uganda “a police state in a real sense,” as a British diplomat observed. It gave him the “physical and legal apparatus to enforce his will by whatever degree of persuasion or compulsion may be expedient—provided that he can keep the army in its corner.”Footnote 58 Obote could not in fact keep the military on his side. But until that time came, the new constitution was a powerfully repressive tool at his disposal. Matovu gave it a legal imprimatur.Footnote 59 General Idi Amin would find this positivist doctrine useful when he overthrew Obote, his former ally, in 1971.Footnote 60 He was not the only one. By giving upstart soldiers a path to legitimacy, it emboldened them to overthrow civilian governments (and one another).
Once the blood had been mopped up, the first thing many coup plotters did was head to court. Foreign powers were more likely to recognize a new regime if it had the support of its judiciary, and an order from a judge made it easier to bring the rest of the state apparatus in line. All the usurpers had to do was convince a judge that they had staged a “revolution,” and he, in turn, had to justify why that was the case. Throughout the Commonwealth, judges cited Kelsen to argue that any sudden, systemic political change (like a coup) counted as a revolution, and that revolution was legitimate as long as it was successful.Footnote 61 They cited one another too, building up a self-supporting structure of jurisprudence as they went. Matovu, along with the Dosso case from Pakistan, served as its foundation. The putsches, constitutional annulments, and sham declarations of independence that judges called “revolutions” were not revolutionary in any sense outside of the Kelsenian one (and not always even that).Footnote 62 They made little attempt to destroy the existing structures of governance and build new ones in their place, and few of them were ideological transformations. Some, like Obote's constitutional “coup,” did not even involve a change in leadership. Soldiers and other authoritarians who seized power through coups usually presented themselves as forces of stability and continuity—except in the courtroom, where it was in their interests to argue the opposite.
***
After the Matovu decision had been handed down, Obote showered Udoma with respect. A driver and car with a special “Chief Justice” license plate was provided for him (“the car was a Mercedes Benz,” he recalled wistfully in his memoirs), as were “soft furnishings of my residence” and an “increased emolument for myself” that allowed him to host elaborate garden parties.Footnote 63 In late 1968, Obote abruptly turned on his chief justice, firing him through a press release. Udoma believed he was dismissed because his Nigerian rivals had bribed Obote to dismiss him in a complex (and probably fictitious) plot to derail his career. The more likely explanation is that Udoma had simply run the course of his usefulness; Obote had gotten what he wanted out of him, and so he was sent home. Obote explained the dismissal by saying that the next step in the development of the Ugandan judiciary was to appoint a Ugandan as chief justice. In the next breath, he instead appointed Sir Dermot Sheridan, an Irish judge who had been Udoma's subordinate.
Udoma was embittered that his close relationship with Obote had ended, but he was proud of what he had done. “I left Uganda a happy man,” he wrote, “satisfied that I had served Uganda honestly and sincerely to the best of my ability and which had won for me the admiration of the people and respect and affection for me in their hearts.”Footnote 64 One biographer contends that Udoma had private reservations about his role in enabling Uganda's authoritarian path, but his commitment to the “correct” interpretation of the law led him to rule as he did despite his misgivings.Footnote 65 If Udoma did have qualms, or if he understood what his decision might lead to in the future, he left no record of them. The fact that precedent was portable between common law jurisdictions meant that judges far beyond Uganda would read his decision, cite it, and use it as a guide for how to suspend constitutions, or launder coups. Its logic can be found in contexts ranging from Rhodesia's illegal independence to preserve white minority rule, to the flurry of military coups in the Seychelles, to Guyana and Fiji in their eras of dictatorship. One of the most important stops on the Matovu decision's itinerary was closer to home, however: Nigeria, where Udoma returned in 1969 to take up the position on the Nigerian Supreme Court that he had long coveted.
Lakanmi and Another v. the Attorney General of the Western Region of Nigeria and Others
Much had changed in Nigeria during Udoma's time in East Africa. Coups in January and July 1966 had overthrown the Nigerian First Republic, making the country into a military dictatorship. The Eastern Region seceded as the Republic of Biafra, precipitating a brutal civil war.Footnote 66 The republican constitution was suspended for the duration of the war, and its principles were abandoned in the name of keeping the country from breaking apart. Nigeria had starved its own citizens, bombed its eastern region into oblivion, and transformed its armed forces into a war machine. After the secessionist side was defeated in 1970, people began to raise questions about the military government they were left with. What gave soldiers the right to rule, and what was the regime's foundational force? Could it be found in the constitution, even though that constitution had been suspended by decree? Did it reside in the will of the executive, or in some general public mandate? Did civilians have any rights that soldiers could not take away? These questions, which had been raised in Uganda seven years before, were now recapitulated in Nigeria.
The Nigerian military government's legality was tested in the 1970 case Lakanmi and Another v. the Attorney General of the Western Region of Nigeria and Others. Lakanmi considered three linked questions: what constituted a coup d'etat, whether the sitting military government had seized power “legally,” and whether the Nigerian constitution remained in force under military rule.Footnote 67 The case arose over a convoluted dispute about which federal entity was allowed to investigate the assets of public servants in the Western Region who had been accused of corruption. This jurisdictional quibble was the product of a flurry of contradictory decrees and edicts by the federal and regional governments. Decrees were the main lawmaking apparatus of military administrations, and most were broad, sweeping, and virtually incomprehensible to the general public. At issue in Lakanmi was one such decree, Decree No. 45 of 1968, which declared that “the validity of any order, notice or document made or given or purported to be made or given or of any other thing whatsoever done or purported to be done under the provisions of any enactment of law repealed…shall not be enquired into in any court of law.” In short, it declared that no civilian court could adjudicate an issue arising from the abandoned Nigerian constitution. Nor could courts assess the validity of the military's decrees. Chief Justice Sir Adetokunbo Ademola objected to this, and the Supreme Court took on Lakanmi in order to measure how far the power of judicial review extended.
Just like Matovu, Lakanmi turned on the question of whether or not the Federal Military Government was “revolutionary,” and, therefore, whether or not it was legitimate. Ademola led the court to rule that the Nigerian military's takeover had not been a real revolution, and was therefore illegitimate.Footnote 68 From this, it followed that the constitution of 1963 was still in force, and that the contents of decrees were justiciable by civilian courts. In support of this interpretation, Ademola cited the fact that an “interim” military government had taken over after the July 1966 coup that brought Yakubu Gowon to power. If the “interim” government had been intended as temporary, as that term implied, then it did not meet the standard of permanence to be considered a “revolution.” Moreover, although Decree No. 1 of 1966 had formally nullified the civilian constitution, the fact that much of the state apparatus had continued to operate as if it were still in place meant that the new regime was not “effective.” This was further evidence that no revolution had happened in Nigeria. Udoma dissented, arguing that Gowon's coup constituted a legitimate revolution, just as Obote's “coup” in Uganda had.
Ademola's ruling was narrow and technical, but it amounted to a defense of civilian democracy: it established that the military cabal that had ruled Nigeria for the four years prior was illegal, and its decrees were fallible. The civilian constitution had been in force all that time, albeit in the shadow of the Supreme Military Council. Ademola's decision was a brave provocation, which he knew would goad the dictatorship he deemed “illegal.”Footnote 69 The press scorned the ruling, and the public cared little about the theoretical and, as one journalist called it, “metaphysical” tone of the debate about grundnorm, a Kelsenian term of art that became an unlikely buzzword in 1970s Nigeria. The public was angriest about the ruling's most immediate consequence: that the corrupt bureaucrats whose investigation started it all got off on a technicality. Lakanmi was “a grave challenge” to soldiers, as Ben Nwabueze remarked, and there was no doubt in anyone's mind that the military would strike back.Footnote 70
The court delivered its judgment on April 24, 1970, and two weeks later the Supreme Military Council promulgated the Federal Military Government (Supremacy and Enforcement of Powers) Decree (No. 78). The decree nullified Ademola's ruling by executive order, and it borrowed heavily from Udoma's earlier rulings.Footnote 71 In language derived from Kelsen, it declared that the military government was a “legal” regime. It proclaimed that the January 1966 coup that toppled the First Republic and the July 1966 coup that installed Yakubu Gowon as head of state had been “revolutions,” and were therefore legitimate transfers of power. “Both revolutions,” moreover, “effectively abrogated the whole pre-existing legal order in Nigeria except what has been preserved under the Constitution (Suspension and Modification) Decree 1966, that is, Decree No. 1.”Footnote 72 Courts, including the Supreme Court, could make no more judgments about the contents or validity of decrees, and they were to make no mention of the constitution.
At the heart of the Lakanmi case was a disagreement about law's purpose. To soldiers like Gowon, law was a tool of social control. It was useful because it could foster “discipline” (which was one of their ideological touchstones), but using it for anything beyond that might bind the military's hands. To Ademola, law's most important function was not to make order, but to protect people from their leaders. The military's annulment of Ademola's ruling was a threat to lawyers not to meddle in the military's affairs. Many took it to heart, and law lecturers fell over themselves to show how the Supreme Court had erred in deciding the case. “It is to the credit of the military administrators that the judiciaries were left severely alone” during the civil war, one of them wrote, “but it is regrettable that it took them some time to appreciate the reality of the new political situation.”Footnote 73 “The Supreme Court took its stand on a banana skin,” wrote an editorialist, “and not surprisingly, it has been helped to slip.”Footnote 74 After this point, courts did not adjudicate the military's edicts and decrees so much as referee them against one another. The legal foundation for the next three decades of military dictatorship had been laid.Footnote 75
Eventually, the Kelsenian doctrine that military regimes found so useful ceased to be good law. In Pakistan, the Dosso decision was overturned by Asma Jilani v. Government of the Punjab in 1972. In one fell swoop, Asma Jilani declared Pakistan's military government illegal, ended martial law, and renounced the language of “revolution” that validated coups as legitimate state-making events.Footnote 76 Positivism, the Pakistani court ruled, had been stretched to the breaking point: Kelsen's definition of “revolution” was “by no means a universally accepted theory, nor was it a theory which could claim to have become a basic doctrine of modern jurisprudence.”Footnote 77 Judges who were friendly to the military had willfully misinterpreted Kelsen's theory, making an academic abstraction into a concrete, empirical rule. Finally, it was recognized for what it was: a facade for tyranny. It took many years for it to crumble, but Asma Jilani was the first crack in the wall.Footnote 78
As for Udoma himself, he ended his career embittered that he had never been made chief justice of Nigeria. When Ademola retired in 1972, Udoma was overlooked for promotion. Ademola believed that Udoma had betrayed the judiciary, and he made it clear that he did not want Udoma to succeed him as chief justice. Gowon respected Ademola's opinion in spite of their differences, and he appointed Attorney General Taslim Elias to the position instead. In 1975 Udoma was passed over again, this time for a foreign judge, Sir Darnley Alexander of St. Lucia. “It should be noted,” observed one of Udoma's hagiographers, “that army officers at the highest echelon of government had preferred Udoma for the job because of his brilliance and seniority at the Bench.”Footnote 79 It is no surprise that the army angled for Udoma, but it was not because of his “brilliance.” It was because he had been an enabler of executive power in every judicial appointment he held.
In February 1975, Gowon made a speech to jurists from thirty-four former British colonies who had gathered in Lagos for the annual meeting of Commonwealth Law Ministers. He assured them that his government both “operates with a constitutional framework” and “maintains a deep respect for the rule of law.” Neither of these things was true. Nigeria's constitution had been abandoned for nearly a decade, and the “rule of law” meant little under military rule. But most of the ministers listening to him were in no position to point out his hypocrisy. Military coups and constitutional annulments were happening all over the former British Empire, and only a few months later, Indira Gandhi would declare a state of emergency in the largest common law country of them all, India.Footnote 80 Her law minister, H.R. Gokhale, who would draft some of the harshest measures of the Indian emergency, may have been in the audience for Gowon's address (members of his delegation certainly were). Perhaps they were emboldened by what they saw in Lagos, watching the audience politely assent as Gowon insisted that Nigeria's constitutional suspension “need not be construed as an aberration from the over-riding premise of the rule of law.”Footnote 81 To my knowledge, Indira Gandhi's jurists did not cite African precedent to justify the Indian emergency, but they certainly knew what was going on in Nigeria.
Over time, African judiciaries would see their power to constrain presidents and generals diminish even further. “The tempo by which our country is governed,” wrote Nigerian law professor Olu Onagoruwa in 1990, “places more emphasis on power rather than right, on force rather than morality, on executive rascality and deceit rather than decorum and humane consideration.” By the 1990s, the Nigerian military had so fully captured the state that judges could simply be commanded. Onagoruwa wrote that General Ibrahim Babangida legitimized his power “by the sheer force of his own metamorphosis—a legal Frankenstein capable of consuming its creator.”Footnote 82 Some observers came to doubt whether law had any real meaning in postcolonial Africa. As the Kenyan jurist Yash Ghai wrote, “Public consciousness is relatively unmarked by the discourse of rights, democracy or justice. The rule of law is a quixotic idea, although there are certainly ministers and lawyers who will pay lip service to it on suitably ceremonial occasions. More prevalent is the discourse of power.”Footnote 83 Indeed, it was raw struggles for executive power, not sober debates between judges, that characterized most African politics at the end of the twentieth century.
Nonetheless, autocrats like Babangida, Idi Amin, or Obote (who returned to power in 1981) continued to seek the approval of judges, both for their coups and for the decisions that they made once they were in charge. What they sought in law was legitimacy, both to their own people, and to the wider community of nation-states.Footnote 84 They also sought tools to help them “discipline” society, which some judges were willing to give them. In the end, authoritarians usually got their way whether they had the support of their judiciaries or not. If a judge refused to be pliant, he could be overruled, removed, or, if all else failed, assassinated. Even so, it was better to have a judge's stamp of approval than not. The judges most likely to give it were foreigners.
Legal Challenges to Military Rule
As Ademola's ruling in Lakanmi shows, not all judges in military regimes accommodated authoritarianism. There were judges who moved in the same circles as Udoma who worked doggedly to keep soldiers out of politics. Some critiqued executive power from the bench, and several paid a high price for doing so.Footnote 85 We might consider Frederick Kwasi Apaloo, the Ghanaian judge who tenaciously sat on his country's Supreme Court from Kwame Nkrumah's administration through Flight Lieutenant Jerry Rawlings’. His attempts to check executive power perturbed all eleven of the governments (civilian and military) that he served, and both Nkrumah and Rawlings tried and failed to remove him. After retiring, he became Chief Justice of Kenya in 1993, where, much as he had at home, he aggravated the dictatorship of Daniel arap Moi by crusading against the death penalty. Unlike Nkrumah and Rawlings, Moi could get rid of his meddling chief justice because he was a foreigner, and Apaloo was sent back to Ghana after less than two years.Footnote 86
Another important critic of military rule was T. Akinola Aguda, the Nigerian judge who served as Botswana's first African chief justice, and later as the pugnacious director of the Nigerian Institute of Advanced Legal Studies.Footnote 87 On the Botswana Court of Appeal, he vigorously defended the judiciary's independence, and issued a landmark ruling against corporal punishment.Footnote 88 At home in Nigeria, he was a vocal critic of the military. Aguda cut through the flimsy legal scaffolding that upheld military rule. Why were soldiers in charge? “The only reason is that they control our guns,” he answered in 1986. “No more, no less. Is that a viable political arrangement? Why not a government formed entirely of the trade union leaders? Or the doctors? Or the architects? Or the engineers? Or the lawyers? The only reason is that these people have not got guns.”Footnote 89 Aguda rejected the positivist doctrine that had accommodated military rule. He was withering toward his fellow judges: their “bulging bank accounts” had made them forget their obligations to the public, and the “Austinian positivism” they half-remembered from their legal educations gave intellectual cover for their complicity with militarism.Footnote 90 The judiciary, he argued, had legitimized soldiers’ heavy handedness, and gilded the destruction of hard-won legal protections as acts of “decolonisation.” Any judge who gave credence to a military regime “should resign his appointment,” he wrote, naming those whose actions he found especially shameful. The argument they had derived from Kelsen—that the “effectiveness” of a military regime was also proof of its legality—was, in his view, a cowardly “face-saving formula.”Footnote 91 It was a self-serving interpretation that allowed them to keep their comfortable positions, while leaving civilians defenseless against the “hot-blooded young lions with no respect for human life,” as Liliwhite-Nwosu memorably called Nigeria's soldier elite.Footnote 92
It would perhaps be asking too much of Udoma and others like him to have acted differently. A dissident judge in a usurper regime is caught between a rock and a hard place; if you resign, you will almost certainly be replaced with someone more pliable. If you keep your post, you may be able to rein in the regime through your rulings, but you will also legitimize it by your very presence. Both options risk retaliation, and neither is likely to achieve much. As the Cameroonian jurist Carlson Anyangwe wrote, “no revolutionary regime has ever surrendered its newly won power for the sake of a judge's unhappy conscience.”Footnote 93 This is a defeatist view, but it reflects the calculations that judges have to make when faced with a case like Matovu or Lakanmi. The victories that courts won against militaries were usually pyrrhic: a judge might find his decision simply annulled, as in Nigeria, or he might face an even worse fate. In Amin's Uganda, there was no need to cultivate a judiciary that would support the executive's decisions. If a judge stood in his way, Amin simply had him killed.Footnote 94 Civilian courts were gelded by military dictators, who preferred tribunals (for soldiers and civilians alike), commissions of inquiry, or their own commands as instruments of law. Decisions like Matovu and Lakanmi opened the door to this, but soldiers might have forced it open anyway.
It is important that the Matovu decision, which profoundly shaped Uganda's postcolonial history, was not made by a Ugandan judge. “The mere fact that somebody is black or a Ugandan does not necessarily mean that he is devoid of colonial outlook towards law and justice,” wrote the lawyer Picho Ali, alluding to Udoma's endorsement of Uganda's undemocratic constitution. “But the chances are that a Ugandan is more likely to appreciate the socio-political values of our society as reflected in our laws. This appreciation constitutes a rebellion against colonialism in the field of law and the judiciary.”Footnote 95 What is “colonial” about law and what constitutes “rebellion” against it are debatable, but one thing seems clear: it is easier for a judge to rule against the public good when he or she is not part of the “public” in question.
Udoma is not the only proof of this concept. We could look to any of the British judges who preceded him on the Ugandan bench—men who, to understate the matter, also made rulings that harmed the Ugandan public. Or we might consider James John Skinner, an Irish-born judge who became a fellow traveler to the Zambian nationalist movement. He became a Zambian citizen at independence, and in 1969 he was appointed chief justice of his adopted country. In this position, he vocally defended the independence of the judiciary.Footnote 96 After an especially bad clash with Kenneth Kaunda in 1970, Skinner accepted a position as chief justice in neighboring Malawi. In Malawi, where he had no status and no history, he would be less querulous. There were no more principled stands against executive power from the Malawian bench, and he settled into a copacetic relationship with the autocratic president who hired him, Hastings Banda. Up until his departure in 1985, Skinner sided with the government on nearly everything, from banning miniskirts to allowing Banda to be president for life. Another example is Philip Telford Georges, the Dominican judge who served as Chief Justice of Tanzania from 1965 to 1971. The Supreme Court heard few legal challenges to the ruling party's increasingly autocratic conduct during these eventful years, even as Tanzania remade itself through villagization and embraced a radical new form of socialism: transformations that one would expect would keep the Supreme Court busy. In fact the court was conspicuously quiet, in part because Tanzania's chief justice was a foreigner from a small country, who could be sent home if he rocked the boat.Footnote 97 Skinner and Telford Georges were not necessarily bad judges, but they were in no position to curb the power of the leaders who hired them. Knowing they might be deported at any minute, they usually placated the governments they served. This could entail giving a coup a legal gloss, turning a blind eye to repression, or handing a president a blank check. Putting their rhetorical commitments to indigenization aside, presidents and generals liked foreign judges because they were pliable and replaceable.
Udoma cast a long shadow in the countries where he served. In Uganda, parts of Matovu remain in force today, and the form of military rule endorsed by Lakanmi's annulment lasted until 1999. In both countries, much precedent from the military era still stands. Coel Kirkby and Joe Oloka-Onyango both used the language of ghosts to describe how the Matovu decision shaped Ugandan law long after the president who orchestrated it was chased into exile. This language is apt: precedent can “haunt” law even after it is overturned, and Africa's most gripping political metaphors are those about the undead—zombies in Nigeria, for example, or vampires in Uganda.Footnote 98 When Murtala Muhammed fired Nigerian judges en masse, or Olusegun Obasanjo flicked away challenges by executive order, Lakanmi hovered just out of sight. When Yoweri Museveni detained Ugandan dissidents, Matovu whispered in his ear.
Conclusion
In the aftermath of colonialism, pan-African cooperation forged paths across the continent, and the ties that had bound the empire were remade as postcolonial solidarities. Once Africa's new states were connected by these circuits, there was no telling what would move along them. Sometimes these circuits carried radical ideas about decolonization, new art forms, and new designs for living. At other times, they carried absolutism and its legal contrivances. Cooperation made coups and the jurisprudence underpinning them portable, and judges like Udoma were the ones who carried it in their baggage. Behind the story of the portable coup is a larger point: independence had a dual spirit. One of those spirits was liberatory, but the choices that soldiers and judges made did not always bend towards freedom. The other spirit was martial. In many former British colonies, that was the one that prevailed. As of this writing, both Nigeria and Uganda have presidents who began their political careers in uniform. The age of military rule in Africa has come to an end, but the martial spirit lives on.
