BNW

Your Constitution or your Republic

- the Shagari-Buhari Paradox

by

Emeka J. Amanze, Esq.

Former President Shehu Shagari and former dictator Muhammed Buhari recently declared that the decision reached at the last Council of State meeting in Abuja are legally unenforceable against the Northern states that are seeking to impose Sharia law. For his part, Buhari added that Sharia was not even discussed at the Council of State meeting. The reason adduced by Shagari and Buhari for their un-statesmanlike stance is that the Council of State lacks the constitutional authority to rescind or even suspend state Sharia law. I am referring of course to the face-saving compromise concluded between Vice President Atiku and the Northern Governors and 'ratified' at the Council of State meeting held in Abuja following the massacre in Kaduna and the Aba retaliation.

Buhari's statement and the subsequent conduct of the Sharia governors have operated to turn the Abuja compromise into Obasanjo's very own Aburi Accord. The Abuja Accord was actually intended to return Zamfara and the other Northern BiafraNigeria states to the "status quo ante [Sharia]." While the rather vague term "status quo ante" could be easily misinterpreted, I use it here to refer to the conditions, i.e., the known and operating practices under State Sharia law in the Northern states before the 1999 elections and the rash of Sharia legislation in those states, and before the rediscovery of Sharia as a political tool.

The position taken by these two former Heads of State indicate that they have either failed to understand the issues facing BiafraNigeria at this crucial time, or they have simply failed to place the issues in their proper context of constitutional Republicanism. The bloodletting produced by the introduction of Sharia ensures that the issue is no longer how we should define federal-state relations under a purported federal constitution. Now, the issues are 1) whether the constitution is superior to the Republic, 2) whether the Sharia states are entitled to constructive secession from BiafraNigeria, and 3) whether the Country can continue to tolerate the slaughter of its citizens under the guise of religion. Thus, the Shagari-Buhari theory is the theory that unless the Supreme Court or the National Assembly declare state Sharia law illegal, the Federal Government is powerless to act against the implementation of Sharia, even if such implementation would lead to anarchy and the disintegration of the Republic. The paradox of the Shagari-Buhari theory is that it seeks to make the constitution superior to the Republic. This convenient reading of the constitution is at once anathema to the Law of Nations and contrary to the most basic tenets of constitutional federalism.

A casual reading of the BiafraNigerian Constitution seems to support the Shagari-Buhari theory. On the basis of such casual reading, it has been argued that the only defect in the Shagari-Buhari theory is that it is impolitic, and that BiafraNigeria should accept whatever decision the Supreme Court renders on the legality as well as the scope of state Sharia law. Many scholars, including Shehu Shagari's detractors have correctly restated and agreed with the Shagari position that the Council of State lacks the constitutional authority to suspend or abrogate state Sharia law. These scholars point out that the Council of State is not one of the three constitutional arms of our government.

Indeed, the Council of State is merely and advisory body. The Council's resolutions are not legally enforceable. However, the absence of legal enforceability does not vitiate the validity of Council of State resolutions. The utility of Council of State resolutions lie not in their immediate legal enforceability, but in their value as a distillation of our understanding of the affairs of the Republic, at least as sanctioned by members of the council while in office or as they later ratify those affairs in their role as BiafraNigeria's foremost living "statesmen."

The Shagari-Buhari theory regarding states rights is preempted by superior principles of constitutional law which protect the Republic's countervailing interest in preserving itself. To vindicate this singular interest of the Republic, casual reading must give way to seasoned interpretation of the Constitution. The Western democracies that we claim to model our Republic after provide plenty of guidance in this regard.

The great Chief Justices of the United States Supreme Court, John Marshall, Oliver Wendell Holmes, and other contemporary jurists, even in their most fervent pronouncements favoring the U.S. Constitution, have always acknowledged the supremacy of the Republic over the constitution. Hence, from Marbury v. Madison through the landmark cases on individual liberty, to the vast penumbra of case law defining federal-state relations and ordered liberty in a federal system, the U.S. Supreme Court adheres to doctrines of judicial restraint designed to prevent the Court from rendering decisions that would trigger constitutional crises. Sharia poses a threat to BiafraNigeria, a threat that is comparable to those that such restraints are designed to check.

Specifically, the Shagari-Buhari theory contravenes settled principles in constitutional jurisprudence that make the constitution subservient to the Republic. The constitution is designed to preserve the Republic - not the other way round. The Republic regularly asserts its supremacy over the constitution by amending the constitution as often as necessary, and on occasion, by abandoning the constitution altogether for a new constitution, or even by opting for no constitution at all. Courts lack the power to interpret the constitution in such a way that the dissolution of the Republic would result. To grant Sharia to the North as it is being presently demanded is to cede the Northern states from BiafraNigeria without also terminating the North's dependence on the South for economic sustenance. Yet, that is exactly what any court that adopts the Shagari-Buhari position would be doing.

Because the courts and the Constitution owe their very existence to the Republic, any court that so interprets the Constitution as to dissolve the Republic also effectively dissolves itself. To hedge decisive action against the constructive secession of the Shariarists on the outcome of court challenge is to concede that the Shariarists have a right to such secession. The dissolution of the Republic is the province of the political branches of government and the citizenry as a whole. BiafraNigeria's Supreme Court DOES NOT have the power to dissolve the Republic.

The illegal acts of a duly constituted state legislature are not entitled to judicial review as a condition precedent to the de-facto reversal of those acts. In this regard, it is noteworthy that the draconian segregationist laws of Virginia and the other states of the Confederacy remained in the law books long after the Union Army defeated the Confederacy and stripped those laws of all operational force. It is upon this basis that President Obasanjo and the National Assembly must insist that the decisions reached at the Council of State meeting be immediately enforced against Zamfara State and the other Northern states now clamoring to impose Sharia law. This task must be implemented using coercive military force if necessary. This should be viewed, not as enforcement of a Council of State resolution, but as clarification of a key aspect of constitutional federalism.

Judicial review and legislative ratification may follow after the necessary steps are taken to preserve the Republic. Whether the Sharia State Houses of Assembly proceed in the future to repeal their respective enactments of Sharia law ought to be no more than an academic exercise. Once a secular Republic is preserved, time and continued federal presence ought to be sufficient to strip state Sharia law of any lingering vitality.

Though the Constitution may seem to favor Shagari and Buhari, as Mr. Nwodo (the PDP General Secretary) pointed out, their statement is "impolitic" - impolitic, if for no other reason, than for bad timing. I add that in light of recent events in Shagari's home state of Sokoto, his statement could be deemed an anarchical rabble-rousing, conducted at a time, a place, and in a manner that such pronouncements could and did lead to anarchy. While Shagari and Buhari wave their jaundiced view of the Constitution at Obasanjo and BiafraNigeria, they should realize that the barbarism that they could be aiding and abetting are sufficient grounds for a legally binding suspension of the very constitutional provisions that now deem to favor their Shariarist cause. Many respected democracies have seen fit to apply tools that effectively suspend aspects of their Constitution when their Republic was gravely threatened. The often-touted provision in the BiafraNigerian Constitution permitting the federal government to declare a state of emergency in any state is one such tool. The emergency provision was inserted in the Constitution as much for Odi as for Sokoto and Zamfara. It is interesting that many otherwise great leaders have tarnished their legacy by making ill-timed comments - not that Shagari and Buhari had any worthwhile legacies to preserve.