The Gavel and the Baton: Law and Military Rule in Africa, 1970–85

In the 1970s, many independent African states came to be ruled by their militaries. There is a marked convergence in the forms that military rule took in Africa in this period, especially across former British colonies; military rule often entailed the suspension of constitutions, the implementation of some form of martial law, and the creation of tribunals that replaced or existed alongside civilian legal structures. This paper proposes that this convergence can be understood by tracing the itinerary of legal precedent about martial law through the Commonwealth states of Africa in the 1970s and 1980s. In particular, it traces the career of one Nigerian jurist, Sir Udo Udoma, who served as Chief Justice of Uganda and served as a legal advisor to many postcolonial African governments. Military rule raised the question of where the grundnorm of African legal systems lay; debate revolved around whether it was to be found in suspended constitutions, in the structure of the military itself, or in some other location. At the same time, newly independent governments struggled to fill the ranks of their judiciaries with African judges. The problem was especially pronounced in East Africa, where legal education for Africans had been tightly constrained during the colonial period. Beginning in the mid-1960s, countries including Uganda and Tanzania resolved this problem by retaining judges from the Caribbean and West Africa, especially Nigeria – up to and including their chief justices. Udoma was one such figure. These judges, who had recently shepherded their own countries from civilian to military rule, were tasked with articulating the relationship between the armed forces and the judiciary elsewhere on the continent.