On July 18, 2013, at 82, he publicly asked God to spare his life for five or possibly more years to complete the tasks he set for himself on this earth. He had already achieved so much but felt that his country still needed his intellectual guidance, especially to reorder our political order. His achievements were almost too numerous for even his acolytes to keep track of. But his energy was boundless even as age and ailment gradually took their toll. “The fact that I’m incapacitated by illness, which makes me not strong to stand on my feet to address this gathering,” he said on the occasion, “doesn’t mean that I’m ready to go. I hope to live up to 90 years.” That was an underestimate. He lived to 92. Merciful God gave him twice as much time as he requested. Perhaps God knew that Nigeria needed the man for a little while longer. On October 29, 2023, it was over. Who was this man?
I. One Summer Afternoon
I cannot recall what day it was in 1987. The third Idigbe Memorial Lecture to be delivered by Professor Nwabueze was scheduled for the day. He was expected to speak on the topic “Transition from Military Rule to Constitutional Democracy.’ The lecture did not take place. He arrived at the venue inside the University of Benin promptly. But the audience, better accustomed to “African time,” did not. He could not accept that situation, and he returned to his private lodging at the other end of town. This remains the only Idigbe Memorial Lecture that was not orally delivered. I in the company of Professor Itse Sagay chased after our guest. Unable to persuade him to return to campus to give the lecture (though he was gracious to enough to accept our apologies for the disappointment), the occasion turned into a courtesy visit of sorts. At this time, Professor Nwabueze’s fame, especially for constitutional law, had reached the ends of the earth. He had, by my recollection, already published nearly ten major titles on the subject since the first was published in 1964. In fact, these books, especially the ones he fondly called the three ‘ISMs’ published between 1973 and 1977, were my introduction to rich American constitutional scholarship. He was nothing short of my idol. Yet, on this auspicious occasion, the question I itched to ask him was not about constitutional law at all.
In 1972, Nwabueze published his Nigerian Land Law, an excellent exposition of the arcane doctrines of a subject that is a nightmare for many a law student. There was one glaring and surprising omission. This book did not include the important topic called leases, a standard aspect of the syllabus. The author explained in a preface that that chapter of the draft was lost during the Civil War, and that he was not able to immediately rewrite it from scratch, but that he would do so in a subsequent edition. In his Autobiography nearly three decades after our meeting, he said, “I was clutching on to the manuscript of the book as we evacuated from place to place to escape from the increasing ravages and destruction of the war.” Until he got the opportunity to send the manuscript to his mentor and former colleague, Professor L.C.B. Gower in England for safe keeping, who duly retuned it to him intact after the war. Nothing was mentioned in this narrative about the loss of the chapter. Instead, after the war, he said, “I revised the chapters, added some new chapters.” But not the missing chapter. What I wanted to know from Nwabueze that afternoon was whether or when he hoped to write the lost chapter. Nearly a decade and half had passed already at the time of our meeting since the publication of the book, more than enough time for a second edition in the ordinary course of things but for his preoccupation with constitutional law since after the publication of the book. Nonetheless, he firmly assured me that he would get round to write the chapter sometime. He never did. Nor does any of his books have a second edition.
II. The Public Intellectual
The academic who aspires to play the role of public intellectual, according to Richard Posner, will need communication skills and authority. “Specialization makes it difficult to write for a general audience. His orientation is towards writing for his fellow specialists on narrow topics in an esoteric jargon. For jargon is the natural language when people communicate primarily with members of an in-group.” Nwabueze’s works were very readable and always appear to be written for a general audience than as specialist works, and he probably always intended them to be so. For that reason, he captivated an audience far wider than his specialization of law and government. He vigorously pushed his views publicly at almost every opportunity from the mid-1960s until only a few years ago through frequent public lectures and speeches, books and essays, newspaper articles and interviews, and above all, active participation in constitutional reform and constitution-writing.
“The public intellectual is a social critic rather than merely a social observer,” Posner reminds us. The evolution of Nwbueze from a mainstream and highly influential constitutional technocrat whose services were widely sought within and outside Nigeria to write constitutions to the later-day less influential advocacy of radical constitutional reform is telling. He was one of the principal authors of the 1979 Constitution, being a leading member of both the Constitution Drafting Committee and the Constituent Assembly, respectively. (The present 1999 Constitution largely replicates that constitution.) He wrote several books in the 1980s expounding the different aspects of the 1979 Constitution, including his widely read Federalism in Nigeria under the Presidential Constitution (1983). His books were frequently cited in court decisions and lawyers’ briefs of argument. However, from the mid to late 1990s, he started having second thoughts about the constitutional changes he championed previously. He turned to advocacy of radical constitutional changes, including a repeal of the 1999 Constitution by the National Assembly, a drastic restructuring of Nigeria’s federal system and the revenue collection and distribution regime, a national conference complemented with plebiscitary adoption of a new constitution, and even a sovereign national conference. Being conscious of his own mortality, there was heightened urgency in his tone with every year, and his impatience grew. This period coincided with his leadership of advocacy groups such as The Patriots, The Southern Leaders of Thought, and Project Nigeria (The Save Nigeria Project) among others.
III. His Scholarship
Before he was a public intellectual, he was a scholar. And being a scholar was always what he wanted to be. “When I graduated LL.B. from the University of London in 1959 and was subsequently called to the Bar in England in the same year,” he recalled, “private practice as a barrister and solicitor was never in my thought. What was constantly in my mind and thought was a life of study and reflection as an academic.” He distinguished himself as a student, both at the London School of Economics and Political Science, where he completed his LL.B. and LL.M. degrees, and the bar examination, respectively. He was commended by one of his teachers, the eminent English constitutionalist Professor Stanley Alexander de Smith FBA (1922-1974) for being the student who “scored the highest mark ever awarded by the University of London in the LL.M. Examinations in the constitutional law of the Commonwealth,” a course that Professor de Smith newly introduced at the university. Nwabueze’s career as an academic began at the University of Lagos in 1962. Before then, his only teaching experience was one year teaching LL.B. students at the Holborn College of Law. In addition, he previously had another one-year experience as a secondary school mathematics teacher in Eastern Nigeria during 1955-1956. After completing his LL.M., he registered for a PhD at the School of Oriental and African Studies of the University of London in 1961with the expectation to work on a dissertation on “The Position of Chiefs under the Laws of Eastern Nigeria” with Professor Tony Allot as his supervisor.
He never completed the PhD. Because the following year, he was recruited by former teacher and dean of law at the London School of Economics, Professor Gower to teach at the University of Lagos, where the professor had been appointed to establish a faculty of law. Thus, Nwabueze was among the foundation lecturers of the University of Lagos.
Indeed, when lectures began at the new university, at its temporary site at Idi-Araba, on October 4, 1962, he recalled that he was “one of the lecturers to deliver the first lectures in the university on that historic day.” As there were little or no local textbooks available for teaching, these pioneers had the urgent task of producing textbooks for courses they taught. Nwabueze’s teaching assignments were Nigerian Legal System, Constitutional Law, and Land Law. He immediately started working on producing textbooks for each of these courses. He published his Machinery of Justice in Nigeria the following year, 1963, and Constitutional Law of the Nigerian Republic a year later. Both were substantial works of high quality. He started work on his Nigerian Land Law, but it was interrupted by the Civil War. It was finally published after the war (1972). He was able to achieve this feat by a single-minded commitment. “I knew of no other life than teaching, study, reflection and writing – no going to parties, night clubs or playing games, no running after women.” He recalled. Several years ago, I got a confirmation of this from the late Professor Cyprian Okonkwo, who occupied the ground floor flat of the building in Surulere where Nwabueze lived in an upper floor flat. Professor Okonkwo recalled that light was almost always on in Nwabueze’s study every night.
Nwabueze’s career at the University of Lagos ended abruptly with the closure of the University in 1965 in the wake of the Eni Njoku-Biobaku crisis, which resulted in the departure of all lecturers and students of Eastern Region origin from the University for the University of Nigeria. At the end of the Civil War, he left for the University of Zambia only to return to the University of Nigeria in 1975 but quickly retired. He was only 44 years old. While some of his greatest works were already published, he would live for nearly a half century longer, during which he produced three times as many books as he did as a university teacher.
Nwabueze published a total of about two dozen titles including a few multi-volume books. Yet, his greatest work may be among the half dozen titles he published by 1975. He felt Nigerian Land Law was “considered by many as the most scholarly of my works.” But he personally judged his more recent two-volume Colonialism in Africa: Ancient and Modern (2005) “the best of my books.” The reason why the former is so highly rated is obvious. Land law is a terror to many a law student, especially the abstruse labyrinths of the English tenure system and estates. The mastery demonstrated by the author and his clarity of presentation justified the deep impression created by Nigerian Land Law. For me, however, his greatest published work was not one book but the trilogy published between 1973 and 1977: Constitutionalism in the Emergent States, Presidentialism in Commonwealth Africa, and Judicialism in Commonwealth Africa. The three “ISMs.’ These three are truly, in my opinion, his magnum opus. According to the wisdom of Francis Bacon, “some books are to be tasted, others to be swallowed, and some to be chewed and digested.” This set of books left a permanent impression on me and they remain my companion and are never far from me. For many years, I even thought Nwabueze coined the word “judicialism” because it is not a dictionary word, until I later found at least one earlier usage, by the German American political scientist Carl Joachim Friedrich nearly a decade before the appearance of Nwabueze’s work. For such a painstakingly scholarly work, it is a bit curious to learn from the author that the books “were the products of an anguished feeling of grievance” over his treatment by Nigerian security forces immediately after the war. “Fired by that feeling,” he wrote, “I worked day and night to finish the three books.” It took him just five years, 1970-1975. Without doubt, this work established his global reputation as a constitutional lawyer and defined his future trajectory as a specialist. Before these books, he had only one major publication in the field, a textbook, from a decade earlier! It is hardly a surprise then that it was for this trilogy that the University of London awarded him the higher doctorate, LL.D. for published works, only the second African, after the great Taslim Elias, to have obtained that degree by publications, a fitting validation for a brilliant student who because he walked away from his PhD programme in 1962, did not own a doctoral dissertation.
IV. His Regrets and Controversies
Hindsight is the curse of constitution makers almost everywhere. Seldom is the genius of James Madison, whose United States Constitution retains its global admiration after two centuries, or the genius of Hans Kelsen, whose Austrian Constitution of 1920 is still admired. Nigeria’s present Constitution has been much criticized for its adequacies, and Nwabueze was one of the principal authors of the Constitution of 1979, which the present Constitution closely replicates. What is peculiar about the critique is that Nwabueze was among the leading critics. This was not simply self-criticism but a total disavowal of his previous position, root and branch. “Quite frankly, there are many flaws and many errors in the content of the Constitution,” he told Vanguard newspaper on March 22, 2013. Prominent among these flaws and errors are the centralized federal system and the concentration in the centre of control over the management and distribution of revenue sources. “We took away 50 percent of the items on the Concurrent List and gave it to the centre …[and] we destroyed what is called fiscal federalism.”
As Justice Udo Udoma, Chairman of the Constituent Assembly and others made clear, a concurrent legislative list however long is potentially an exclusive federal list because of the supremacy of federal legislation. This is one of the clearest principles of federalism. Kenneth C. Wheare’s celebrated monograph on the subject (4th edn., 1963) put it thus, “It is well to emphasize at once that the existence of a concurrent jurisdiction in some matters is not necessarily incompatible with the federal principle. But if there is a concurrent jurisdiction, there must exist also some provision to determine which authority, in case of conflict, is to prevail. That authority will possess, in my opinion, potential though not actual exclusive jurisdiction. It has the power to bring the subject in question under its exclusive control to the extent that it chooses to regulate it.” Moreover, centralization or decentralization of federations depends more on structural factors than on the distribution of powers, important as that may be. For example, where there are many federating units, they are less likely to be as strong relative to the centre as where there are only a few units. On the other hand, when, as with Nigeria before 1966, one federating unit was larger in size twice over than the remainder combined and having half of the population of the country, the federating units are likely to be strong relative to the central government because of this asymmetry. Such a federation, as the English philosopher and jurist John Stuart Mill observed, is vulnerable to failure.
It is not obvious how much Nwabueze’s “mistakes” really matter. Except for the fact that he was his own strongest critic. He came to strongly believe that the constitutional reform he successfully championed previously was a mistake that must be reversed. Perhaps the only major part of the constitutional structure he helped midwife during 1975-1978 he remained assured of was presidentialism. He was resolute that the presidential system was preferable, for Africans at least, than the plural executive (cabinet) of the parliamentary system.
He also regretted serving on President Babangida’s Transition Council, although he was proud of what he accomplished as Education Secretary during the eight-months life of the Council. It is difficult to justify the country’s leading constitutionalist participating in an organ of a military dictatorship designed to prolong transition to democratic rule. If that was not bad enough, his tenure was tumultuous, and will be remembered mostly for his confrontation with ASUU. This was unfortunate for many reasons including the fact that early in his academic career, Nwabueze was union man, as Secretary of the Association of University Teachers (precursor of ASUU) at the University of Lagos. He realized this error. “Let me say that the nagging doubt as to whether I did the right thing in accepting the appointment still persists and is made sometimes agonizing and tormenting by my bash with the university teachers.” (Autobiography 2: 245)
Nwabueze scrupulously avoided partisan politics throughout his life. “I have always kept an unwavering aloofness from politics, because it (politics) seems to me not quite in tune with the life of study and reflection I have chosen for myself …. Politics is much too boisterous and noisy an occupation to be, in my view, compatible with a life of study and reflection.” (2: 180) Yet, that November 14, 2018 iconic image of the octogenarian Nwabueze weeping on the shoulder of Atiku Abubakar, PDP’s presidential candidate for the 2019 election, will be hard to forget. This more so when, seven moths later, though he ceased appearing before any court as a lawyer in 2008, wheelchair-bound, he showed up at the Presidential Election Petition Tribunal on July 4, 2019 as the lead counsel for the petitioner, Mr. Abubakar. But he was there for only briefly, during which he requested and got leave of the court to address it while remaining seated. He spoke for only a few minutes, and he left the court riding into the sunset.
V. Final Words
Nwabueze has rightly indisputably taken his place as among Africa’s greatest constitutionalists. He was a comparativist, and his strength was comparative constitutional law. He was not a theorist, and he did not make any contribution to constitutional theory or political theory. His forte was constitutional statics. He identified and explained rules of the constitutional order. He said little about constitutional dynamics or how a constitutional order actually operated. That field is claimed today mostly by political scientists. Nwabueze made one attempt to bridge the respective fields of the constitutional lawyer and the political scientist. The methodology applied in Presidentialism, he said, was “the need to blend rules with practice .… It is two-dimensional, combining the analysis of rules with an inquiry into practice and the political and social forces that condition it.” Unfortunately, he didn’t apply this method in his subsequent works.
Nwabueze’s weakness in legal theory is evident, for example, in his use of the problematic application of the German concept of Stufenbaulehre (doctrine of the hierarchical structure of the legal order) as applied by Hans Kelsen’s pure theory of law. Even on Kelsen’s terms, Nwabueze clearly misunderstood Kelsen’s theory of a disruptive change of the Grundnorm (basis norm), from which every norm in the legal system supposedly derives its ultimate validity. Because as Kelsen elucidated the concept, the Grundnorm is not a positive norm (such as an actual constitution) but a juristic presupposition or assumption (a transcendental-logical function). As a result of this misunderstanding (which was widespread in the English-speaking world), Nwabueze did not give sufficient credit to the Supreme Court of Nigeria’s landmark 1970 decision Lakanmi v. Attorney General.
Nor was Nwabueze, despite his prodigious output, necessarily an original thinker. I even doubt if he intended to be one. He was richly eclectic for sure. His strength lay in his ability to master a subject and render it in a manner that was capable of being quickly understood by a student or a non-specialist. And although he exuded great learning, he was always quick to admit or acknowledge the impact of his teachers or the debt he owed other authors he read. For example, he gave the credit for his mastery of constitutional law to his fortune to have been taught by Professor de Smith, whose LL.M. course “gave me a solid foundation in the subject, which proved exceptionally rewarding and helpful in my future work in constitutional law.” Again, he attributed his mastery of English land tenure and estate system to his LL.B. Conveyancing class. “My study of Conveyancing under Professor James enabled me to deepen my knowledge of English land law, with its abstruse and teasing principles and concepts, and laid the foundation for my book, Nigerian Land Law.”
Such was the man Benjamin Obiefuna Nwabueze, the greatest of his generation. A man of humble birth whose illiterate parents had no record of the year of his birth but who by a lifetime quest to excel put his God-given capacity to master things arcane and render them for easy understanding, to the betterment of his country and of humanity has fallen asleep. But his reputation as a scholar and public intellectual will long survive him. The market for public intellectuals is much poorer with his demise.
· Ukhuegbe writes from Toronto, Canada
