By Aare Afe Babalola, SAN,CON,OFR
The Deputy Senate President, Ovie Omo Agege, was recently reported to have stated that the National Assembly has no power to replace the 1999 Constitution and that those calling for its overhaul should channel their demands for a new constitution towards constitutional amendment.
Expectedly, this generated responses from stakeholders, particularly those who have strongly advocated for a repeal of the 1999 Constitution. Therefore, I intend to look into the legal framework in Nigeria and whether the National Assembly is truly helpless in the process of enacting a new Constitution for Nigeria.
Laws change to fit changing human circumstances and needs: It is a cardinal principle of human existence that law is made for the man; and not man for the law. Even the Lord Jesus Christ noted, in Mark 2:27 that “The Sabbath was made for man, and not man for the Sabbath”, despite the sacrosanct nature of the Sabbath for the Jews. This consideration, perhaps, has been the ultimate factor for countries to enact new laws or create an entirely new political structure which conforms to their present-day realities.
In the United Kingdom, the Act of Parliament (which is the primary legislation passed by the UK Parliament) permits the conduct of referendums for major constitutional issues, such as Brexit, in which a referendum was conducted in 2016 to determine the withdrawal of the UK from the European Union and the European Atomic Energy Community. Majority of UK citizens voted in favour of Brexit and despite the daunting process, it eventually came into effect in January 2020 with the passing of the European Union (Withdrawal Agreement) Act, 2020.
Likewise, in Senegal, the legislature which was initially bicameral was reformed to become a unicameral legislature when the Senate was abolished in 2012. The contention of the Deputy Senate President that the National Assembly has no powers to create a new Constitution for Nigeria does not truly reflect the provisions of the Constitution. I believe that under the present Constitution, the National Assembly has the inherent powers to make a new Constitution to govern Nigeria.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) creates an air of legitimacy when, by its preamble, it stated that “We the People… do hereby make and give ourselves the following Constitution”. Ironically, this Constitution is not a product of the deliberation of Nigerians either by constituent assembly or a referendum. In fact, a learned author, Nsongurua Udombana, LL.D once remarked thus:
“The 1999 Constitution has the imprint of authoritarianism written all over it, with no consideration to the genuine desires of the Nigerian people. There was not even the civility of a Constituent Assembly, let alone a referendum, thereby making the “We the people” in the preamble a lie and fraud. It is an illegitimate document and will remain so notwithstanding the number of amendments, though it may make for a good POL 101 Course on ‘The Making of an Undemocratic Constitution.’
“We should never confuse the validity of a constitution with its legitimacy. Validity addresses the question of legality. Decree 24 of 1999 took care of that, which is why the Constitution is justiciable before Nigerian courts. However, legitimacy addresses the question of acceptability, which is a function of the conscious or deliberate participation of the people in the Constitution-making process.”
The evolution of constitutions in Nigeria: Nigeria is a product of a myriad of constitutions, altogether having had nine constitutions – six in the pre-independence epoch (1914, 1922, 1946, 1951, 1954 and 1960) and three after independence (1963, 1979 and 1999). The making of the pre-independence Constitutions was by an order-in-council of the British monarch, while the post-independence Constitutions were enacted in two ways: an Act of parliament (1963 Constitution) and military decree (1979 and 1999).
Under the 1914 Constitution, the Northern and Southern Protectorates were amalgamated under the colonial authority of the British monarch and administered through the Governor-General, Lord Frederick Lugard. This Constitution created a Legislative Council for the colony to make laws for the Colony of Lagos alone, while the Governor-General made laws for the rest of the country.
In 1922, eight years after the first Constitution, the 1922 (Clifford) Constitution was enacted. This Constitution established a 46-member Legislative Council to make laws for the Colony of Lagos and the Southern Provinces. In addition, this Constitution introduced the British African territory and permitted Lagos and Calabar to elect their representatives into the Legislative Council.
In 1922, after twenty-four years, 1946 (Richard) Constitution came into force after the Second World War. For the first time, Nigeria was divided into regions: the Northern, Western and Eastern Regions. Returning African veterans from the Second World War who were conscripted to fight for the British came back with a deeper understanding of self-governance and sovereignty. Generally, the 1946 Constitution established a framework for the participation of all sections of Nigeria in the legislative process, thereby guaranteeing a majority for indigenous Nigerians both in the House of Assembly and legislative council.
Again, after five years, the 1951 (Macpherson) Constitution was enacted as a by-product of an unprecedented process of consultation with Nigerians. The process leading to the making of this Constitution involved Village, District, Divisional, Provincial and Regional meetings and consultations – before the national conference. For the first time, the federal system of government was established and the presence of African elected majorities in the Central Legislature and in the Regional Houses of Assembly.
In 1954, after three years, the 1954 (Lyttleton) Constitution was enacted. This Constitution made the regional governments independent of the central government and also established a unicameral legislature for the federal government and for each of the three regional governments. This Constitution made Lagos the Federal Capital Territory and established regional public services for the regions. Under this Constitution, Ministers were given specific portfolios for the first time.
Nigeria gained political independence in 1960 and the 1960 Constitution was enacted to establish a parliamentary system of government. It equally established a bicameral legislature (Senate and the House of Representatives), as well as a House of Assembly and House of Chiefs at the regions. Legislative powers of the government were, for the first time, delineated into three categories, i.e. the exclusive, concurrent and residual.
This parliamentary Constitution recognised the British monarch as the Head of State while the Prime Minister was elected by the federal parliament to act as the head of the Federal Executive Council. However, the main challenge with this Constitution was that a Governor-General was designated as a representative of the British monarch, instead of the establishment of a Constitution which represented the independent status of Nigeria.
In addition, it denied Nigeria an effective dominion over its judiciary as the Privy Council established by the British Queen was given the final appellate authority instead of the Federal Supreme Court.
The 1963 Constitution birthed the establishment of Nigeria’s first Republic under a parliamentary system of government. It replaced the Governor-General appointed by the British monarch with a President elected directly by members of the Nigerian federal legislature. Also, it replaced the Privy Council and conferred final appellate powers on the Federal Supreme Court.
A violent military coup in 1966 however set aside this Constitution. The first Republic was ousted by the military dictatorship which lasted for 13 years, ending in 1979. General Olusegun Obasanjo ushered in the Second Republic with the promulgation of a new Constitution, the 1979 Constitution. Under the 1979 Constitution, a federal system of government was again set up comprising of 19 state governments, a Federal Capital Territory, and three arms of government.
The civilian administration of President Shehu Shagari with Vice President Alex Ekwueme who operated under the 1979 Constitution was toppled in 1983 by the military dictatorship of Generals Muhammed Buhari and Tunde Idiagbon. After a series of other regimes – the Babangida military dictatorship (1985-1993), the Shonekan Interim civilian regime, the Abacha military dictatorship (1993-1998) – the final General Abdulsalami Abubakar military regime ushered in another Republic on May 29, 1999 with the enactment of the 1999 Constitution which still operates till today.
One thing is clear – since the amalgamation of Nigeria in 1914, not one constitution had been too sacrosanct to change. Likewise, the Constitution of the Federal Republic of Nigeria in 1999 is not too sacrosanct to change. As a matter of fact, the present Constitution is not working anymore.
In a recent newspaper publication captioned Afe Babalola Seeks New Constitution for Nigeria to Overcome Challenges, I noted as follows: There is a very simple solution to the growing insecurity in the country and that is a new constitution.
We need a new constitution where the different nations that were formed together can develop at their own pace. West was doing well during the old constitution, likewise the East and even the North but the one we are using now whose leaders see politics as the only lucrative business.
We don’t need transactional leaders anymore. We want transformational leaders as you can see I am transforming this place. In the early years in 1960 people were not earning salaries but allowances and they were doing well but now you see people selling their property to contest the election because of money they will get in the office, that is not the ideal thing. The solution is a new constitution for the people. We need people who will serve without earning salaries.