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NIGERIA’S CONSTITUTION-MAKING EXPERIENCE SINCE 1914: AN EVALUATION

Conference Paper · January 2014

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 NIGERIA’S CONSTITUTION-MAKING EXPERIENCE SINCE 1914:
AN EVALUATION

1. Introduction

The importance of a people’s constitution cannot be over-emphasized. It has been recognized in

Kelsen’s theory as the grundnorm from which all other laws within a state derive their validity. It

is considered very important in generating a feeling of belonging and attachment to a political

community especially in the community’s formative years. It also genders mutual empathy or

communal identification. It ought to provide a legitimate process for the exercise of public power

and a stable order within which political decisions are made.1

A constitution regulates the exercise of political power as well as the relationship between

political institutions and between the state and the citizens. In its position as the grundnorm and

the supreme law of the land, it helps to shape the organization and development of the society for

the present and future generations. It also sets objective standards for judging the government’s

performance either by the citizens or the international community. It sets out the rights and duties

of the citizens and provides legal protection for their legitimate interests.2

According to Hatchard, a constitution can contribute to the development of a politically active

civil society as well as promoting good governance, accountability and the rule of law.3

A constitution is defined by the Black’s Law Dictionary4 as the fundamental and organic law of a

nation or state that establishes the institutions and apparatus of government, defines the scope of

1
Ebere Nwaubani, "Constitution-Making and the Nigerian Identity, 1914 - 1960” in A. Oyebade (ed.) The
Transformation of Nigeria: Essays in Honor of Toyin Falola (Asmara, Eritrea, and Trenton, New Jersey: Africa
World Press, 2002) pp. 73 – 112 at 74.
2
A.K.D. Frempong, “Ghana at Fifty: Government, Politics and Development” paper delivered at the golden Jubilee
Colloquium of the Department of Political Science, University of Ghana from 1 - 2 March 2007.
3
J. Hatchard, “Perfecting Imperfections: Developing Procedures for Amending Constitutions in Commonwealth
Africa,” The Journal of Modern African Studies, Vol. 36, No.3, September 1998, pp. 381 – 398 at 381.
4
B.A Garner, (ed.) Blacks Law Dictionary, 8th ed. (St. Paul, Minn.: West Group, 2004) p. p. 330
governmental sovereign powers, and guarantees individual civil rights and civil liberties. It is

also a written instrument embodying this fundamental law, together with any formal

amendments.

Professor Ben Nwabueze defines a constitution as “the frame or composition of a government,

the way in which a government is actually structured in terms of its organs, the distribution of

power within it, the relations of the organs inter se and the procedure of exercising power5 or

alternatively “a formal document having the force of law, by which a society organizes a

government for itself, defines and limits its powers, prescribed the relations of its various organs

inter se and with the citizen.”6

Street and Brazier see the constitution as “rules which set out the framework of government,

postulates how it ought to operate and makes declarations about the purposes of the state and the

society and the rights and duties of citizens…”7

Going by the definitions, it is abundantly clear that a constitution serves multiple functions and it

is indispensable in a community’s life. The theoretical framework for constitutionalism can be

traced back to John Locke’s “social contract” theory which advocated a separation of powers

within the social compact from which a government was created to protect the natural rights.

‘The General Will’ theory of Jean Jacques Rousseau also provided theoretical fodder for

constitutionalism by requiring that there be popular participation in constitution making.

Consequently the process by which a constitution is formed is equally very important. According

to Alexander Frempong, “Constitution-making entails consensus-building, and if handled with

5
B. O. Nwabueze, Ideas and Facts in Constitution Making (Ibadan: Spectrum, 1993) p.1
6
B. O. Nwabueze,, Constitutionalism in the Emergent States(London: Hurs and Co, 1973)
7
H. Street and R. Brazier (eds), De Smith Constitutional and Administrative Law, 4th ed. London:
Penguin/Longmans, 1981) p.16
care and tact, the process can result in a constitution that every citizen could defend with pride” 8

Kwesi Jonah also reinforces this view when he writes that the way a constitution is crafted can

secure essential political compromises between opposing political interests, eliminate mutual

suspicions and instill confidence in each other.9

Nigeria, since its creation in 1914 with the amalgamation of the Northern and Southern

protectorates, has experimented with eight different constitutions. 10 This constant change of our

constitution reveals dissatisfaction with the constitution both in terms of its contents as well as

the process by which the constitution was produced. Taiwo Osipitan confirming this, observed

that, “a silver thread which runs through Nigeria’s ninety years of constitution making, is the

perpetual search for a constitution that will satisfy the aspirations of political elites, ensure peace,

order and good government and promote the unity and the welfare of Nigerians” 11

This dissatisfaction in the past was made manifest by the continuous agitation for a Sovereign

National Conference which should re-examine and re-negotiate the terms of Nigeria’s corporate

existence. This search has finally culminated in the convening of a constitutional conference by

the Goodluck Jonathan administration in 2014.

In this paper, we will outline the constitutional history of Nigeria since 1914, identifying any

flaw in the process that led to the final document, with a view to evaluating our constitutional

making experience in the light of more successful and accepted constitutions all over the world.

8
Frempong, loc. cit.
9
K. Jonah, “The Monopolisation and Manipulation of the Constitutional-Making Process in Ghana” in K. A. Ninsin
and F.K. Drah, (eds.) Ghana’s Transition to Constitutional Rule (Accra: Ghana University Press, 1991), p. 77, et
seq.
10
These are Clifford’s Constitution 1922, Richard’s Constitution 1946, Macpherson’s Constitution 1951, Lyttleton’s
Constitution 1953, Independence Constitution 1960, Republican Constitution 1963, 1979 Constitution, 1999
Constitution.
11
T. Osipitan, An Autochthonous Constitution for Nigeria: Myth or Reality? University of Lagos Inaugural Lecture
Series (Lagos: University of Lagos Press, 2004) p. 5.
We will in the process of doing this, compare our constitution making experience with that of

other select jurisdictions and see what valuable lessons we may learn from the comparative

approach.

2. Nigeria’s Constitutional History

2.1 Lugard’s Constitution 1914

The Amalgamation of Nigeria was achieved under three legal instruments in 1914.12Under the

amalgamation Constitution, the jurisdiction of the Legislative Council which prior to the

constitution covered all of southern Nigeria was restricted to the Lagos Colony. 13 The power of

the Governor of the colony was extended to cover the Protectorate and he was given the title of

Governor-General and Commander-in-Chief, 14 with power to make laws for the Protectorate.15 It

also established a Nigerian Council which was a purely advisory and deliberative body which

was set up for consultation purposes to ensure that local opinion and opinion of the commercial

and mining firms and sufficiently experienced and able public officers were consulted for the

purpose of law making.16

The Nigerian Council was made up of 30 members, 17 of who were officials in strategic

government departments and were all Britons, while 13 were unofficial members appointed by

the Governor.17

12
The (Nigerian Council) Order-in Council 1912); The Nigeria Protectorate Order-in-Council 1913; and Letters
Patent of 1913.
13
Article 7 of the Letters Patent of 29 November, 1913.
14
Article 4 Nigeria Protectorate Order-In-Council
15
Article 8, ibid.
16
B.O. Igwenyi, Modern Constitutional Law in Nigeria (Abakiliki, Nwamazi Printing & Publication Company Ltd.
2006) p.136 .
17
Ibid.
By virtue of article 17 of the Order-in-Council, “no resolution passed by the Council shall have

any legislative or executive authority and the Governor shall not be required to give effect

thereto”. It was therefore merely an advisory body as their resolutions could not take effect

unless it was ratified by the Governor- General.

This Council has been criticized on the basis that it was dominated by official members who

were not Africans and therefore was not a representative body. Even those Africans that were

later allowed to participate were not only repatriates but also nominees of the governor. Even the

addition of the traditional chiefs in the council was ineffective as they were not able to

participate in the proceedings as a result of language barriers. 18

The constitution also established an Executive Council made up of the Governor and 10 other

officials with the function of advising the Governor when its advice was requested.19

The Constitution was in operation until 1922, with minor amendments made to it in 1917.20

2.2 Clifford’s Constitution 1922

In 1922, Sir Hugh Clifford introduced a constitution which substituted the Nigerian Council with

a new legislative body called the “Legislative Council of Nigeria”21 whose jurisdiction would

cover the whole south while the North would be governed by the governor’s proclamation. 22

The northern and southern provinces were to be regarded as a single political unit for fiscal and

budgetary purposes and all legislation of the legislative council relating to custom and excise

duties as well as criminal law were made applicable to the North. The legislative council,
18
African Heritage “History of Constitution Development in Nigeria, An Overview”
http://shinaalimi.blogspot.com/2012/10/history-of-constitutional-development.html accessed 22/6/14
19
Article 6 Letters Patent of 1913 for the colony and article 7 of Nigeria Protectorate Order-In-Council 1913
20
Igwenyi, op.cit p.137
21
Article 3 of the Nigeria (Legislative Council) Order-In-Council 1922 and article 8 of the Nigeria Protectorate
Order-In-Council 1922 (for the protectorate) and article 6 of the Letters Patent 1922 (for the colony)
22
Article 10 Protectorate Order-In-Council 1922, see also T.N. Tamuno, “Governor Clifford and Representative
Government” Journal of Historical Society of Nigeria, Vol. IV, No1. 1967 p. 120.
however could not discuss bills “of any description pertaining to the North without the express

concurrence of the government”23

The Clifford’s Constitution brought in a landmark in that it brought in elected members in the

legislative council and thus introduced the elective principle in Nigeria. Out of the 46 members

of the Legislative Council (the governor and 26 official members, 4 elected members and 15

unofficial members), the 4 unofficial members were elected through male adult franchise. Three

were elected from Lagos and one from Calabar. It also established an Executive Council24 of 13

persons (the Governor, 9 officials and 3 unofficial members) whose function was to advise the

Governor. It was composed of non-African members until after 1943 when the first 2 unofficial

Africans were appointed into the Council. 25

2.3 Richards Constitution 1946

Agitations for self-government or more participation in government by some of the learned

sections of the country precipitated the next constitutional development in 1946. This agitation

led the then governor of Nigeria to publish a constitutional proposal before the end of December

1944. It was initially prepared by Governor Bourdillion without full consultation with the people,

but was improved on by Arthur Richards who succeeded Governor Bourdillion. 26

A new Legislative Council was established with power to make laws for the North and South.27

The Legislative Council was made up of the Governor, 16 official members and 28 unofficial

members, 24 of whom were nominated by the governor and the remaining 4 were elected. The

north was represented by 2 official members and 9 unofficial members. The west was

23
Rules and Orders of the Legislative Council of Nigeria (Lagos: Government printer, 1924), article 41(c) and (g)
24
Article 5 Letters Patent 1922.
25
D.O. Okonkwo, History of Nigeria in a New Setting (Aba: The International Press., 1962) p. 211.
26
Igwenyi, op.cit., p.140.
27
Section 4 of Nigeria (Legislative Council) Order-In-Council 1946.
represented by 2 official members and six unofficial members, while the east was represented by

2 official members and five unofficial members. 28

The constitution introduced regionalism in Nigeria. It introduced three Regional Councils which

for the north was bicameral (House of Assembly and House of Chiefs) and for the western and

eastern region consisted of a unicameral house of assembly.

The introduction of these Regional Councils was an advance in the effort to bring the

government closer to the people.

The Richard’s Constitution marked the end of the Governor’s constitutions, which were drafted

by the Governors. The process for producing these constitutions was identical and did not in any

way take into consideration the wish of the people.

For the 1946 constitution, the governor merely drafted his constitutional proposals for the review

of the 1922 constitution. These proposals were embodied in white paper published in the U.K

and in Nigeria and were submitted to the legislative council for approval. They then finally

received parliamentary approval. 29

2.4 Macpherson Constitution 1951

Recommendations on a proposed new constitution were made by a select committee of the

Legislative Council in March 1949. This was followed by a wide consultation which extended

even to the village level. 30The consultation was followed by an all Nigerian Constitutional

Conference in January 1950. Part of the agreements reached at the conference was the

transformation of the 3 regions from administrative to political regions with the establishment of

28
Okonkwo, op.cit., p. 255.
29
A. Ojo, Constitutional Law and Military Rue in Nigeria (Ibadan: Evans Nigeria Publishers Ltd, 1987) p. 62.
30
G.O. Olusanya, “Constitutional Development in Nigeria, 1861-1960” in O. Ikime (ed.) Groundwork of Nigerian
History (Ibadan: Heinemann Publishers, 1980) p. 530.
regional legislatures, and the acceptance of the federal system of government.31 The constitution

came into effect in 1951.

Macpherson made a serious attempt to address the problem of non-consultation. In the process of

making the 1951 constitution, public opinion was consulted through regional, divisional and

provincial conferences. The reports of the conference were considered at a general conference.

The report of the general conference was then finally debated in the regional houses and the

Legislative Council before a final document was submitted to the Governor-General and

Secretary of State for the Colonies for their approval. 32

The British parliament was still the legal authority for the 1951 constitution as it was the British

parliament that passed the enabling law for it to become a binding document. It has however

been held to be a “people’s constitution” despite the colonial setting, because of the elaborate or

democratic process and discussion it passed through.33 The establishment of regional

legislatures invariably led to the emergence of ethnic-based parties such as the National Council

of Nigerians and the Cameroons (NCNC) Action Group (AG) and the Northern Peoples

Congress (NPC). Despite the fact the Macpherson Constitution represented a major

constitutional advance, yet it was unsatisfactory to Nigerian nationalists who vigorously

campaigned for its sack.34

The common feature of the four imperial constitutions we have discussed is that they were

processed by the colonialists and were therefore not autochthonous. The people of Nigeria and

31
African Heritage, loc. cit.
32
K. Ezera, Constitutional Developments in Nigeria (Cambridge: Cambridge University Press, 1964) pp. 105 – 112.
33
Ojo, op.cit., p..63.
34
S. O. Aghalino, “Dynamics of Constitutional Development in Nigeria, 1914-1999” Indian Journal of Politics,
Vol. XL, No. 2 & 3, April – September, 2006, pp. 49 – 62 at 53.
their representatives were not consulted in their production. In the other instances where the

people’s elected representatives participated in the constitution making process, they were still

joined by selected government nominees. The legal source of authority for these constitutions

was the British parliament.

4.5 Lyttleton’s Constitution 1954

Problems associated with the Macpherson’s constitution and its practical administration led to

the Kano riot of 1953 and the threat of secession by the North. This led to a London Conference

which agreed to review the Macpherson’s Constitution. There was a series of such conferences at

Lagos and Ibadan between 1953 and 1954. At the end of the deliberations, the conference

granted self government to the western and the eastern region which desired it and Lagos became

the federal territory.35

The 1954 constitution was the product of a constitutional conference which was organized along

party lines with nominees of political parties monopolizing the conference. This was in contrast

to the 1951 Constitution that involved consultation of the people and their representatives. The

legal source of authority was the British parliament.

2.6 Independence Constitution of 1960

The 1960 constitution was also preceded by various constitutional conferences organized along

party lines with selected representatives of political parties as members. By section 11(2)(a) of

Independence Constitution Act, the UK government ceased to have responsibility for the

government of Nigeria or any part of Nigeria. However the Queen of England still remained the

Queen of Nigeria and the Head of Government. Her powers were exercised through the

35
African Heritage, loc. cit.
Governor-General and Regional Governors at the federal and regional levels respectively.

Appeals from the Federal Supreme Court went to the Judicial Committee of the Privy Council.

The legal source of the constitution was still the British Parliament as it was enacted into law by

the British Parliament. As such it does not strictly qualify as an autochthonous constitution.

2.7 Republican Constitution of 1963

The arrangement under the 1960 Constitution in which the Queen of England remained the

Queen of Nigeria and Head of her Government as well as allowing appeals to the Judicial

Committee of the Privy Council as the final authority did not augur well for Nigeria’s status as

an independent nation. This therefore led to the convening of an all party constitutional review

conference to give practical effect to Nigeria’s independence.

The conference was dominated by selected representatives of political parties and its decisions

formed the cornerstone for the 1963 Constitution. This constitution gave Nigeria a republican

status. Also under this constitution the Queen of England ceased to be the queen of Nigeria,

appeals to the Privy Council were abolished and the Nigerian Supreme Court became the highest

court for Nigeria. This constitution was not processed by the elected representatives of the

people and there was neither a constitution drafting committee nor a constituent assembly to

draft the constitution.

Chief Bola Ige commented on the 1963 constitution thus

“This constitution is one of those we have had since independence. None of them was
initiated or drafted under a genuinely democratic environment. This particular one
was conceived in bad faith. Its gestation and birth broke all rules for constitution
making. There was no Committee which collected and drafted the proposals to be
included in the constitution. There was no Constituent Assembly which deliberated
on and produced the constitution. There was no referendum through which “WE THE
PEOPLE” could express our approval or disapproval”36

36
Bola Ige, Constitution and the Problems of Nigeria (Lagos: Nigerian Institute of Advanced Legal Studies, 1995)
p.23.
2.8 1979 Constitution

The process towards the enactment of the 1979 Constitution began in October 1975 with the

appointment and inauguration of the members of the Constitution Drafting Committee (CDC).

There were 50 members but Chief Obafemi Awolowo declined to participate and thus there were

left only 49 members dubbed the “49 wise men”, led by Chief F.R.A Williams (S.A.N). The

Constitution Drafting Committee produced an initial draft constitution reflecting the views

expressed by individuals, interested bodies and organizations. The recommendations were

publicly debated before being forwarded to the Constituent Assembly who deliberated on the

draft constitution, made minor amendments to it before forwarding it to the Supreme Military

Council.

The Supreme Military Council while accepting most of the recommendations of the Constituent

Assembly, tampered with the provisions by inserting some decrees into the final constitution.37

This was to have the effect of making the amendment or repeal of these decrees impossible

unless the rigid constitutional requirements for amendment are complied with.

The 49 members of the CDC were not elected representatives of the people and the Constituent

Assembly consisted of elected and selected members. The elected members of the Constituent

Assembly were chosen through elections by Electoral College members made up of Local

Government council chairmen and members who themselves were not elected representatives of

the people.

The report of the Constituent Assembly was also not subjected to a referendum for adoption by

the people. The tampering of the final document by the Supreme Military Constitution was also a

problem with the process. According to Bola Ige, “the 1979 Constitution was the nearest to how

37
These decrees were the NYSC Decrees No. 24 of 1975, Land Use Decree No. 6 of 197. And Nigeria Security
Organisation Decree No. 16 of 1976; see section 294 of the 1979 Constitution.
a constitution can be properly and democratically produced in the eighty one years of political

life”.38

2.9 1989 Botched Constitution

The attempt to introduce the 1989 Constitution was preceded by the setting up of the

Constitution Review Committee in 1987 to prepare a new constitution. This committee was

preceded by a political bureau which organized and collated political debates throughout the

country. All the 46 members of the Constitution Review Committee were selected by the

government and its report formed the basis of the deliberations in the Constituent Assembly.

There were 567 members of the Constituent Assembly, 117 of whom were selected and 450 were

elected. The constitution was however aborted after the annulment by General Ibrahim Badamosi

Babangida of the June 12, 1993 presidential elections which would have ushered it in..

2.10 1995 Aborted Constitution

This constitution was never passed into law because of the death of Sani Abacha in 1998. To

produce the constitution, a National Constitutional Conference was set up. The Conference was

made up of 369 members, of whom 270 were elected while 96 were nominated.

2.11 1999 Constitution

The current 1999 Constitution was produced without any elaborate processes by the Gen

Abdusalami Abubakar administration that was committed to handing over to a civilian

administration. He inaugurated a 25 member “Constitutional Debate and Coordinating

Committee” in November 1998 with a mandate to organize a debate on the 1995 Constitution.

The committee was headed by Justice Niki Tobi who was a Justice of the Court of Appeal at the

time. The Committee requested for memorandum from individuals and groups within and

38
Bola Ige, op.cit, p.29
outside Nigeria. Workshops and symposia were organized by individuals and groups on the 1995

draft Constitution and its reports were made available to the Committee.39

The Committee also collated data from public hearings it held at National debate centers and at a

special hearing at Abuja where various interest groups like the Judiciary, Nigerian Bar

Association, Nigerian Police Force, Nigerian Medical Association, Nigerian Society of

Engineers, Nigerian Labour Congress, and market women appeared and made contributions. The

data was then submitted to the Head of State.

The Provisional Ruling Council (PRC) then went to work on the 1979 Constitution, and though it

accepted most of the Committee’s recommendations, it amended some parts of the report.

Decree No. 24 of May 5, 1999 promulgating the 1999 Constitution stated that “such amendments

were necessary in the public interest and for the purpose of promoting the security, welfare, and

good governance ….of the people of Nigeria”.

The Federal Ministry of Justice produced the final draft Constitution based on the amended

report of the Committee. This draft was re-examined by the PRC and subsequently enacted into

law by Decree No. 24 of May 5, 1999.

The constitution has been criticized as an imposition from the military.

3. Evaluation of Nigeria’s Constitutional History

An evaluation of Nigeria’s constitution making history may be done using the following

objective criteria:

1. Whether the constitution making processes has produced an autochthonous constitution

for Nigeria?

39
Niki Tobi, “Legitimacy of Constitutional Change in the Context of the 1999 Constitution” in I. Ayua, A.
Guobadia and A. Adekunle (eds.) Nigeria: Issues in 1999 Constitution (Lagos: Nigerian Institute of Advanced Legal
Studies, 2000) pp. 21 - 42.
 2. Whether the constitution making processes adopts the old approach or the new

democratic and progressive approach to constitution making?

3. Whether the process respects the principle of gender equality?

3.1 The Autochtony Question

“Autochthonous” may be used as a synonym for indigenous and thus used in relation to a

constitution connotes a constitution that is home made, home grown, home processed, made

independent of imperial or other external control or influence and acknowledged by the people as

their own constitution.

According to Professor Nwabueze, a constitution is an act of the people if it is made by them

either directly in a referendum or through a convention or constituent assembly popularly elected

for this purpose, subject or not to formal ratification by the people in referendum. 40

Niki Tobi describes an autochthonous constitution thus:

“In general terms a constitution is said to be autochthonous if it derives its force and
validity from its own native authority and here the expression ‘native authority’ is
not used in the context of a local government authority but rather in the wider context
of the people in their sovereignty… Once the entire constitution making process is
indigenous and home-made, the element of autochthony is fulfilled”41

There are two schools or views on autochthony – the Pure Autochthony theory and the

Substantiality of Process test.42

According to the pure autochthony theory, the constitution must be completely people-led and

people-processed. Thus the constitution making process must be monopolized by the people and

their elected representatives. The members of the Constituent Assembly, where it is possible,

40
B. O. Nwabueze, The Presidential Constitution of Nigeria (London: C. Hurst & Company, 1982) p. 1.
41
Tobi, op. cit. p.30
42
Osipitan, op. cit
must be elected representatives of the people and the constitution must be approved by the

people in a referendum, if possible. 43

Bola Ige describes the process in his own words thus:

“It must be a constitution that is not only conceived by WE THE PEOPLE of the
Federal Republic of Nigeria, it must be thoroughly debated and discussed by
representatives of WE THE PEOPLE through a Constituent Assembly of
representatives popularly and democratically elected by universal suffrage and secret
ballot, taken back to the WE THE PEOPLE at all levels – Nationality, Ethnic,
Interest group, local council, professional groups, the business community, etc. – and
subjected to debate on radio, television and newspapers and finally, if a referendum
cannot be organized to decide on sensitive issues, the Constituent Assembly acting on
behalf of WE THE PEOPLE should pass and give unto themselves and all of us the
constitution of the Federal Republic of Nigeria.”44

He continues:

“No amount of consultations with Obas, Emirs, Obis, Obongs and Chiefs, no amount
of seminars and workshops with professional or other groups, no amount of public
discussion on radio, televisions, newspapers and other form can be a substitute for
popular election and referendum. That is the only way the people’s democratic will
and power can be demonstrated and gauged. All other methods are merely
bamboozlement”45

The Substantiality of Process test of autochthony on the other hand only requires that there

should be evidence of substantial input by the people in the constitution making process, and that

there be no imperial intervention and influence in the process. Under this test, once the totality of

the constitution making process tilts in favour of a home-grown and home-made nature and

content, the constitution qualifies as autochthonous.46

The question of autochthony in relation to the colonial pre-independence constitutions is a mute

one as they were all imperial processed constitutions whose authority was derived from the

43
Ibid.
44
Ige, op. cit. p. 32.
45
Ibid., p. 13.
46
Niki Tobi, op.cit, p. 38.
British imperial government. The 1960 constitution also failed to pass the test of autochthony as

it was processed and enacted into law by the British parliament.

The autochthony of the 1963 constitution has been disputed by some constitutional experts. Dr

T.O Elias is of the view that it was an autochthonous constitution on the grounds that the Queen

of England performed her last role as the “head of the Nigerian Monarchy” and at the same time

helped to usher in the new republic to which she became a stranger except perhaps as the head of

the Commonwealth.47

Professor Nwabueze on the other hand, holds that the 1963 constitution was not autochthonous

because it was enacted by a Nigerian Parliament pursuant to the powers derived from the

imperially processed 1960 constitution. He held that it was thus ineffective to break the tie that

linked Nigeria’s legal order to the British government. It also failed to launch Nigeria upon a

new existence that had constitutional roots springing from its own native soil.

We are of the opinion that going by the basic requirement that to qualify as autochthonous, there

must be evidence that there was no external intervention or influence in the drafting of the

constitution, the 1963 constitution may qualify as autochthonous since the intention behind the

passing of the constitution was to do away with the remaining vestiges of colonial rule and the

constitution was passed by a wholly indigenous parliament. It is however doubtful whether it

would qualify as a people’s constitution going by the process of its passage.

The 1979 and the 1999 constitutions were also passed by indigenous governments but have been

rejected as people’s constitution because despite the prior deliberations and consultations that

preceded their promulgation, the final documents were imposed on the people by the Military

who unilaterally amended the draft constitution..

47
T. O. Elias, Nigeria: The Development of the Laws and Constitution (London: Steven & Sons, 1967) p. 121.
3.2 The Old School Approach versus the New School Constitution Making Approach

According to Igbuzor, there are two distinct strategies to constitution making in Africa, which he

calls the old and the new approach. He writes that

“In the old approach, government appoints or stage manages the election of a
constituent assembly, parliamentary committee, technical committee, special task
force or select committee of conservative lawyers and politicians to write a
constitution for the country. The process of the old approach ensures that there is
little or no debate, no consultation with ordinary people and no referendum on the
draft constitution before it is decreed or passed into law. Even if the process allows
some limited debate, the result is predetermined and manipulated and not informed
by the logic and content of the debate. The old approach inevitably leads to imposed
or authoritarian constitution (Ihonvbere,2000:42). The new approach is a process led
and participatory approach that puts a lot of premium on dialogue, debate,
consultation and participation. It is guided by principles which include among others
inclusivity, diversity, participation, transparency and openness, autonomy,
accountability and legitimacy (Citizens Forum for Constitutional Reform, 2001:2-4).
Apart from the principles outlined above, the new approach utilises diverse
mechanisms such as appointment of an independent commission to direct the
process, elaborate public enlightenment and civic education and in built mechanism
for making the people of the country to claim ownership and authorship of the
constitution. (Igbuzor), 200148

This new approach which is regarded as compatible with the spirit of democracy is characterized

by the following indices: Inclusivity, Diversity, Participation, Transparency and openness,

Autonomy, Accountability and Legitimacy.

1. Inclusivity

According to Igbuzor “Inclusivity means that all voices and opinions including those of minority

groups should be heard and reflected. Efforts must be made to bring in the views and concerns of people

from all works of life. Every identifiable community should be invited, assisted and encouraged to

participate in the review process. Nationality groups, women, students, the armed forces, the illiterate,

the disabled, the poor, the rural dwellers, the youth, professions, trade unions, religious groups, traditional

rulers, community organizations, prisoners, human rights organizations, pro-democracy groups, political

48
O. Igbuzor, “Constitution Making and the Struggle for Resource Control in Nigeria”, available at
http://www.dawodu.com/igbuzor1.htm accessed on 6/6/2014.
parties, cultural organizations etc. should be involved to say what they will like to see in the

constitution.”49

This is the modern approach which seeks to take into consideration all the interests represented

in the country. On this count, it is apparent that the constitution making experience of Nigeria

has not been inclusive as it has consistently sidelined women and other minority interests.

2. Diversity

Igbuzor explains that “Diversity entails that the Committee charged with the review process and the

process itself must reflect existing diversity in terms of ethnic identity, language, religion and gender. It

is the responsibility of the country’s leadership and those leading the process to ensure that this diversity

is reflected. If this diversity is not reflected, the final document cannot claim to be democratic, legitimate

and reflective of popular view.”50

Again under the various constitutions, the body that did the final review of the various

constitutions be it the Armed Forces Ruling Council or the Supreme Military Council reflected

no such diversity. The councils were composed of only male soldiers whose geographical spread

was in no way reflective of the diversity of the Nigerian society.

3. Participation

This principle has been explained as follows:

“The principle of Participation requires that the process must take on board the
involvement of people at all levels in debating freely the content of the constitution.
Every effort must be made to ensure that people participate in the process.
Participation by the people is crucial because if the people do not participate, both the
process and the final document will be useless and irrelevant to democratic renewal
that is so badly needed in the country. It is necessary that the people not only
participate in the process but also should have easy access to the process and the final
constitution; understand it and use it in the defence of their individual and collective
rights. The principle of participation is pivotal because the centrality of constitution

49
O. Igbuzor, loc. cit.
50
Ibid.
 to the democratic process is increasingly being recognised by scholars, activists and
governments all over the world.”51

The colonial governor s’ constitutions were produced in breach of the principle of participation

although the consultations that attended the Macpherson Constitution was an improvement on

the non-consultation approach of the previous constitutions. The 1999 Constitution was also

preceded by various workshops to gather the opinion of different segments of the citizenry.

3. Transparency and Openness:

Transparency and openness require that the process must be transparent and open and must be seen by all

to be so. To ensure transparency and openness, all submission made to the review panel; analysis of the

submissions and the draft constitution should be filed, annotated, published and circulated widely.

Furthermore, anyone who submits a memorandum should be acknowledged and drafts and final copy of

the constitution sent to him/her.52

Unfortunately, the processes that led up to the making of our various constitutions have always

been shrouded in secrecy and the submissions made to the constitution making bodies are not

made available to the public.

4. Autonomy

The body charged with leading the review process must be autonomous and independent from

government control. It should not be tied to the whims and caprices of any arm of government.

Furthermore, the final document to emerge from the process must not be tampered with by the

government, and the process must be seen to be free from government control. 53

This requirement has always been breached in the Nigerian constitution making experience as

the Federal Military government has always tampered with the final document and made various

51
Ibid.
52
Ibid.
53
Ibid.
amendments before promulgating the final constitution. Both the 1979 and the current 1999

Constitutions suffered this treatment.

5. Accountability

In addition, the body charged with the responsibility of reviewing the constitution must be accountable to

parliament and the people. There should be periodic publication of report and progress of work in an

open and transparent manner.54

There has not been such an accountability as the appointed members of the constitution making

bodies have always been accountable not to the people or parliament but to the Federal

Government that appointed them.

6. Legitimacy

A national referendum should be conducted to test the popularity of the draft constitution. The minimum

vote for approval should be 51% of “yes” votes. The referendum will further popularize the contents of

the constitution and give the people the opportunity to review the draft constitution and be sure that

politicians have not eliminated their collective views. 55

There has never been such a referendum and the draft constitutions are usually tampered with by

the Military government before being promulgated.

It is generally accepted that Nigeria’s constitutional experience has not been inclusive. In the

words of Igbuzor Otive

”But there is agreement that the practice of democracy requires a legitimate

constitutional framework. Unfortunately, since the Northern and Southern
protectorates were amalgamated to form the territory now known as Nigeria in
1914, there has never been an inclusive dialogue process leading to a social
compact or a legitimate constitution.”56
54
Ibid.
55
Ibid.
56
O. Igbuzor , “Constitutional Reform In Nigeria’s Fourth Republic: Challenges To Civil Society Organisations”
Available at http://www.gamji.com/article5000/NEWS5168.htm retrieved on 12/6/2013, 1.01pm
3.3 Respect for Gender Equality

Another criteria for evaluating Nigeria’s constitution making experience is its respect for gender

equality. An argument has been advanced that constitution making in Nigeria has persistently

excluded female legitimacy. This was apparent from the colonial period up to 1979 when the

right to vote was denied to women.

Consequent upon this exclusion, the 49 members of the Constitution Drafting Committee set up

by General Murtala Mohammed to draft the 1979 Constitution were all men.

It is also important to note that all the post-independence constitutions were drafted under the

military government and promulgated into law either by the Supreme Military Council or Armed

Forces Ruing Council whose membership consists only of male members. The Armed Forces

Ruling Council had 26 male members.

Abiola Akiyode-Afolabi, while recognizing the falsity of the pre-ambular “WE THE PEOPLE”

outlined the argument succinctly as follows

“Certainly, the ‘we’ could not have included the women of Nigeria. History shows that
from Clifford’s constitution of 1922 to that of Abubakar in 1999, women were not
considered nor allowed to fully participate in the constitution making process. In 1979,
the constitutional drafting committee appointed to draft the constitution was made of 49
wise men with no single wise woman. The Abacha regime also appointed 361
representatives to a constitutional conference out of which only 8 were women. The 1999
constitution also continued with the same pattern of marginalisation of women. The
provisional ruling council that promulgated decree 24 of 1999 that brought the 1999
constitution into existence was a group of 26 military officers that had no single woman.
President Olusegun Obasanjo’s post-1999 efforts were not different. The 24-member
Presidential Committee on the Review of the 1999 Constitution inaugurated on October
19, 1999 and which subsequently submitted its report in February 2001 had only 4
women.”57

Thus this has been advanced as the reason for the gender inequality present in the 1999

Constitution/
57
Abiola Akiyode-Afolabi, “The Challenge of Making a Gender and People’s Constitution” ThisDay Live,available
online at http://www.thisdaylive.com/articles/the-challenge-of-making-a-gender-and-people-s-constitution/134330/
accessed 15/7/2014.
4 Conclusion

The Nigerian constitution making experience has been a chequered one spanning almost ninety

years of our corporate existence. It is however shocking that we are yet to get it right after so

many experiments and tinkering with our basic law. This has resulted in yet another

constitutional experiment in 2014 in the setting up of the National Constitutional Conference by

the Goodluck Jonathan administration, which every Nigerian hopes will finally get it right.

The general consensus with constitutional essayists is that the constitutions we have produced in

the course of our corporate existence from 1914 up to 1999 fall short in one way or the other

from an ideal document that can be used to further the democratic venture. Even though the

documents are deemed to be legally valid documents they are generally considered to be

illegitimate. In the words of Professor Ihonvbere

“Why were these early constitutions illegitimate even if legal? The truth is that they
were not compacted through a truly open and democratic process that paid attention
to the dreams, pains, and aspirations of African people, their communities, and
constituencies. In fact most of these were directly imposed constitutions or elite-
driven processes that treated the people and their ideas with disrespect, if not
contempt. The hallmark of imposed constitutions is that they are never subjected to
popular debates or referenda. If at any point the constitutions were subjected to
public debates, such debates were often brief, carefully monitored and manipulated.
The documents, either in draft or final forms, were never made available to the
people. If referenda were called, the results were rigged in favor of the state and its
custodians. In some cases, the reports of constitutional commissions were simply
ignored after elaborate ceremonies aimed at diverting public attention and convincing
donors and the international community that something positive was being done
about democracy. In Nigeria, not only were general and presidential elections
conducted without a constitution, but also the draft was never widely debated, seen or
voted upon by the people. Even after the presidential election, the government
continued to keep the constitution a secret and away from the Nigerian people. In an
open demonstration of military arrogance and insensitivity to the popular will, the
General Abdulsalami Abubakar junta refused to release the constitution even after the
military ruling council spent three days “putting finishing touches” to what was
supposed to be a peoples’ document. The illegal junta then promulgated a decree to
give legality to the document. This is hardly the way to lay the foundation for a
democratic project. Such arrogance of power and disrespect for the popular will
simply widens the already wide gap between the state and civil society, and between
the government and the governed. It is not surprising therefore that constitutions in
 postcolonial Africa have never enjoyed widespread acceptability. This lack of
acceptability mediates their utility as veritable weapons to be deployed in the defense
of the democratic project.58

We are of the opinion that the Constitutional Conference as praiseworthy as it is, will still not

hold the answer to the quest for an acceptable constitution for the people. In agreement with
59
Agha, we think that the task of making such a constitution for Nigeria should not be left for

one segment of the society alone. To produce a constitution which the people will identify as

coming from them, and not imposed on them, there is a need for the government and the

progressive forces in the country to agree on the process, the procedures and the guiding

principles for such an exercise. Then there ought to be an enabling legislation enacted to create a

Constituent assembly which should spell out the composition of the Assembly and the mode of

election to the Assembly. This will help to ensure that the final document is anchored on the

democratic principles of openness, responsibility, accountability, inclusiveness, equity etc.

If we must get it right, we must explore the modern democratic approach to constitution making.

In the words of Igbuzor,

“If Africa’s democratic projects are to survive, the participatory approach to constitution
making must be adopted. It is clearly the only way to mobilize and educate the people,
construct alternative democratic platforms, acknowledge primordial identities and
pluralism, and construct much needed platforms of inclusion, tolerance, and
participation. The process of constitution making is critical to the strength, acceptability,
and legitimacy of the final product. In fact, by involving the people and their
communities, they understand the document, its importance, and its relevance to the
larger democratic process.”60

58
J. Ihonvbere “Beyond constitution making” available at http://julius.ihonvbere.com/2008/07/beyond-constitution-
making/ retrieved on 12/6/2014.
59
E. Agha, “The Contradictions of Constitution-Making in Nigeria”, African Research Review, Vol. 6(4), No.27,
October 2012.
60
O. Igbuzor, Constitution Making and the Struggle for Resource Control in Nigeria, loc. cit.

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