The Symbolism and Legality of State Constitutions in Nigeria

Bolaji Ayorinde, SAN

Prologue

State Constitutions are important democratic governing documents, and they can be all the more important if their role in the Federal system of government is understood properly. As such, a renewed appreciation of State constitutional law is essential, for restoring a better balance of National-State authority in a Federal system. Both the Federal and State Constitutions are organic texts: they are the fundamental blueprints for the legal and political organisations of a Federal Government and the States, respectively.

The American Federal System of Government

The American Federal system (from which the Nigerian Federal system of Government was copied) rests on two constitutional pillars, that is, the 50 State Constitutions and the United States Constitution (National Constitution). Metaphorically speaking, if one or the other pillar is cut down in size or raised too high, then the Federal system becomes unbalanced. In many respects, this is what has happened to our Federal system of government in Nigeria – imbalance due to the absence of State constitutions. Ours in Nigeria, is a patched-patched Federal System of Government.

In the United States of America, State Constitutions are the business of Governors, Legislatures, the People and the Courts. Most State Constitutions are amended much more easily and frequently, than the National Constitution. Citizens promote or affirm changes in State Constitutions by initiative or referendum. In addition, Governors and the Legislature are frequently involved in providing leadership for constitutional change. However, because of the direct role of citizen participation in State constitutional development, amendment plays a larger role in the change process than it does for the National Constitution.

The United States Bill of Rights provides in part that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. The Guarantee Clause of Article 4 of the Constitution states that “The United States shall guarantee to every State in this Union a Republican Form of Government.” These two provisions indicate that States did not surrender their wide latitude to adopt a Constitution, the fundamental documents of State Law, when the U.S. Constitution was adopted.

Typically, State Constitutions address a wide array of issues, deemed by the States to be of sufficient importance to be included in the Constitution rather than in an ordinary Statute. Often modelled after the Federal Constitution, they outline the structure of the State Government and typically establish a Bill of Rights, an executive branch headed by a Governor (and often one or more other officials, such as a Lieutenant Governor and State Attorney – General), a State Legislature, and State Courts, including a State Supreme Court (a few States have two High Courts, one for civil cases, the other for criminal cases). They also provide general governmental framework for what each branch is supposed to do, and how it should go about doing it.

The Nigerian Case

Section 2(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides thus:

“Nigeria is one indivisible and indissoluble sovereign State to be known by the name of the Federal Republic of Nigeria.”

2 (2) goes further to provide that – “Nigeria shall be a Federation consisting of States and a Federal Capital Territory”.

It is therefore safe to state that, Nigeria like the United States of America, is both a ‘Federation’ and a ‘Republic’.

What is a Federation?

The word ‘federalism’ is derived from the transitive verb ‘federate’, meaning to join together in a Federation, or cause various bodies to join together in a Federation. Its verb, ‘federating’, means to associate, implying a coming together of States into a League or federal union. Therefore, federalism connotes an arrangement in which political powers are constitutionally shared between the central government and the federating units. It is a device that enables each group in a plural society to look after its own internal affairs, free from outside interference. It is also a device for limiting the powers of the centre, in order to prevent it from becoming an instrument of total domination. Just as one cannot play Shakespeare’s Hamlet without the ‘Prince of Denmark’, it is impossible to ignore Nwabueze’s opinion on a discussion of federalism. The renowned Constitutional Law Expert defines federalism as – “an arrangement whereby powers of government within a country are shared between a national, countrywide government and a number of regionalised (i.e. territorially localised) governments, in such a way that each exists as a government separately and independently from the others, operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority in some matters exclusive of all the others”.

What is a Republic?

The word republic, comes from the Latin word res publica, (public thing) and refers to a form of government where the citizens act for their own benefit, rather than for the benefit of a ruler or king. A republican government is one in which the political authority comes from the people.

As a political belief, the noun ‘republic’ connotes the notion that –

• Sovereignty rests with the people or their representatives, rather than with a monarch or emperor;

• There can be no exercise of political power, be it at the centre or periphery, except as determined by the people; and

• No public resources ought to be deployed in maintaining institutions or offices that are not constituted from the exercise of peoples’ sovereign will (N.J.Udombana).

Survey of Constitutional Development in Nigeria

To determine the symbolism and legality of State Constitutions in Nigeria, the various Constitutions enacted in Nigeria from the Independence Constitution to the Current CFRN 1999 must first be examined. Most of these Constitutions were preceded by the setting up of Constitution Drafting Committees, and or Constituent Assemblies and or Constitutional Conferences. For instance, the 1960/1963 Constitutions provided for Regional Constitutions; however, in subsequent Constitutions, the provisions for Regional Constitution or State Constitution (upon the creation of the States) was abandoned. To ascertain why the regional/state constitution was jettisoned, we must also examine the debates and issues that formed the fulcrum of the draft Constitutions that were later enacted.

Nigeria has enacted roughly five Constitutions between independence and now, though one was inoperative. They are the 1960 (Independence) Constitution; 1963 (Republican) Constitution; 1979 (Second Republican) Constitution; 1989 (Babangida) aborted Constitution; and 1999 Constitution (as amended). Elaborate and often expensive constitutional conferences and/or constituent assemblies, preceded the making of these constitutions.

The Independence Constitution of 1960

The 1960 Independence Constitution was preceded by the London Conferences of 1957 and 1958, as well as the Constitutional Conference of 1960. The 1957 Conference deliberated and decided on many issues, such as internal self-governance in 1959 and full political independence in 1960. There was a proposal to create new States out of the then existing three – Northern, Western, and Eastern – regions, in order to establish equilibrium and allay the fears of minorities. Meanwhile, the 1960 Constitution provided for a federal system, consisting of strong regions and a centre with limited powers. The 1960 Constitution specifically allowed each region to enact its own Constitution, Coat of Arms, and Motto.

The 1963 Republican Constitution

The 1963 Constitution provided for a ceremonial President, while the Head of Government was a Prime Minister. In the regions, there were ceremonial Governors, while the Executive was headed by Premiers. The National Parliament consisted of elected Representatives, and a Senate whose members were nominated from the Houses of Chiefs. Two types of Legislative Lists were entrenched, namely: The Exclusive Legislative List for the Centre, and the Concurrent Legislative List for both the Centre and the Regions. Before the promulgation of the 1963 Constitution, there were numerous disturbing signs of discord, tension and disagreements, leading the nation to slip into a series of crises. All these negative developments watered the seed of discord that eventually led to the fall of the First Republic through the violent military intervention of January 15, 1966, and the emergence of General Johnson Thomas Umunnakwe Aguiyi-Ironsi as the first military Head of State in Nigeria.

Constitutional Conferences Under the Military

In February 1966, following the violent seizure of power by the military and the collapse of the First Republic, three important Study Groups were set up by the new Administration in order to examine Constitutional, Administrative and Institutional problems in the Federation. The Study Group on Constitutional problems was to, among others, review all aspects of the 1963 Constitution including – the structure, division of powers and the electoral, as well as party political system; identify factors militating against national unity and the emergence of Strong Central Government; and recommend possible safeguards. Before the Constitutional Study Group made any progress, it was scuttled by the promulgation of the Constitution (Suspension and Modification) (No. 5) Decree No. 34 of 1966.

The Unification Decree No. 34 of 1966

Under Decree No. 34 of 1966 promulgated by the General Ironsi regime, Nigeria ceased to be a Federation and instead, came to be known as “Republic of Nigeria”; the Regions were equally abolished and each came to be known as “Group of Provinces” under a Military Governor appointed by the Head of the National Military Government; and a National Public Service was created through the unification of all the existing Public Services in the Regions. Lt. Colonel (Later General) Yakubu Gowon overthrew the Ironsi Military Government in another bloody coup d’état. Gowon set up an Advisory Group of Civilians to advise his Government on appropriate Constitutional changes that could be easily accommodated, considering the circumstances and mood of the nation. The Constitutional (Suspension and Modification) Decree 9 of 1966, returned the Political Structure of the country to the position before the promulgation of Decree 34. An Ad Hoc Constitutional Conference of the Advisory Group of Civilians was convened on September 2, 1966 in Lagos. By the end of the month, a preliminary report was submitted to the Supreme Military Council. The proposals presented by the Regional Delegations showed the extent to which the country had drifted apart, and was on the brink of disintegration. The Conference failed, because the protracted deliberations on the acceptable formula for maintaining the Federation were prematurely ended with the news of fresh outbreak of violence in the North, which was also echoed in the South. The Gowon administration ruled out a complete break-up of the country, and suggested three possible constitutional arrangements that would enable Nigeria to remain as one nation: a Federation with a strong Central Government; a Federation with a weak Central Government; or a

Confederation with no Central Government.

Gowon’s Constitutional Conference had deliberated on proposals from the four Regions, without deciding on any agreed programme for keeping Nigeria as an indivisible political entity. The positions of the Delegates from the Regions on the form of association, differed considerably. For instance, the Mid-west supported continued Federation with the existing four Regions, with more regions in the future and with Lagos either as Federal Territory or as a separate State. The West and Lagos proposed a Federation with more States on linguistic basis, with Lagos as a separate State. The East demanded a loose association of States, comprising the existing Regions. The North advocated for Nigeria to have strong autonomous States, delegating powers to a Central Authority for common services.

Murtala/Obasanjo Constitutional Initiatives

Following another Coup d’état July 29, 1975 that toppled Gowon and brought Murtala Mohammed; the new Military Government under General Murtala announced a five-stage programme of transition to democratic civilian administration, including the setting up of a Constitution Drafting Committee (CDC) in September 1975, to produce and submit to the Supreme Military Council a Draft Constitution.

In August 1977, the Constituent Assembly Decree No. 50 of 1977 established a Constituent Assembly (CA), which comprised elected and nominated Members to deliberate on the Draft Constitution drawn up by the CDC. The most controversial issues during the debates at the Assembly, were those relating to the creation of new States. Despite the argument that a Representative Assembly possesses a legitimacy superior to that to be derived from the stamp of any other authority (salus populi suprema lex), the Federal Military Government made 22 amendments to the Assembly’s version of the Draft Constitution which the then Head of State, General Olusegun Obasanjo, said were meant to strengthen it and ensure stability, progress and continuity. The issues relating to the amendments were popularly referred to, as the “No-Go-Areas”.

General Obasanjo promulgated the amended Draft Constitution presented to his regime, into the 1979 Constitution. A General election was held which, ushered in a civilian administration at Federal level and the 19 States of the Federation, with Alhaji Shehu Shagari as the elected President and a National Assembly comprising a Senate and House of Representatives at the centre. Similarly 19 State Governors were elected, each with an elected State House of Assembly. The Second Republic lasted four years.

General Babangida’s Constituent Assembly

The Military struck on December 31, 1983, exactly three months into President Shehu Shagari’s Second Term in office. General Muhammadu Buhari, emerged as the new Head of State. The austere economic policies of Buhari’s regime caused severe hardship across the country, and a faction of the military took advantage of the situation to stage a counter-coup which brought General Ibrahim Badamasi Babangida to power on August 27, 1985.

In January 1986, the Armed Forces Ruling Council (AFRC) under General Babangida, established a Political Bureau to sensitise Nigerians politically, receive and collate their ideas/opinions on a possible future political system. A Constitution Review Committee (CRC) was also set up in September 1987, in order to examine the 1979 Constitution, and make relevant amendments for the consideration of Government. A Constituent Assembly similar to the one established in 1977 was set up, comprising some elected and nominated Members. The Assembly was mandated to deliberate on the CRC recommendations. General Babangida’s Constituent Assembly did not bring any fundamental changes to the 1979 Constitution, except for the provision of a 2-Party System; establishment of Traditional Councils, and conferring on States the powers to create Local Government Development Areas (LGDAs).

The National Constitutional Conference of 1994/95; Abacha Conference

The annulment of the results of the June 12 Presidential Election by the Armed Forces Ruling Council, created very serious political and inter-regional problems. The fault-lines of differing identities across the country, became suddenly sharpened and solidified. General Babangida himself was consequently, consumed in the flames of organised opposition and sustained protests against military rule and militarism especially by individuals, groups and civil society organisations from the Southwest. He abdicated in controversial circumstances on August 27, 1993, and installed a very successful andº respected industrialist who did not have public service background or political antecedents: Chief Ernest Shonekan, to head an Interim National Government (ING).

Chief Shonekan’s interim administration lasted only three months, and was challenged on many fronts (political and legal) for its doubtful legitimacy, leading to its overthrow by the Minister of Defence, General Sani Abacha on November 17, 1993. With the termination of the ING, the agitations for a return to Constitutional Government heightened. In response, the new Head of State stressed the determination of his Administration to restore power to Civilians, based on a transparent process of democracy. Amidst incessant unceasing calls from several quarters for a Sovereign National Conference (SNC), General Abacha convened a National Constitutional Conference in 1994.

Nationwide, non-partisan, indirect elections were held into the National Constitutional Conference on May 28, 1994 wherein 273 Delegates, each representing a Conference District, were elected to the Conference. In addition to the elected Conference Delegates, the Provisional Ruling Council (PRC) nominated 96 other persons, three from each State of the Federation and three others representing the Nigerian Labour Congress (NLC), the Nigerian Union of Teachers (NUT) and the National Union of Nigerian Students (NUNS). The Head of State appointed both the Chairman of the Conference and his Deputy, as well as Members of the Conference Commission – the administrative organ established to manage the National Constitutional Conference.

The 369-member Conference was deliberately designed to avoid being dominated by a single group, interest or section in the country. It brought together persons chosen on the platform of delineated constituencies, small enough to facilitate the equal participation of all. The nominated Delegates were drawn from a wide spectrum of the society, such as professionals from law, medicine and engineering. Other sectors represented included, religion, politics, academia, administration, banking, industry, the armed forces, law enforcement and security services (retired personnel only), the media, traditional rulers, technocrats, local community leaders and opinion moulders. However, there was a huge gender deficit in the representation, as only eight out of 396 Delegates were females.

The National Constitutional Conference was boycotted by the vocal sections of the society that agitated for the convocation of a Sovereign National Conference – i.e. – the civil society advocates, including the Southwest-based National Democratic Coalition (NADECO), and the mainstream political platform of the Southwest – the Afenifere. The Conference concluded its assignment in 1995. The products of its deliberations included policy recommendations, and a new Constitution that was never promulgated. Elements of that Constitution that never saw the light of the day included, the introduction of a hybrid political system similar to the French model of a President subsisting with a Prime Minister. The Conference also came up with new initiatives that have now been entrenched in Nigeria’s political landscape – the six geo-political zones.

The failure to promulgate the new Constitution and the sudden death of General Abacha in 1998 after a controversial attempt at self-succession, led to the emergence of General Abdulsalam Abubakar as the new Head of State. The new Head of State established a Constitution Review Committee which examined previous constitutional arrangements, and made recommendations for a new Constitution. The new Constitution was largely a re-enactment of the 1979 and 1989 Constitutions, with few additions or modifications. An election was held in 1999 which ushered in a new civilian democratic dispensation under President Olusegun Obasanjo, a bi-cameral National Assembly at the Federal level, and 36 State Governors with State Houses of Assembly.

Finally, there is nowhere in the various Constitutions enacted in Nigeria, where reference was made to State Constitutions, with the exception of the 1960 Constitution which made provisions for Regional Constitutions. Neither the above examination of the 1960 (Independence) Constitution; 1963 (Republican) Constitution; 1979 (Second Republican) Constitution; 1989 (Babangida) aborted Constitution; the 1999 Constitution (as amended), nor all the expensive constitutional conferences and/or constituent assemblies that preceded the making of these constitutions provided for State Constitutions.

The 1999 Constitution’s Silence on State Constitution

The Constitution of the Federal Republic of Nigeria, 1999 (as Amended), is silent on the issue of State Constitutions. The question that begs for answer is whether the silence of the 1999 Constitution on State Constitutions, could mean that the power to make a State Constitution is a residual power that is reserved for the States Houses of Assemblies to legislate on. As to whether inference could be drawn from other relevant provisions of the 1999 Constitution to conclude that States Houses of Assemblies have the power to enact their respective State constitution, a look at the First & Second Schedules to the 1999 Constitution (i.e. the Exclusive, Concurrent and Residual Lists) will reveal that no reference whatsoever was made to State Constitutions. This constitutional silence has further compounded the problem of determining whether or not a State can enact its own Constitution, as well as the proper legislative authority imbued with the power to enact a State Constitution.

However, Section 4(6) & (7) of the 1999 Constitution vests an omnibus legislative power of the States of the Federation in the Houses of Assemblies thus:

“Section (6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.

Section (7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:-

(a) Any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and

(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”

Possible Features of a Nigerian Model State Constitution

The Model State Constitution is “an ideal of the structure and contents of a State Constitution that emphasises brevity and broad functions and responsibilities of government”, according to Ann O’M Bowman and Richard Kearney in “State and Local Government”. It is my respectful view that, a State Constitution can include the following items:

i. The Coat of Arms, Motto and Logo of a State and its distinctive features,

ii. State Anthem, as well as the occasion it should be rendered,

iii. Establishment of Traditional Council thereby involving them in governance, such that they can play an advisory role as an organ of a state government,

iv. Alternative Dispute Resolution Mechanism to aid the state’s Judicial system,

v. Local Vigilante groups such as Amotekun should be recognised by the Constitution, as a State security outfit.

I submit that all matters that are not allocated to the centre exclusively, or to centre and regions concurrently but reserved for State under the ‘residual list’, can be included in the state Constitution.

Conclusion

This article set out to examine the symbolism and legality of State Constitution in Nigeria. In furtherance of this objective, it clarified key concepts relevant to the discourse, examined the relevant constitution and constitutional conferences/debates in Nigeria from 1960 Constitution to the current 1999 Constitution (as Amended). From these reviews and analyses, I found that; though, there is no provision for a State Constitution in the CFRN, 1999 unlike the 1960 Constitution, however, it is my respectful view that – going by the provisions of Section 4(7) of the CFRN 1999 to the effect that – a House of Assembly of a State shall have power to make laws for the peace, order and good government of a State, and in view of the lack of express prohibition of a State Constitution in the CFRN 1999, a State can rely on the omnibus provisions in Section 4(7) of the CFRN 1999, and enact a State Constitution for the good governance of their State. More so, it was found that, it is now rather trite that what the law/constitution does not prohibit is permitted. This has been encapsulated into a Latin Maxim “licet non sit prohibitus” which literally means “Everything which is not forbidden is allowed”. I submit that licet non sit prohibitus is a constitutional principle. It is the concept that any action can be taken by an individual or a body, unless there is a law against it. It is also known in some situations as the “general power of competence”, whereby the body or person being regulated is acknowledged to have competent judgement of their scope of action. The opposite is a principle whereby an action can only be taken, if it is specifically allowed. The general power of competence operates in most States and societies, as it is much easier to specify what cannot be done, than listing what can be done.

The State Constitution itself is symbolic of federalism, and portrays the State as a federating unit. In our dear Oyo State, we have our Logo and Coat of Arms, we have a beautiful Anthem which is sung with great pride. I believe we can have a State Constitution, as a symbol of our status as a federating unit in Nigeria.

Bolaji Ayorinde, SAN