Constitutional Autochthony and Referendums for a New Constitution: A Comparison With 1999 Provisions (Part 1)

Introduction 

Constitution

While it is difficult to give a universally acceptable definition of the word “Constitution”, the Constitution can be defined the “birth certificate” of a nation; the supreme law of the country; and, the most sacred and solemn document. In F.C.D.A v EZINKWO (2007) LPELR-9015(CA), the Court of Appeal, per Mary Peter-Odilli, JCA, held that:

“The Constitution being the organic law of the country and the fons et origo from which all other laws derive their validity, the organic law which prescribes rights, powers, duties and responsibilities, no part of it can be described to be adjectival or procedural law in the sense in which that expression is often used. The Constitution is a substantive law which makes provisions for the procedural law applicable in the various courts established by it”.

The origin of most modern constitutions can be found in the desire for a break with the political past, and the need for a new beginning in governance. The Constitution of a State establishes the basic form of government of that State, and pre-eminently defines the prevailing forms of government thereof. (See E. Michael Joyes and Kingsley Igweike; Introduction to the 1979 Nigerian Constitution (1982) pp1-25).

While it may be argued that the Europeans brought constitutional government into the “geographical expression” called Nigeria, it is however, germane to state here that before the incursion of the colonialists, there existed indigenous political institutions in Nigeria. For instance, in the Fulani/Hausa North, there were powerful kingdoms which set up theocratic States with Emirs as spiritual and temporal leaders/heads.  In Yorubaland and Igboland, the Yorubas and Igbos also operated an administration similar to the North, with Obas (kings) and Igwes as their respective heads. The old Benin Kingdom was independent, powerful and extensive and could even beat back colonial meddlesome interlopers, which led to the 1897 punitive Expedition of the Colonialists.

Since the exit of Colonial rule, Nigeria has governed itself through successive governments and regimes. Its gestation process finally birthed the 1999 Constitution, which was widely celebrated as it was believed to include the people in the leadership of the country using the principles of democracy and rule of law. However, in the presence of politics and politricks, these principles are far eroding from Nigeria’s Constitution. Thus, there is the need for a new Constitution, one of, from and by the people, to preserve and empower the principles of rule of law and democracy in Nigeria, so that she does not fall back to the Hobbesian state of nature, where life was short, nasty and brutish. This, is what this paper seeks to analyse.

Definition of Constitution

According to Black’s Law Dictionary (6th Edition) P.311, Constitution is defined as the organic and fundamental law of a nation or state, which may be written or unwritten; establishing the character and conception of its government; laying the basic principles to which its internal life is to be conformed; organising the government; regulating, distributing and limiting the functions of its different departments; and, prescribing the extent and manner of the exercise of sovereign powers. A Constitution may be a single document, as the American Constitution, or a group of documents, or even a series of laws and written rules or regulations developed over many centuries, as the British Constitution.

It may also refer to the whole system of government of a country, the collection of rules which establish and regulate or govern the government. These rules are partly legal, in the sense that courts of law will recognise and apply them, and partly non-legal or extra-legal, taking the form of usages, understandings, customs or conventions which courts do not recognise as law, but, which are not less effective in regulating the government than the rules of law strictly so called.

A Constitution should therefore, be a charter of government, deriving its whole authority from the governed. The mere possession and publication of a Constitution, does not make a government constitutional. A Constitution, or rather a constitutional government, colour of its definition irrespective, ought to be the result of a parallelogram of forces – political, cultural, historical, economic and social – which operate at the time of its adoption. Thus, we may expect that the Constitutions of different countries will be to the extent of the political, economic and social forces in such countries. It becomes inevitable, therefore, that the Constitution of a particular country will be tailored to meet the needs of that country.

History of Nigeria’s Constitutional Journey

Before the emergence of a country called Nigeria, as conceived by our colonial masters, the Nigerian space was made up of independent Kingdoms, Nations and Empires that existed on their own, separate from each other. Though Nigeria gained her independence in 1960, she actually came into existence as “Nigeria”, as pronounced in the London Times on 8th January, 1897, by a young British Journalist, Miss Flora Louisa Shaw who later married Lord Sir Baron Frederick Lugard, the Governor-General who amalgamated the Southern and Northern Protectorates to found Nigeria, on 1st January, 1914. She had coined Nigeria as a shorter name, for the “agglomeration of Pagan and Mohammedan States”, to replace the rather lengthy official title of Nigeria, “Royal Niger Company Territories”.

Pre-Independence History

The Amalgamation of 1914

The amalgamation of Nigeria in 1914 was executed by three distinct Constitutional instruments, all of which were made under the authority of the colonial office in London. These instruments together form what may be termed the “first Constitution” of Nigeria. Although, the Constitution was really the making of one man, Sir Frederick Lugard, its key features included the appointment of a single Governor and Commander-in-Chief for the whole country, while retaining the hitherto existing Executive and Legislative Councils of the colony of Lagos.

Clifford’s Constitution of 1922

Sir Hugh Clifford succeeded Sir Frederick Lugard as Governor of Nigeria in 1919, and he imputed some reforms as a result of pressures from the West African Congress, a nationalist group led by Casely Harford. The new Constitution introduced by Clifford in 1922 replaced both the Legislative Council of 1862 (which was enlarged in 1914) and the Nigerian Council of 1914. The Legislative Council made laws for the Colony and Southern provinces, while the Governor continued to legislate for the North by means of Proclamation. Sir Hugh Clifford’s Constitution of 1922 primarily introduced the conduct of elections into the country, and encouraged formation of the first indigenous political party in Nigeria in 1923, led by Herbert Macaulay.

The Richard’s Constitution of 1946

By 1943, when Sir Arthur Richards succeeded Sir Bernard Bourdillon as the Governor of Nigeria, the political atmosphere in the country at the time had already become charged with increased widespread agitation from the nationalist groups for constitutional reforms. Sir Richards then responded swiftly, perhaps, for the fear of political unrest, by making proposal for a new Constitution for Nigeria. His proposals were aimed at promoting the unity of Nigeria; providing adequately within that desire for the diverse elements which made up the country; and, securing great participation by Nigerians in the discussion of their own affairs. 

The white paper embodying these proposals, was subsequently tabled before the Legislative Council for its approval and adoption. A motion for this purpose by the acting Chief Secretary was carried, after a brief debate, with only Dr N.T. Olusoga dissenting (the then Member, Representing Ijebu Division). The proposals were soon afterwards dispatched to London where, after minor amendments, they were passed into law in August, 1946. It finally came into force in January, 1947. Richard’s Constitution of 1946 principally ended the long exclusion of the Northern Provinces, in the administration of the country. It integrated the Northern Provinces into the main Legislative and Executive Councils, and enabled more Nigerians in the political process.

The Macpherson Constitution of 1951

The making of the Macpherson Constitution gave Nigerians their first opportunity of expressing themselves through the type of Constitution they desired, by the setting up of a select Committee of the Legislative Council to review the 1946 Richards Constitution. The Committee also consisted of all the unofficial members of the Council, together with the three provincial Chief Commissioners, the Attorney-General, the Financial Secretary and the Chief Secretary, who was the Chairman.

The review and consultations with the people, were done by compiling a series of questionnaires which were then submitted for discussions and comments at various meetings; first at provincial and divisional conferences, followed by regional conferences, and then, Lagos and Colony conferences rounded up with the General Conference (Legislative Council Debates, 11th March, 1949). These constitutional processes took place between 1949 and 1950, with a draft proposal on the Constitution adopted at the general conference at Ibadan. 

The draft was subsequently approved by the select Committee of the Legislative Council and the full Council, before it was sent to the Secretary of State for the Colonies for his approval. The Secretary, in his dispatch to the Governor, dated 15th July, 1950, gave general approval to the draft proposals. The draft finally formed the basis of the new Constitution, in the form of the Nigeria (Constitution) Order-in-Council of 1951. Macpherson’s Constitution of 1951 essentially increased regional autonomy, and established larger and more representative Legislatures with wide powers in the regions and at the centre. 

The Lyttleton’s Constitution of 1954

Barely two years into its operation, the 1951 Constitution broke down. Several factors led to this, the most prominent being the ethnic rivalry between the Igbos and the Yorubas, which by this time had escalated and was fast spreading to the North. Consequently, two Constitutional conferences were held in London in 1953 and Lagos in 1954, to review the 1951 Constitution. At these Conferences, an agreement was reached between the representatives of the three major political parties (then more or less in power in each of the regions) on one hand, and the Secretary of State for the Colonies on the other. 

Part of the agreement was to create the fullest possible authority for the regions under a truly Federal Constitution, as opposed to the mere decentralised structure of the 1951 Constitution. The new structure (Constitution) came into effect from 1st October, 1954. The Lyttleton Constitution of 1954 introduced full ministerial responsibilities, provided for appointment of a Premier in each of the three regions in the Federation, regionalised the public service, Judiciary and the marketing boards, as well as provided for revenue allocation based on the principle of derivation. (To be continued)

THOUGHT FOR THE WEEK

“Federalism is an intrinsic part of our constitutional set-up.(Naveen Patnaik)