Why The 1999 Nigerian Constitution Is A Flawed Document
By: Uchechukwu Ajuzieogu
Tags: Constitution, Africa, Nigeria, Nigerian Constitution, Democracy

Why The 1999 Nigerian Constitution Is A Flawed Document

The Nigerian Parliament, with the Mace in the foreground. Image credit of Premium Times Nigeria.

Nigeria was granted independence on October 1, 1960. A new constitution established a federal system with an elected prime minister and a ceremonial head of state. The NCNC, now headed by Azikiwe (who had taken control after Macaulay’s death in 1946), formed a coalition with Balewa’s NPC after neither party won a majority in the 1959 elections. Balewa continued to serve as the prime minister, a position he had held since 1957, while Azikiwe took the largely ceremonial position of president of the Senate.

Following a UN-supervised referendum, the northern part of the Trust Territory of the Cameroons joined the Northern region in June 1961, while in October the Southern Cameroons united with Cameroun to form the Federal Republic of Cameroon. On October 1, 1963, Nigeria became a republic. Azikiwe became president of the country, although as prime minister Balewa was still more powerful.

One might have thought that transition to independence and then democracy would have ushered in favorable status-quo for the largest populace in Africa. But that’s a wrong assumption till this present day. Why? Join me as you learn about a rigid constitution that remains static, bringing misery to the new millennial’s and beyond. This is the perspective of the 1999 Nigerian constitution.

Constitutional framework

Nigeria’s first constitutions were enacted by order in council during the colonial era, when the country was administered as a Crown Colony. The constitutions enacted during this period were those of 1913 (which came into effect on 1 January 1914), 1922, 1946, 1951 and 1954.

In 1946 a new constitution was approved by Westminster and promulgated in Nigeria. Although it reserved effective power in the hands of the Governor-General and his appointed Executive Council, the so-called Richards Constitution (after Governor-General Sir Arthur Richards, who was responsible for its formulation) provided for an expanded Legislative Council empowered to deliberate on matters affecting the whole country. Separate legislative bodies, the houses of assembly, were established in each of the three regions to consider local questions and to advise the lieutenant governors. The introduction of the federal principle, with deliberative authority devolved on the regions, signaled recognition of the country’s diversity. Although realistic in its assessment of the situation in Nigeria, the Richards Constitution undoubtedly intensified regionalism as an alternative to political unification.

The pace of constitutional change accelerated after the promulgation of the Richards Constitution. It was suspended in 1950 against a call for greater autonomy, which resulted in an inter-parliamentary conference at Ibadan in 1950. The conference drafted the terms of a new constitution. The so-called Macpherson Constitution, after the incumbent Governor-General, John Stuart Macpherson, went into effect the following year.

The most important innovations in the new charter reinforced the dual course of constitutional evolution, allowing for both regional autonomy and federal union. By extending the elective principle and by providing for a central government with a Council of Ministers, the Macpherson Constitution gave renewed impetus to party activity and to political participation at the national level. But by providing for comparable regional governments exercising broad legislative powers, which could not be overridden by the newly established 185-seat federal House of Representatives, the Macpherson Constitution also gave a significant boost to regionalism. Subsequent revisions contained in the Lyttleton Constitution, named for Oliver Lyttelton, 1st Viscount Chandos and enacted in 1954, firmly established the federal principle and paved the way for independence.

Let’s explore some of the past constitutions Nigeria have had till date.

Constitutional independence (1960 independence constitution)

Nigeria’s first constitution as a sovereign state was enacted by a British order in council so as to come into force immediately upon independence, on 1 October 1960. Under this constitution Nigeria retained Queen Elizabeth II as titular head of state.

1963 constitution (First Republic)

Independent Nigeria’s second constitution established the country as a federal republic. It came into force on 1st of October,1963 (Nigeria’s third anniversary as an independent nation). The 1963 constitution, which was based on the Westminster system, continued in operation until a military coup in 1966 overthrew Nigeria’s democratic institutions.

1979 constitution (Second Republic)

The 1979 constitution, which brought in the Second Republic, abandoned the Westminster system in favour of an American-style presidential system, with a direct election, directly-elected. To avoid the pitfalls of the First Republic, the constitution mandated that political parties and Federal Executive Council (Nigeria cabinet) positions reflect the “federal character” of the nation: political parties were required to be registered in at least two-thirds of the States of Nigeria or states, and each state had to have at least one member of the cabinet from it.

1993 constitution (Third Republic)

The 1993 constitution was intended to see the return of democratic rule to Nigeria with the establishment of a Third Republic, but was never fully implemented, and the military resumed power until 1999.

1999 presidential constitution (Fourth Republic)

The 1999 constitution restored democratic rule to Nigeria, and remains in force today. In January 2011, two amendments of the 1999 constitution were signed by President Olusegun Obasanjo, the first modifications since the document came into use in 1999.

33. (1) Every person has a right as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary

-(a) for the defence of any person from unlawful violence or for the defence of property:

(b) in order to effect a lawful arrest or to prevent the escape of person(s) lawfully detained; or

(c) for the purpose of suppressing a riot, insurrection or mutiny.

34. (1) Every individual is entitled to respect for the dignity of his person, and accordingly

(a) no person shall be subject to torture or to inhuman or degrading treatment;

(b) no person shall he held in slavery or servitude; and

(c) no person shall be required to perform forced or compulsory labour.

(2) for the purposes of subsection (1) © of this section, “forced or compulsory labour” does not include

(a) any labour required in consequence of the sentence or order of a court;(b) any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such;

© in the case of persons who have conscientious objections to service in the armed forces of the Federation, any labour required instead of such service;

(d) any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community; or

(e) any labour or service that forms part of

-(i) normal communal or other civic obligations of the well-being of the community.

(ii) such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly, or

(iii) such compulsory national service which forms part of the education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly.

*see the credits for link to the full objectives of the 1999 Constitution.

Under the 1999 constitution, executive power is vested in a president who serves as both the head of state and the chief executive, is directly elected to a four-year term, and nominates the vice president and members of the cabinet. The constitution provides for a bicameral National Assembly, which consists of the House of Representatives and the Senate. Each state elects 10 members to the House of Representatives for four-year terms; members of the Senate — three from each state and one from the Federal Capital Territory — also are elected to four-year terms.

How The 1999 Constitution Is Flawed

As denoted by the subtitle of the article, constitutional issues are usually ignored by many Nigerians until their rights are affected in a visible and direct manner. However, here is your periodic reminder that the 1999 Constitution is a flawed document, and cannot work for the benefit of the majority of us Nigerians.

I’d share details and views from Ayo Sogunro; a writer, lawyer and LL.D scholar at CHR Human Rights. His view is entirely interesting to me because there are numerous points he opined that I and many other Nigerians definitely agree on.

He opine reasons for the 1999 constitution being flawed as follows:

The Nigerian Constitution is, literally, a military enactment. It was singlehandedly decreed into law by General Abdulsalam Abubakar as Decree 24 of 1999, without public input, without public debate, and without a public vote on it. This is absurd in a democracy. The Nigerian Constitution is a document that safeguards the established political system and elite interests created by the colonial govt and perfected by the military govt. It highly centralizes powers and functions through ridiculously expansive federal executive powers. The Nigerian Constitution safeguards military legacy. It bans the judiciary from hearing cases on the competency of the military to make laws/policy from 1966–1999, thus preventing opportunities to address and ensure accountability for decades of oppressive military rule. The Nigerian Constitution gives the govt without making it accountable. It bans the judiciary from hearing any case on whether govt action/policy is in compliance with the govt’s constitutional duties, including duties to provide healthcare, education, and equal opportunities. The Nigerian Constitution creates a police state by giving the unilateral control of the armed forces and police to the executive govt without providing legislative oversight and reporting. The NASS can pass laws to regulate military affairs but it has no oversight role. The Nigerian Constitution limits the public participation of ordinary citizens. We can only vote at elections. There are no provisions for direct democracy: such as city assemblies, town halls, referendums, or a requirement for govt to consult communities on policy issues. The Nigerian Constitution is elitist. It establishes a number of ‘executive’ bodies that do not have legislative oversight and do not report to the public. The worst of these bodies is the RMAFAC which is an elite club that determines the salaries of public officials!

7b. RMAFAC is Revenue Mobilisation Allocation and Fiscal Commission. Think of it as similar to INEC, but for determining salaries and payments of the executive, legislature, and judiciary. Do you even know who the members are? Why do we need them? Why don’t they report to us? Those are just the basics of the problematic things the Nigerian Court does. If I start a thread on the good things the Nigerian Constitution DOES NOT do, we will not leave here. NASS and the state HoAs have powers to amend the constitution. And they usually do so, often in their own self-interest and with or without public input. This too is a flaw. A body created by a Constitution should never have the sole power to amend its own origin document. The role for NASS/HoAs in a reform process should be to make one last amendment: empower govt to initiate a consultative and participatory constitutional making process. And then then the legislators step back and allow the process to run its course.

Conclusion

Honestly, great pointers I must say, and despite the numerous times the constittuion has been reviewed, reversed and modified, our lawmakers are not getting it right. An instance is the recent inclusion of underage girls to be registered voters. The constitution express concern that only those from 18 years and above can be accredited voters, the electoral bill specifies this, but in the most recent times, we’ve seen lawmakers collaborate with the government to do things not constitutionally right.

You must have asked yourself, when do we get this right? Well, I have no such answers, but as you have seen, Nigeria has come a long way from colonialism, to independence and now democracy. We have Senate that a lot of Nigerians can’t fathom their role in their lives. It’s only until recent that the issue of sexual abuse was enacted to the constitution. As you can read, you can ascertain that for culture to grow and become embraced, it must be dynamic not static. What we have seen so for the past 2 decades, is a static and rigid 1999 constitution that respects no human rights, we’ve seen this during the #ENDSARS peaceful protest, and yet no justice for the victims as I write.

Where do we go from here? Honestly, the answer is nowhere. Nowhere to go, because at this point, our can, cannot CAN.

Article Credits

Ayo Sogunro — A Thread on the Flawed Constitution

Wikipedia — Constitution of Ngeria

Encyclopedia Britannica — Nigeria: Government and Society