Constitutional Review
Autor: Damian Chidiebere Dike | Publicado: 2015-08-21T05:09:00-07:00

Constitution is the express or written will of the people. The people make and own the constitution. The constitution recognizes the people as the sovereign and the will of the people as expressed in the constitution is supreme and sovereign. This implies that whenever, there is supremacy of the constitution, the people are supreme and their will, which is the constitution, is supreme and binding on all authorities and persons. The people are the sovereign entity and the final authority in the country, the 1999 constitution of Federal Republic of Nigeria (CFRN) in section 14(2)(a) recognizes the people as sovereign in Nigeria. The government has to submit itself for assessment by the people at general elections. The people if satisfied will renew the mandate of the government and let it remain in power. Hence, as a result of this, there has been stringent call by many people of Nigeria for a new constitution because of the believed origin of the current constitution, as General Abdusalam Abubakar, the then Head of State took steps to lead the military out of government. He hurriedly couple a new constitution made to usher a new democratic order. Some Nigerians remained perturbed by the loss of their sovereignty to a document they believed was purportedly made for them by the Military and therefore, lacks the quality of essential constitution, the need for it to be autonomous. The 1999 Constitution is widely believed to be misleading in the light of its preamble “We the people of Federal Republic of Nigeria do hereby make, enact and give ourselves the following Constitution”. And in place of the 1999 Constitution, agitation for a constitutional conference, which will enable the constituents, Nationalities within the federation to sit down and determine the bases for their existence.
We should bear in mind that from the history of the formulation of the constitution in Nigeria, which began by the Clifford Constitution in 1922, has the basic feature of the introduction of the elective principle, which gave the eligible inhabitants of coastal town of Lagos and Calabar, an opportunity for expressing themselves and to a reasonable extent influencing the legislative machinery of the country.


The Richard Constitution of 1946 established central legislative council comprising of both Northern and Southern province and regions to legislate for the whole country to ensure peace, order and good government.
The 1951 Macpherson’s Constitution involved both Nigerian representatives and British officials in several Constitutional Conferences within and outside Nigeria between 1949 and 1950. The first was the constitutional drafting committee headed by the chief secretary, Sir Hugh Foot, and the second as the famous all Nigerian constitutional conference at Ibadan in 1950 under the chairmanship of Attorney-General, Sir Geral Howe. The constitution, which came into effect on 30th June 1951, empowered the existing regional government (House of Assembly of States in section 4(1) & (6) 1999 Constitution) in the North, East and West to legislate on certain specific matters, while executive powers of the region covered in all matters. The constitution made provision for the establishment of an executive council for each region and for the central government as the principal instrument of policy referred to the council of ministers, including twelve Nigerian ministers without portfolio (Federal and State Executives in section 5(1)(a) & (2)(a) of 1999 Constitution).


The Lyttleton Constitution of 1954 tried to resolve the crises associated with Macpherson constitution, which eventually led to its collapse. The colonial authorities in other to remedy the situation organized two constitutional conferences between August 1953 in London and January 1954 in Lagos under the chairmanship of Oliver Lyttleton, who was the then secretary of state of the colonial government. These conferences resulted to the promulgation of a new constitution for the country in 1954. The highlights of the constitution is the introduction of federalism in Nigeria, section 2(1) CFRN 1999, which states that “Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria”. Thus Nigeria became a federation that comprises of five component parts namely the Northern, Eastern and Western regions, while Southern Cameroon and the Federal Territory in Lagos came under the direct control of the central government section 297(1), 297(2), 298, 299 CFRN 1999.  There was provision in the house for a Speaker and Deputy Speaker as the presiding officers in Lyttleton constitution, which corresponds to section 50(1) CFRN 1999, that says There shall be- 
(b), a Speaker and Deputy Speaker of the House of Representatives, who shall be elected by the members of that House from among themselves.
There was also the introduction of direct election and the elevation of the lieutenant governors in the regions to governor, which is also applied in section 5(2) CFRN 1999, which states that “Subject to the provisions of this constitution, the executive powers of the state-
(a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the Public Service of the State; and 
There was also an establishment of permanent secretaries in both the regional and federal levels in Lyttleton constitution, which is represented in section 208(2) CFRN 1999, which states that “The offices to which this section applies are, namely-
(c) Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State howsoever designated, and
There was also the establishment of ministers by the Governor-General for the federating units, which included southern Cameroon. And the 1999 constitution in section 147(1) states that “There shall be such offices as the Ministers of the Government as may be established by the president.  


1958 marked the all-Nigerian constitutional conference between September 29, 1958 and October 27, 1958. All the registered political parties in Nigeria participated in the conference and the highlights of the conference was the inclusion of the fundamental human rights in the post independence constitution, which is carried along to the 1999 constitution of Nigeria. And that adequate provision should be made on the procedure for amending the constitution and for altering the regional boundaries inserted in the constitution and this is provided in section 9(1) CFRN 1999. The conference decided on a unified police force for the entire federation under the supervision of the inspector-general of police appointed by the federal government. The 1999 constitution simply provided section 214 and section 215(1)(a) CFRN 1999 to cover for these provisions and they respectively stated thus “There shall be a Police Force for Nigeria, which shall be known as the Nigerian Police Force, and subject to the provisions of this section no other police force shall be established for the federation or any part thereof.” And 215(1) “There shall be-” (a) “An Inspector-General of Police who, subject to section 216(2) of this Constitution shall be appointed by the president on the advice to the Nigeria Police Council from among serving members of the Nigeria Police force. 

The 1960 Independence Constitution was a by-product of the 1957 and 1958 London Constitutional Conferences. The features of 1960 independence constitution were as follows; it retained the federal system of government, which the 1999 constitution verbally put down in section 2(2) and it states that “Nigeria shall be a Federation consisting of States and Federal Capital Territory. The constitution provided for fundamental Rights in line with the agreement reached in 1958 London constitutional conference. It contained all aspects of 1948 Universal Declaration on Human Right such as right to life, property, personal liberty, freedom of movement, religion, etc and it is provided in section 33-46 CFRN 1999.  The Independence Constitution also provided for Nigerian Citizenship by classifying citizenship by birth, registration, and naturalization respectively, which the 1999 constitution made provision for in section 25, 26 and 27.
Under the Independence Constitution, members of the higher bench comprising of judges of the Supreme Court and higher Courts were to be appointed on the advice of the Judicial Service Commission, established for the purposes of recruitment, promotion and discipline of members of the bench. It provided that judges could only be dismissed on the grounds of inability to discharge the functions of their office or for misbehavior and section 271(1) CFRN 1999 provided for this. The Independence Constitution provided for Public Service Commission for the Federal and Regional Government and it was also implemented in section 169 and 206 CFRN 1999 respectively, which says “There shall be Civil Service of the Federation” and “There shall be for each state of the Federation a Civil Service.” The 1960 Constitution had it that the regional ministers appointed by the governor had portfolios assigned to them, and this is also provided for in section 194 CFRN 1999. It also provided for revenue allocations between the center and sub-national units through the creation of distributable pool fund, and this is maintained in 1999 Constitution of Nigeria in section 162(1). And finally, the Supreme Court in 1960 Constitution was given the power for judicial review, which the 1999 Constitution did not repeal nor did the constitution  provide for it but has become a practice in governance.


The 1963 Republican Constitution came as a result of disagreement between Prime-Minister and the Governor-General over the transfer of certain powers and function and there was need for a constitutional change, which resulted in the Republican Constitution of Nigeria 1963. And between 25th May and 26th July 963, there was all-Nigerian constitutional conference held in Lagos, which was summoned by the Prime-Minister. The amendment in 1963 constitution also made provision for the office of the President to take the oath administered by the Chief Justice of Nigeria section 130(1) CFRN “There shall be for the federation President,” and section 140(2) CFRN 1999, “The oath aforesaid shall be administered by the Chief Justice of Nigeria or the person for the time being appointed to exercise the functions of that office”. It provided for the National parliament consisting of the House of Representative and the Senate. And the constitution established a consolidated revenue fund where all revenue accruing to the federation should be paid into, and shared among the tiers of government.    And so from the detailed analysis Constitutional Development in Nigeria, it is obvious that the Constitution of Federal Republic of Nigeria 1999 did not fall from heaven, Exodus chapter 31:18. It is an end product of various constitutional conferences, which had the purpose of framing a constitution that will meet the need and aspirations of the people of Federal Republic of Nigeria. 
According to Barr. Prince U Amadi, Nigerian Constitution is a constitution which has a cumbersome or long amendment procedure. The enactment and amendment of simple law is usually by simple majority vote in the relevant parliament that has authority to make or amend such law. However, the procedure for amending a rigid constitution like that of Nigeria may include a two-third majority vote of the Central Government Legislature, as well as a two-third of all the State Legislatures in Nigeria, and sometimes it is ratified by the people in a referendum or by constitutional conference. And so from the above explanation of amending a rigid constitution, it is apparent that the undemanding way among them all to amend the Nigerian Constitution is by ratification through a referendum or by constitutional conference but the question remains, which one of them will give a true desired yearning of the people. In my opinion, issues pertinent to the interest of a zone, region, ethnicity, tribe and not the interest of the country in general that is resolved through a referendum will favour the zone with higher population rate and the other regions, tribes or ethnic groups may combine forces to defeat the purpose of the referendum. And moreover, to organize a constitutional conference involves a lot of money to assemble, accommodate and feed representatives from various states of the federation for as long as the conference will hold, and such conference is usually linked with sentiments, resentment and serious disagreements.  In my opinion, the best option for amendment of Nigerian constitution is the most cumbersome process of them all, which is the two-third majority in the Federal Legislature and in State Legislatures as well, because it will produce a true picture of the interest of each state through their representatives in the various House of Assembly of sates. And it will cost almost nothing because no additional money may be spent on the legislators whose duties it is to amend the Nigerian Constitution as provided in section 9(1) CFRN 1999, which states that “The National Assembly may, subject to the provisions of this section, alter any of the provisions of this Constitution. And so until the 1960 Constitution, I strongly believe that the 1999 Constitutions of Federal Republic of Nigeria is autochthonous because there were conferences held by Nigerians that argued what should be put in the constitution and what should not, and all these inputs are reproduced in the 1963 Constitutional Conference, which was the only conference that was summoned by a civilian government in Nigeria and subsequently, the inputs in the 1963 Constitution were also noticeable in 1999 Constitution.


The 1979 and 1999 constitutional conferences were the only conferences that were summoned by military governments in power. The 1999 constitution has virtually everything that was contained in the previous constitutions, except that 1979 Constitution made all laws relating to taxation to come under Federal jurisdiction and with some major additions. On October 6, 1977 the federal military government made steps towards transition to democratically elected government when it constituted an enlarged Constituted Assembly composed of 230 members drawn from all part of the federation. Section 140(1) CFRN 1979 provided for a Federal Electoral Commission whose function was to divide the country into electoral constituencies both state and federal, on the basis of 1963 population and supervise all elections. Section 149(3) and section 14(4) of 1979 constitution provides for parties forming their government and to tackle the problem of suspicions and fear of ethnic domination of government and public service by a particular geo-political group. After going through the 1979 Constitution, I am now of the opinion that the Constitution of Federal Republic of Nigeria 1999 is not autochthonous because the radical and major changes or inputs in the constitution was made after the 1979 Constitutional Conference and it was summoned by the military government. Even when the civilians were called to draft the constitution, the content of the final document was influenced by the interest of the military government in power. Take for instance section 6 CFRN 1999, which is that the power of establishing inferior courts is vested on the National Assembly and State Houses of Assembly. And what does the law establishing customary court in Rivers State say on the appointment of the chairman of a customary. It states that a customary court shall consist of a chairman and two other members all of whom shall be appointed on full time bases by the Military Governor acting on the recommendation of the Adversary Judicial Committee. And section 5 of the same Edict No. 8 of 1987, states that “A person holding office as a Chairman or a member of the Customary Court shall be remove from office by the Military Administrator acting on the Advice of the Advisory Judicial Committee. Taking a look at the attributes of a Written Constitution with example from that of Nigeria; it is usually written down in a single document, and can be easily procured and consulted on any issue covered by it, although other document or statutes may be incorporated into it by reference in its provisions such as the Land Use Act, National Youth Service Corps Act, Code of Conduct Bureau and Tribunal Act and so forth. Section 15(5) CFRN 1999 without the amendment in Item 60 Exclusive Executive list, which empowers the ICPC Act the and Fundamental Procedure Rule, which gives deducibility to the constitution, implies that section 15(5) authorizing the ICPC Act to fight against corruption or eradicating it is non-justiciable or that the ICPC Act and the Fundamental Procedure Rule are null and void as it will contradict section 6(6)(c) of the Constitution of Federal Republic of Nigeria. And so adopting the Customary Court of Rivers State Edict No. 8 of 1987 without amendment to the words Military administrator implies that the Chairman can only be appointed by a military administrator and it contradicts section 1(2) CFRN 1999 that states that “The federal Republic of Nigeria shall not be governed, nor any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this constitution”. I will say that the military influenced the 1979 and 1999 constitution to a great extent to favour their stay in office; therefore I will conclude that the 1979 and the 1999 Constitutions summoned by the military is not autochthonous, and so in pari pasu, it made the 1922 constitution up to 1960 not to be autochthonous because the colonial masters that summoned these constitutions also made them to favour their stay in office. The only constitution that was done by the civilian administration in Nigeria was the Republican Constitution of 1963. The 1963 constitution was a replica of the previous ones; the administrators of the 1963 government were mainly occupied with securing their offices as president and prime-minister. And so the 1999 Constitution needs some amendments.

The major accomplishment of 1999 Constitution was to make chapter II and IV of the constitution, which deals on the Fundamental Objectives of the State and Fundamental Rights to be non-justiciable. That is, an individual who feels he or she is denied of these rights cannot seek justice in a court of justice.
Many people have various reasonable contributions to make that may take the country forward, after all is stated in Section 59(2) of the Constitution of Federal Republic of Nigeria 1999 (CFRN) that “A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by this section and section 59 of this Constitution, assented to it, and in unity with the provisions of this section”. (A bill can be sponsored to either of the Houses by citizens of this country). Different arguments have been made as to the autochthonous nature of the constitution of Nigeria. The society is dynamic and evolutionary, and the indomitable Lord Denning Mr. succinctly captured this point when he said 
“It must be remembered that it is not within human powers to foresee manifold sets of facts which may arise, and even if it were, it is not possible to provide for them in terms free from all ambiguities. The English Language is not an instrument of Mathematical precision”. 
Hence, there is the need to constantly review and amend the constitution to bring it up to date with the present realities so as to reflect the contemporary will of the people. I, Damian Chidiebere Henry Dike, hereby make my submission for the amendment of these sections.
By virtue of section 26 CFRN 1999, which deals on citizenship by registration, says that- 
26(1) CFRN 1999, “Subject to the provisions of section 28 of this Constitution, a person to whom the provisions of this section apply may be registered as citizen of Nigeria, if the president is satisfied that-
(a) He is a person of good character
(b)  He has shown a clear intention of his desire to be domiciled in Nigeria; and
(c) He has taken the Oath of Allegiance prescribed in the Seventh Schedule to this Constitution.
26(2) CFRN 1999, The provisions of this section shall apply to-
(a) Any woman who is or has been married to a citizen of Nigeria.
(b) Every person of full age and capacity born outside Nigeria any of whose grandparents is a citizen of Nigeria.
The issue here is on section 26, sub (2), paragraph (a). To understand this section better we will have a look at this legal poser by Barr. John U Eke.
Legal poser. 
Kehinde (Female) and Taiwo (Male) are Identical twins, whose parents are from and indigenous community in Ondo State of Nigeria. They were born in USA and had their education in USA where Taiwo met and married a young white Americn lady called Mo from a rich family engaged in petroleum business. Kehinde got to know Mo’s brother Garry who fell in love with Kehinde and later married Kehinde. Many years later they all decided to return to Nigeria to live and continue the oil business in Nigeria (The 6th largest oil producing country of the world). Kehinde discovers that as she put it, the Nigerian Government is discriminating against her and Garry by not giving them the same rights as her brother Taiwo and Mo. Kindly advice Kehinde and Garry as to Citizen
(I) Garry’s citizenship right
(II) Whether there is a breach of Kehinde’s fundamental and other rights?
(III) Is Mo and her brother Garry entitled to Nigerian citizenship? If so what type? 
Solution. 
(I) From the provision of section 26 on citizen by registration, Garry does not have any citizen right in Nigeria but his sister Mo has citizen rights in Nigeria because the Constitution of Federal Republic of Nigeria has said so in 
26(2) CFRN 1999, The provisions of this section shall apply to-
(a) Any woman who is or has been married to a citizen of Nigeria. 
The section intentionally omitted the word man; the wording should have been any woman or man.
(II) There is breach of Kehinde’s fundamental and other right contained in section 42(1) CFRN 1999 of Chapter IV of Fundamental Rights of this same constitution, states that “A citizen of Nigeria of a particular community, ethnic group, place of Origin, sex, religion or political opinion shall not, by reason only that he is such a person. 
(III) Mo and Garry are entitled to citizen by registration and naturalization respectively. Garry is entitled to citizenship by naturalization contained in section 27 CFRN 1999. And Section 27(2) of this section states that “No person shall be qualified to apply for the grant of a certificate of naturalization, unless he satisfies the president that-
(g)(II) He resided in Nigeria for a continuous period of twelve months, and during the period of twenty years immediately preceding that period of twelve months he has resided in Nigeria for periods amounting in the aggregate to not less than fifteen years.   
In the case of Brown v. Board of Education; Linda Brown, the plaintiff appellant in the case, then a little girl, applied for admission to an all white in the rural Tupeka, Kansas, USA, where she lived with her parents, and was refused admission on the ground of colour, being an African American. The National Association for the Advancement of Coloured People (NAACP) took up the matter as a legal aid case and brought action in court challenging the refusal. Thurgood Marshall the NAACP and who later became the first African American justice of the Supreme Court where the Supreme Court led by Earl Warren, lawyer, former Attorney-General, and former Governor of California, and Chief Justice of United States, in an unanimous decision on May 17, 1954, outlawed racial segregation by overruling Plessy v. Ferguson decided in 1896 and held: in favour of Brown, that racial segregation in public schools was unconstitutional and a violation of the 14th Amendment clause of the constitution of the United States of America, which guarantees to all citizens equal protection of the laws of the United States, and the citizenship right are to be abridged. And so what are we still waiting for before we will amend, repeal, annul or void section 26 of CFRN 1999, as it is unconstitutional and violates section 42(1) CFRN 1999 and the citizenship right in Nigeria.  (2) Another provision of the constitution that should be looked into is the section concerning the duty or function of the Vice-President of Nigeria. Section 141 CFRN 1999, says “There shall be for the Federation Vice-President”. Section 142(1) CFRN 1999, states that “In any election to which the forgoing provisions of this part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of the Vice-President if the candidate for election to the office of President who nominated him as such associate is duly elected as president in accordance with the provision aforesaid”.
The constitution recognized the office of the President and office of the Vice-President but it assigned no function to the office, unlike the Vice-Presidents of some other countries, including that of North America that has functions assigned to their Vice-Presidents. In the case of A. G Federation and Abubakar, the Supreme Court posited that “The Nigerian constitution does not assign any specific role to the Vice-President. The role which the Vice-President is to perform is limited to what the President assigns to him just like the Ministers who are appointed by the President” (but the Vice-President is not appointed like the Ministers). And it must be taken into cognizance that if a function is to be created for the Vice-President, amendment to accommodate the Vice-President must be made to Section 5(1)(a) CFRN 1999, which says “Subject to the provisions of this Constitution, the executive powers of the Federation-” “Shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and” Bear in mind also that an amendment to section 5(1)(a) CFRN 1999 will entail the amendment of some other sections of this constitution that has been assigned to the President.