CHAPTER SEVEN

CONSTITUTION AND CONSTITUTIONALISM IN NIGERIA

INTRODUCTION

In every human society, state or nation, there must be laws biding them for the purpose of peace and order, the absence of such would result to chaos.  In every government; there are basic principles guiding the system, stating the institutions, goals, belief, with well-defined relationships between individuals, the state, and the institutions.  The laws are called constitution.

THE MEANING OF CNSTITUTION

Constitution has been defined and expressed in so many ways:

A. V. Dicey stated that a constitution is meant to be a document, having a special legal sanctity which sets out the framework and principal functions of the organs of government of a state and declares the principles governing the operation of these organs.  This definition is only referring to a written constitution.  A constitution can be written or unwritten.

Austin Ranny stated that a constitution is a whole body of fundamental rules written or unwritten, legal and extra-legal according to which a particular government operates.  In other words, constitution is the means by which a government must rule a given state.

In a nutshell the constitution of any given country is the legal principles of laws, which must and should guide the organization/institution and operations of government in such a country.  Meaning a constitution should state the duties and functions of the various arms of governments, as well as the rights and privileges of the citizens.

A constitution is thus the accepted principles of laws guiding the establishment and operations of government as well as the rights and privileges of the citizens in a given country.  These principles and laws are meant to checkmate and regulate individual and government institutions.  In line with this, every government must be guided as well as organized according to the constitutions.  The laws of the constitution are supreme over any other laws of that country.  A government is said to be a constitutional government if it governs according to the laid down principles of laws.

CLASSIFICATION OF CONSTITUTION

A constitution can be classified based on the source, its amendment and the form of government operating in that country.  Based on this a constitution could be written or unwritten, flexible or rigid, unitary or federal in nature.

- Written Constitution:  

A written constitution down in a single document or in a few documents slating how a given country must be operated and how the institutions of government should be structured and established including the rights and privileges of its citizens, Nigeria’s first written constitution was in 1954 when the federal system of government was adopted.

- Unwritten Constitution:

An unwritten constitution on the other hand refers to a situation where the fundamental principles of laws are not laid down in any form of document, but rather are followed as a matter of usage.  An example of such a constitution is the British constitution.  However, noteworthy is the fact that a written constitution have an unwritten elements, in reality constitution in general has both written and unwritten elements.

- Rigid Constitution:

A constitution is also classified according to the ease or difficulty involve in the process of amendment.  A rigid constitution requires a lengthy or difficult process to alter or change.  This process is usually clearly stated in the constitution.  A good example is in Nigeria, where the process of amending the 1979 and 1999 constitution is time consuming.  For instance, the acceptance of the proposal of a new state must be supported by two-thirds majority of the members of not only the National Assembly, the House of Assembly from the affected state but also form the two-third majorities in the local government councils as well as two-third majority of the people in the area through a referendum.

- Flexible Constitution:

In the case of a flexible constitution the reverse is the case, the method of amendment is as easy as that of changing an ordinary law.  Countries like Britain and Italy are good examples of countries operating a flexible constitution.

- UNITARY OR FEDERAL CONSTITUTION

A constitution is also classified based on the operational form of government in the country.

- Unitary Constitution:

In this form of government, the central government is supreme over the whole, meaning all other districts within that country is organized and administered by the power vested in the central authority.  Unitary form of government simply means there is concentration of political power in the hand of one sovereign authority.  Authority only comes from one source every other political power is subjected to that central authority.  A unitary constitution centralize all the power at the center.


- Federal Constitution:

This is a situation where power of government is distributed one level of government and another.  Federation is made up of smaller states joined together to form one larger state.  The federating units in a federal state are called states; these states have forfeited their sovereignty to a central authority.  Both the federal and state authority derives their powers from the constitution.  The form of a nation’s constitution depends on the nature of the country being governed:  the history, geographical position, social structures, religious belief, social values, ethnic diversity and economic development.  Whatever form of government a country chooses will determine the classification of the constitution.  Nigeria is a federal state therefore operates a federal constitution.

CONSTITUTIONAL DEVELOPMENT IN NIGERIA 1900 – 1960

The revoking of the charter that had empowered the Royal Niger Company to administer  the Niger districts led to their protectorate of Northern Nigeria.  Sir Fredrick Lugard was made the high commissioner who introduced the indirect rule system there.  Also the Oil Rivers Protectorate was also proclaim as the protectorate of Southern Nigeria with Ralph Moor as its High Commissioner.  This now made Nigeria to have three separate entities:  The Lagos Colony, the Northern Protectorate and the Southern Protectorate.

The Order in Council 1914

In May 1906 the colony of Lagos and the Southern Protectorate of Nigeria were merged together to form the colony and protectorate of Southern Nigeria, with Sir Walter Egerton as the Governor.  In January 1914, the Northern Protectorate was amalgamated with the Southern Nigeria Protectorate. With Lord Fredrick Lugard as the Governor General assisted by an administrator for \Lagos colony and two Lieutenant Governor for the Southern and Northern provinces.  A larger legislative council was established with thirty six members made up of the following:-

The 13 unofficial members.  The 13 unofficial members were made up of the four nominees by the Governors – General to represent the interest of Commerce.  Shipping Mining and Banking.  One to represent Lagos chambers of commerce, one for Calabar Chamber of Commerce and one to represent Chambers of Mines.  The six other nominees represent the native population and were nominated by the Governor. 

The Lord Fredrick Lugard constitution referred to as the order in council was the first constitutional attempts in the Nigeria.  After setting a larger legislature with more representation, he equally set up a larger council known as the Nigerian council for the nearly united country, this council was mainly a deliberative body.  Any member could propose any question for debate provided he has support of two members and the Governor-General has been notified ten days before.  If the Governor-General agrees with it, then it could be debated upon.  This does not mean that a resolution can be passed on it, because it has no legislative or executive authority and also the Governor – General cannot give effect to such bill.  The council is only (was) confined mainly to the Governor-General’s annual address.

THE CLIFFORD CONSTITUTION OF 1922

The Clifford Constitution could be said to be the first workable constitution in Nigeria.  The Clifford constitution established an executive council made up of only British officials and also created a 46 men legislative council with a limited function to only the colony and Southern Protectorate.  Three (3) of the members were elected from Lagos and one (1) elected from Calabar, this led to the activation of political activities which brought about the formation of some political parties like the Nigerian National Democratic Party (NNDP).  The Nigerian Youth Movement (NYM) succeeded by the National Council of Nigeria and the Cameroon’s (NCNC).  Unfortunately, the North had no constitutional representative so the Nationalist Movement opposed the constitution.  The West African Students Union played a very important part in pressurizing for a constitutional reform, which was proposed by Bernard Bourdillan who was Nigerian Governor-General between 1935 and 1943.  sir Richards completed the work on the new constitution and implemented it.

THE RICHARDS CONSTITUTION OF 1946

The 1946 Richards Constitution was aimed at unifying the diverse people of Nigeria.  The constitution provided for three regions and established Regional Houses of Assembly as well as house of Chiefs. Though only the Northern Region had a bicameral legislature that is a house of assembly and all house of chiefs.  The Western and Eastern Regions had unicameral legislatures each having and the house of assembly.  The Richard constitution brought the South and North together under a single legislative authority.  This is very significant however the constitution failed to satisfy the aspiration of Nigerian.  It had the problem of limited participation and representation, this led to the creation of the McPherson constitution in 1951.

MCPHERSON’S CONSTITUTION OF 1951

Nigeria fully participated in the making of the McPherson constitution.  The existing legislative council was replaced by larger and more central legislature called the house of representatives with the power to legislate.  For Nigerian noteworthy, is the fact that the members of the legislature were elected.  For the first time Nigerians constituted the majority of the federal and regional executive councils.  The two councils became the main instrument of policy making it possible for the representatives to participate in the ruler-ship.

The uniqueness of the McPherson constitution is that the regions became not just administrative units, but also political entities exercising both legislative and executive powers.  Unfortunately, there was a defect in the political structure that posed a big problem to nation building.  The collapse of the McPherson’s constitution was caused by many crises such as disagreement between the North and the South over the issue of “self government in 1956”.  The Kano riots of 1953 in which many Southerner were killed, the crises within the NCNC in the Eastern Region and the resignations of AG and NCNC ministers in the federal cabinet.

LITTLETON’S CONSTITUTION OF 1954

Oliver Littleton, who was the colonial secretary, had a meeting with the Nigerian Governor Sir John McPherson and some top officials.  The outcome of this meeting in April, 1 1953 gave birth to clear principles based on the relationship between the imperial government and the Nigerian Nationalist in 1954.  The uniqueness of the Littleton constitution is that in this constitution, Nigeria emerged as a federation with three Regions independent of the centre.  Lagos became Federal Capital.  Territory Public service and the judiciary were regionalize.  Thus each of the regions had a premier, a cabinet and a legislature.  The Governor-General and the regional governor had to be members of the legislature.  A federal supreme court was created at the centre while a high court of Lagos and a high court for the regions and that of Southern Cameroon’s were established.  The Western and Eastern regions achieved, self-government on august 1959.

The Littleton’s Constitution created the post of primary ministry with Sir Abubakar Tafawa Balewa, of the Northern People Congress (NPC) being installed in 1959.  this created a way for independence in 1960.   Noteworthy, is the fact that the 1954 constitution more or less led to the establishment of the Federal Republic of Nigeria in 1963.  However, the electoral procedure was not uniform and this became an issue that needed a changed.

1960 INDEPENDENCE CONSTITUTION OF NIGERIA

This constitution brought some changes in the federal structure of Nigeria. The first obvious change was that the Governor General who before now was an agent of the colonial masters become a Head of State with ministers, but still performing his functions in the queen’s name. The regional Governor also had an executive body. Power was divided between the federal and Regional levels of government.

There was division of power between the federal and Regional government. An exclusive list contained solely federal matters and a concurrent list contained matters relating to both the federal and Regional governments deliberations. In a situation where there were contradictory views the federal legislative power would prevail. Noteworthy is the fact that there were legislative authorities in which the Regional government had the sole power.

The constitution made provisions for the place and appointment of Supreme Court Judge but only on the advice of the Judge Service Commission. The condition for the amendment of the constitution was also included.

1963 CONSTITUTION

A constitutional conference held in Lagos in July, 1963 brought about the issue of Federal Republic passed into law by the Federal Parliament in September of that same year to be enforced on October 1st 1963.

The 1963 Constitution changed a lot of things, for instance the position of the Governor-General was replaced by an elected president whose constitutional functions were the