The jury

Absence of state constitution has given Nigeria a patched-patched federal system of government —Ayorinde

Judge Akintunde Akinyele (right), presenting an award to Chief Bolaji Ayorinde SAN during the third lecture and symposium in honour of late Chief Theophilus Adeleke Akinyele, held at Theophilus and Elizabeth Akinyele Library, Theo Tower, Akinyele Way, Bodija, Ibadan. Photo: Yemi Funso-Oke

Legal luminary and Senior Advocate of Nigeria (SAN), Chief Bolaji Ayorinde, has made a case for state constitution, describing it as important democratic governing document which can be important if its role in the federal system of government is understood properly. In this report by YEJIDE GBENGA-OGUNDARE, the senior lawyer spoke on the symbolism and legality of state constitutions in Nigeria, going down the memory lane of constitution amendment in the country.

State constitution is an important democratic governing documents and can be all the more important if its role in the federal system of government is understood properly. As such, a renewed appreciation of state constitution 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.”

These were the words of Chief Bolaji Ayorinde (SAN) while speaking on the topic, ‘The symbolism and legality of state constitutions in Nigeria’ while delivering a keynote lecture at the annual symposium in honour of the late Chief Theophilus Adeleke Akinyele OON, which was inaugurated by the Theophilus and Elizabeth Akinyele Foundation in 2021.

According to him, though there is no provision for a state constitution in the Constitution of the Federal Republic of Nigeria (CRFN),1999, 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 good governance.

Speaking on the American federal system which, he said, the Nigerian federal system of government copied, he explained that it rests on two constitutional pillars; the 50 state constitutions and the United States Constitution (National Constitution), adding that “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, unbalance 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 constitution 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 Nigerian case

Speaking on the Nigerian case, he said Section 2 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria and subsection (2) provides that Nigeria shall be a Federation consisting of states and a Federal Capital Territory adding that it is therefore safe to state that Nigeria like the United States of America is both a ‘Federation’ and a ‘Republic’.

According to him, federalism connotes an arrangement in which political powers are constitutionally shared between the central government and the federating units and 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 center 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,” he said.

Survey of constitutional development in Nigeria

To determine the symbolism and legality of state constitution in Nigeria, he said, “one must begin by examining the various constitutions enacted in Nigeria from Independence Constitution to the Current CFRN 1999, adding that most of these constitutions were preceded by the setting up of Constitution Drafting Committees or Constituent Assemblies and Constitutional Conferences. “For instance, the 1960/1963 Constitutions provided for a regional constitution, 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 examine the debates and issues that formed the fulcrum of the draft constitution 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. It decided on 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 center with limited powers. The 1960 Constitution included the following: each region was permitted to enact its own Constitution, Coat of Arms, and Motto; (when did the regional constitution provided for in the 1960 constitution jetisoned and why?). Each region established its own separate, semi-autonomous Mission in the U.K., headed by an’Agent-General’; Matters that were not allocated to the center exclusively or to center and regions concurrently were reserved for regions under in the ‘residual list’; and The revenue arrangement ensured that the regions had the resources to govern.

Both the Federal and the Regional Governments operated a bicameral Westminster Model of parliamentary system of government. The Regions and their boundaries were safeguarded by an elaboration of boundaries. Appropriate measures were also taken to protect and entrench important constitutional provisions, such as those relating to the Federal Framework, Fundamental Rights, Citizenship and Revenue Allocation.

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. In order to protect public funds, the Parliament took some stringent measures such as placement of restrictions on withdrawals, debate, enactment of Appropriation Bill and monitoring of Audit Reports on the Accounts of the Federation.

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. The Supreme Court became the highest appellate Court instead of the Privy Council in London. Additionally, a National Police Force was provided for, in addition to the Native Authority Police.

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 at 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.

Murtala constitutional Initiatives

The new Military Government under General Murtala announced a 5-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. Members of the Committee were selected on the basis of two per State and were learned Nigerians in disciplines relevant to constitution-making. At the inaugural meeting of the Committee, the Head of State gave an insight into what the Supreme Military Council expected of the draft to be produced:

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. During the debates at the Assembly, the most controversial issues were those relating to the creation of new States; establishment of Federal Shari’a Court of Appeal; the ban on corrupt public officers from contesting for or holding public offices for some time, and the scope of the powers of the Constituent Assembly, i.e. whether it was to deliberate on the Draft Constitution or to proceed to enact the Constitution after deliberation. 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 (4) years.

National constitutional conference of 1994/95

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 organized opposition and sustained protests against military rule and militarism especially by individuals, groups and civil society organizations from the Southwest.

He abdicated in controversial circumstances on August 27, 1993 and installed a very successful and 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. Nation-wide 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. 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 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.

1999 constitution’s silence on state constitution

The Constitution of the Federal Republic of Nigeria is silent on the issue of state constitutions. The question that begs for answer is whether the silence of the 1999 Constitution on state constitution could mean that the power to make state constitution is a residual power that is

reserved for the States Houses of Assemblies to legislate on. 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 I & II

Schedules to the 1999 Constitution (i.e the Exclusive List, Concurrent List and the Residual List) will reveal that no reference whatsoever was made of state constitutions.

This constitutional silence has further compounded our problem of determine 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 Constitution of the Federal Republic of Nigeria, 1999 vests legislative powers of a state of the Federation in the House of Assembly of the state 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. Not only can the legislature enact laws, it can also amend any existing law passed by that arm of government as circumstances may permit.

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