CONSTITUTIONAL DEVELOPMENTS IN NIGERIA - LECTURE NOTE

CONSTITUTIONAL   DEVELOPMENTS   IN     NIGERIA

Kalu Ezera, in his seminal work, Constitutional Development in Nigeria gave us Morel’s unauthorized scheme for Amalgamation: To Morel, the objects of amalgamation would be four in number, namely:

·   Financial management directed not only to meeting present needs but to making provision for the future.

·   The right sort of man to fill the important and onerous post of Gov-General

·   The division of the country into provinces corresponding as far as possible with natural geographical boundaries and existing  political conditions ; involving as few changes as possible and

·   A comprehensive system of public works.

With the amalgamation of the territories hitherto referred to as Southern and Northern Protectorates of Nigeria by Lord Lugard, began the constitutional development in Nigeria.

Nigerian    Council   of   1914

The amalgamation of Nigerian Protectorates was done through three constitutional instruments namely;

·   The (Nigerian Council) Order in Council  (1912)

·   The Letters Patent (1913)

·   The Nigerian Protectorate Order –in- Council(1913)

On becoming governor of the amalgamated Nigeria in 1914, Lord Lugard established the Nigerian Council. It has been noted that the establishment of this council marked a watershed in the history of constitutional development in Nigeria.

REASONS FOR CREATING THE NIGERIAN COUNCIL

·   It was necessitated by the fact that the existing legislative council of Lagos was too small to legislate for the newly created united Nigeria.

·   Lugard believed that a council with a larger number of representatives would enable the governor to get the feelings and opinions of every component unit that made up the country.

·   It must be noted that the council was merely a deliberative body without executive or legislative powers.

THE COMPOSITION OF THE NIGERIAN COUNCIL

·   The Council consisted of  16 members out of which 3 were official members,

·   7 were unofficial Europeans

·   6 were unofficial Nigerians nominated by the governor himself.

·   The 6 Nigerians were made up of 2 Emirs from the North, The Alafin of Oyo from Yoruba land, one member from Lagos, Calabar and Benin area.

The Composition of the Legislative Council of Nigeria

·   There were 26 officials- 23 government officials and three nominated.

·   There were 4 elected members- 3 from Lagos and 1 from Calabar.

·   Nominated unofficial members varied in number from 13 to 17 out of which 6 were Europeans nominated by commercial Interests.

·   The nominated Nigerians came mainly from the colony, Ondo, Oyo, River District, Igbo ethnic group, Egba land, Warri and Benin

  

THE CLIFFORD CONSTITUTION OF 1922

·   This constitution adopted in 1922 derived its name from the then governor of Nigeria, Sir Hugh Clifford who took over from Lord Lugard.

·   The constitution introduced new legislative and executive councils.

·   Northern Nigeria was not represented in the new Legislative council as it comprised members from the south alone

·   The governor retained the power to legislate for Northern Nigeria

·   There were 26 officials in the Legislative Council

·   Four  elected members and 15 nominated members.

·   It was called the Legislative Council of Nigeria.

·   This Legislative Council was in existence for 44 years.

·   The elective principle was introduced under this constitution. This thus galvanized the formation of political parties and political activities.

·   A single executive council for Nigeria was first created under this constitution. It was composed of 12 members, all of whom were Europeans.

DEMERITS OF THE CLIFFORD’S CONSTITUTION.

·    It isolated the North from the other part of Nigeria. In other words, it failed to bring together in one legislative house, even after the amalgamation. This situation lasted for twenty-four years.

·    A large percentage of Nigerians were disenfranchised by the limitation of franchise to Lagos and Calabar.

·    The council met very infrequently for about 8 days on the average, every year.

·    The Governor acted like a school headmaster during the proceedings of the legislative council.

·    There were many more officials and nominated members than elected members in the legislative council.

RICHARD’S CONSTITUTION OF 1946

Sir Arthur Richard was next as the governor; he effected the new constitution which later bore his name.

OBJECTIVES OF THE CONSTITUTION

·    A legislative council which would legislate for the whole of Nigeria as a single United Country.

·    Regional councils for the Northern, Western and Eastern Provinces comprising Houses of Assembly with the addition that in the Northern Province(to be constituted a Region) there would be a House of Chiefs;

·    The introduction of diverse representation of the people through the Native Authorities and the Houses of Assembly of the Regions in the Legislative Council; and

·    African majority both in the Houses of Assembly in the Regions and in the Legislative Council.

PROVISIONS OF THE CONSTITUTION

·   The Constitution came in to operation on 1 January 1947.

·   Laws for the whole of Nigeria became the responsibility of the Governor, with the advice and consent of the Legislative Council.

·   Apart from the Governor, there were forty-four members. The 28 unofficial members formed the majority in the Legislative Council.

·   Only four of the unofficial members were directly elected, three from Lagos and one from Calabar.

·   The Northern Region had a House of Chiefs, the Eastern Region and the Western Region each had a House of Assembly only.

·   In each House of Assembly, the unofficial members were in the majority. In the Northern House of Chiefs, there were only twelve second class chiefs, while the rest of members were first class chiefs.

·   The Chief Commissioner was the President of the House of Chiefs, while the Senior Resident was the President of the House of Assembly in the Northern Region. In the Eastern and Western Regions, the Chief Commissioner was the President of the House of Assembly.

·   The regional houses had no independent legislative power. A law concerning a particular region was sent to the legislature of that region from the Legislative Council in Lagos, for consideration and advice. The Governor could reject the advice of the regional legislature.

·   The Governor had reserved powers to act if the Legislative Council refused what he proposed to do. The Secretary of State for the Colonies must however, approves such proposals of the Governor.

·   One other Nigerian was added in 1949 to the only one appointed in 1943 as member of the Executive Council.

  

MERITS OF THE 1946 CONSTITUTION

·   Greater consideration was given to Nigerian opinion in the making of laws than under the 1922 Constitution.

·   The Northern and Southern leaders were brought together in one legislative house for the first time since the amalgamation of 1914.

·   It gave the division of the country into East, North and West the force of Law.

·   The Federal idea was the most popular feature.

DEMERITS OF THE 1946 CONSTITUTION

·   The constitution was promulgated with the least possible consultation with the Nigerian people.

·   The constitution failed by not giving Nigerians responsibility in the actual administration of their country

·   The governor still retained his veto powers thereby making a mockery of the legislative council.

·   The elective principle was still as restrictive as under the 1922 constitution.

·   There was widespread dissatisfaction with the constitution which led to its collapse in 1949.

·   The right to vote was limited to people with high income or property.

·   European interests were still represented in the Legislative Council.

MACPHERSON’S CONSITUTION OF 1951

Sir John Macpherson as the governor of Nigeria was reported to have had consultations with the different strata of the Nigerian society. The people from the village, district, provincial, and regional levels had discussions on what later became the 1951 constitution.

MAJOR PROVISIONS OF THIS CONSTITUION

·   Creation of a House of Representatives which comprised the governor, 136 members elected from the regional assemblies and 6 special members appointed by the governor.

·   The responsibility of House is to legislate for the whole country and its laws could override any regional legislation.

·   The establishment of a central executive council known as the Council of Ministers- its membership included the governor as president, 6 official members and 12 Nigerian ministers; 4 from each of the regions.

·   The ministers were without portfolios and were appointed by the governor on the recommendations of the 3 regional assemblies

·   Each of the regions was to establish an executive council consisting of Lt-Governor as president, 5official members and 9 ministers each.

·   Election was both by direct and indirect methods.

·   Only male tax payers votes in the North, whereas both males and females voted in the East and West.

  

DEMERITS OF THE 1951 CONSTITUTION

·   Three constitutional crises of 1953 led to the collapse of the 1951 constitution.

·   The first Crisis in the Eastern Region which arose as a result of the failure of the party to elect their Dr Nnamdi Azikiwe into the House of Representatives in Lagos and as a result of the expulsion of some party’s ministers because of the party’s unwillingness to continue to support the constitution.

·   The second Crisis was due to the motion moved by Chief Anthony Enahoro in 1953 at the House of Representatives for self government. The North opposed the motion on the grounds that Nigeria was not ripe enough and the date 1956 should be changed to “as soon as possible”.

·   The third was a riot in Kano in 1953 which was precipitated by second crisis the northerners’ attempt to revenge the disgrace meted out to Sardauna of Sokoto when motion was by southern delegates in House.

·   These three crises exposed the defects of the Macpherson constitution and led to its collapse.   

CONSTITUTIONAL CONFERENCES OF 1953/4

The collapse of 1951 Constitution brought in its wake a realization that the constitutional development of the country has to be hastened.

Accordingly, Mr Oliver Lyttleton, in his capacity as the Secretary of State for the Colonies invited Nigerian Political Leaders to London in August 1953. The London Conference arrived at some landmark resolutions on the way forward.

1953 London Conference Resolutions:

·    That a Federal System of government be established.

·    That Legislative powers be shared between the Federal and the regions,

·    That the regional heads be called governors while the head at the centre be called governor-general,

·    That Lagos should be separated from Western region and made a federal territory,

·    That self-government would be granted to those regions that desired it,

·    That a Conference be held in Lagos in 1954 to ratify a separate regional administration for the Cameroons if the people of the territory expressed their desire through a referendum.

1954 Lagos Constitutional Conference Resolutions:

·    That the Public Service and Judiciary be recognized,

·    That the autonomy be granted to Southern Cameroon,

·    That the principle of 1953 fiscal Commission on revenue allocation be implemented.

LYTTLETON CONSTITUTION OF 1954

Major Provisions of the Constitution:

·    A Federal Legislature consisting of 184 members, which were elected directly and independently of regional assemblies.

·    A Council of Ministers with the governor-general as the President, with three official members, three ministers from each region and one minister from Southern Cameroon.

·    It retained the bi-cameral Legislature for both North and West, and uni-cameral for the East.

·    The leader of the majority party in the regional assembly was expected to be appointed the regional premier.

MERITS OF THE 1954 CONSTITUTION

·    It provided a Federal System of government in Nigeria

·    Ministers were given portfolios,

·    The posts of permanent secretaries and the parliamentary secretaries were created.

·    It granted real law making powers to the regional legislatures.

·    It recognised the need for gradual integration of the various groups in Nigeria by passing power to the regions. Regional governments were given greater responsibility.

·    It rescued the Nigerian State from gradual collapse by rejecting the customs union proposed by the North.

·    It paved way for regional self government.

·    Separate elections were allowed into the regional and central legislative houses, unlike before which one was an electoral college of the other.

·    Ministers were given greater responsibility.

·    It recognised the need to appoint Premiers in the regions.

·    It properly decided not to recognise the right of a region to secede as requested by the Action Group.

  DEMERITS OF 1954 LYTTLETON  

   CONSTITUTION

·    It made no provision for a second chamber at the centre,

·    The post of Prime Minister was not provided for,

·    It did not provide for a unified electoral system throughout the country

·    The governor-general still retained his veto powers.

·    It introduced a revenue allocation formula which over emphasized derivation as against need and national interest. 

INDEPENDENCE AND POST INDEPENDENCE CONSTITUTIONS

Indeed, other constitutional conferences to take Nigeria to her independence took place between 1957 and 1958. There were resolutions from these conferences. These resolutions which included the following were later included into the 1960 independent constitution:

·    A house of Chiefs for the East,

·    A Bicameral legislature  at the Centre comprising of the Senate and the House of Representatives,

·    The creation of the office of Prime Minister,

·    A list of Fundamental Human Rights.

PROVISIONS OF 1960 CONSTITUTION

·    The governor-general, an agent of the British government, became the Head of State while the Prime Minister, who will be elected, became head of government.

·    A national Bicameral Parliament consisting of the Senate with 44 nominated members and the House of Representatives with 305 elected members,

·    The Powers of government were to be shared between the regional and federal governments.

·    Provision was made for judges of Supreme Court whose decisions were subject to confirmation by the judicial committee of the Privy Council in Britain

·    Procedures for amending the constitution were laid down,

·    Provisions for the Fundamental Human Rights were entrenched in the Constitution.

MERITS OF THE 1960 INDEPENDENCE CONSTITUTION.

·    The most important clauses of the Constitution, dealt with issues of :

         -Fundamental Human Rights,

         -The office of the Prime Minister,

        -The Council of Ministers,

       -The Supreme Court,

       -Revenue Allocation

The above clauses could not be altered unless the Bill in question was passed by a two thirds majority in both Houses of the Federal Legislature and by both Houses in at least two of the three Regions of the Federation.

·    The Basic federal framework could thus not to be altered at will.

·    Existing regions and their boundaries were safeguarded, thereby preventing such issues from disturbing the needed stability of a newly independent country.

DEMERITS OF THE 1960 INDEPENDENCE CONSTITUTION

·    The legislative powers of the independent State of Nigeria were defined in an Act of the British parliament rather than an Act of the Nigerian parliament. It was not until three years later, under the Republican Constitution, that this imperial basis of Nigeria’s Constitution was removed.

·    It carried over many of the unresolved national issues, such as revenue allocation criteria, which emphasised the national rather than regional interest.

1963 REPUBLICAN CONSTITUTION

Major Provisions

·   The Queen ceased to be the head of State.

·    The abolition of the Judicial Service Commission and the empowerment of the President to appoint judges of the Supreme Court on the advice of the Prime Minister and,

·    The Supreme Court and not the Privy Council became the final court of appeal in Nigeria and has the power of judicial review.

·    The emergency power is conferred on the federal government.

·    The constitution laid down the process for the creation of new regions and revenue allocation formula.

MERITS OF THE REPUBLICAN CONSTITUTION

·   It removed the imperial basis of the Nigerian Constitution.

·   The Nigerian Federal Parliament enacted the Constitution of the Federal Act, 1963 which repealed the Nigerian Independence Act of 1960.

·   It made the Supreme Court the Highest court for all cases in Nigeria.

DEMERITS OF THE REPUBLICAN CONSTITUTION

·   The constitution made it more difficult to create new states, thereby making one of the regions larger than the three others put together.

·   It failed to remove Nigeria totally from the strong influence of Britain by allowing Nigeria’s continued membership of the British Commonwealth.

THE 1979 PRESIDENTIAL       CONSTITUTION

MAJOR PROVISIONS

·   Federal Legislature now referred to as the National Assembly comprising the Senate with 5 members each from the 19 States, and the House of Representatives with 450 members.

·   The life of each legislature was fixed for four years.

·   The establishment of the Federal executive council with the President, Vice- President and Ministers appointed by the President as members.

·   The term of the President is 4 years and can be re-elected for another term in office.

·   A State Legislature was created for each State known as the House of Assembly.

·   State executive councils were created consisting of the governor, deputy governor and commissioners appointed by the governor.

·   The Chief Judge of the Federation was appointed by the President with the approval of the Senate, all other Justices of the Supreme Court, the President and Judges of the Federal Court of Appeal, the Chief Judge and other Judges of the Federal High Court were appointed on the advice of the Federal Judicial Service Commission and presented to the Senate for approval.

THE 1999 CONSTITUTION  

This constitution was almost a replica of the 1979 Constitution but with minor modifications such as

·   The House of Representatives was now composed of 365 members instead of 453 members

·   More functional roles were given to Local Government Councils by the provision of Section 7.

·   Separation of real from formal authority, as under the independence and republican constitutions was eliminated. Both authorities now rested in one person, the President at the Federal level, and the Governor at the State level.

DEMERITS OF 1979 AND 1999 CONSTITUTIONS

·   They were imposed by the departing military governments.

·   Process of Constitutional making was flawed on the following basis:

1.                  Inclusively- all voices and opinions including those of minority groups were not heard.

2.                  Diversity- in terms of  ethnic identity, language, religion, and gender

3.                  Participation- involvement of people at all levels who are debating the content of the constitution freely.

4.                  Transparency and Openness- there must never be “no-go” areas or hidden agenda.

5.                  Autonomy- the body charged with leading the review process was neither autonomous nor independent from government control.

6.                  Accountability: the body charged with the responsibility of reviewing the constitution was not accountable to the parliament and the people.

7.                  Legitimacy: No national referendum was ever conducted to test the popularity of any of the drafts of the constitutions.

CONTENTIOUS ISSUES IN THE 1999 CONSTITUTION

·   Federalism- It is agreed that there is over concentration of powers at the federal level.

·   Affirmative Action: Concerning granting of positions to women.

·   Political Parties/ State INEC

·   Fiscal Federalism/Resource Control

·   Religion

·   State Police

·   Sovereign National Conference.

IMPEACHMENT THREATS AND CONSTITUTIONAL DEVELOPMENT IN NIGERIA

The concept of Impeachment

·   The concept of impeachment is a derivative of the Latin word impedicare which implies “to entangle”.

·   It is a quasi-judicial concept.

·   It is also political and constitutional concept.

·   It is political because its application and interpretation depend largely on the whims and caprices of the Legislature;

·   It is constitutional because it is entrenched in the constitutions of most countries.

·   At one level, impeachment connotes a formal accusation of wrong doing.

·   In a broader sense, it encompasses the whole network of complexities involved in the process by which erring public officers are removed from office.

·   Prof Seymour M. Lipset defines impeachment as the method by which government officials may be removed from office when they have been formally accused of crimes or misconduct….it is usually initiated by the lower house of a legislature and is followed by trial and sometimes conviction by the upper house.

GROUNDS FOR IMPEACHMENT

·   Under normal circumstances, the grounds for impeachment would be predicated on reasons such as crimes against the State, mostly manifested by a violation of the constitution of the country.

·   There is no definite definition of what constitutes impeachable offence. The definition of such offences varies from one country to another.

·   In Nigeria, this would include “gross misconduct” defined as “a grave violation or breach of the provisions of the constitution or a misconduct of such nature as amount in the opinion of the National Assembly as gross misconduct”

·   The impeachment procedure is however complex and cumbersome.

THE BASIC GOAL OF IMPEACHMENT

·   The basic goal of impeachment is to ensure a system of governmental accountability and control.

·   As Prof. Adeoye Akinsanya puts it, “perhaps the most effect weapon that can be used by the legislative branch to exercise control over public officers and ensure public accountability…is the power to remove public officers from office”.

·   In reality, the Nigerian experience under this Republic depicts a situation whereby the legislature would appear to have perceived the impeachment machinery as one tool for political vexation.

IMPEACHMENT- NIGERIAN CASE STUDY

·   The first case of impeachment was initiated on May 13, 1981 with presentation of the notice of allegations to Governor Balarabe Musa of Kaduna State under the Second Republic.

·   There were 10 articles of impeachment.

·   Investigation into the allegations began on March 21, 1981 with the setting up of the Impeachment Panel in line with the provisions of section 170(3) of the 1979 Constitution.

·   The impeachment proceeding, which began on June 10, 1981 witnessed a high turnover of litigation, affidavits and counter affidavits. These notwithstanding, the committee forged ahead and ended its proceedings on June 18, 1981with the eventual impeachment of Alhaji Balarabe Musa as the Governor of Kaduna State.

·   Since May 29, 1999, following another fresh democratic beginning in Nigeria, the spate of impeachment as well as its threats seemed unabated.

·   The impeachments and its threats were carried out at both legislative and executive arms. Many Speakers and principal officers of most of the State Houses of Assembly and the National Assembly lost their seats to this phenomenon.

·   Salisu Buhari as the Speaker of House of Representatives lost his seat in 1999. Evans Enwerem as Senate President lost his seat in November 1999.Chuba Okadigbo the successor to Enwerem also lost his seat due to impeachment       on 8^th August 2000. He claimed to have survived seven impeachment attempts.

·   In Abia State, the Speaker of the State House of Assembly has been changed twice due to impeachment. The first elected Speakers of Enugu and Edo Houses were impeached on the charges of inefficiency, acts of impropriety and high handedness in the running of the State Houses of Assembly respectively.

·   Delta and Akwa Ibom Houses were not spared. Ekiti and Oyo Houses were visited by the phenomenon. The first Ekiti State Speaker spent only 37days in office.The Deputy Governor of Osun State Iyiola Omisore was impeached in December 2002.

·   In Kano, both the Speaker and his Deputy were impeached. The Deputy Speaker was impeached in Sokoto State. Benue State with the only Female Speaker, had her impeached in August 2000 for alleged inefficiency.

·   The first threat of impeachment against Nigerian President Obasanjo was made in May 2000.

·    The 1999 Nigerian Constitutional provisions for impeachment of the President and the Vice President can be found in Sections 143(1-11).

·   The corresponding provisions for the State Governors and their Deputies are found in Sections 188(1-11).

·   The main provision is Section 143(2b) for the President and his Vice, while Section 188(2b) stands for the Governor and his Deputy.

·   Section 143(2b) states that if “the holder of the office of President or Vice President is guilty of gross misconduct in performance of the functions of his office, detailed particulars of which shall be specified”.

·   Section 188(2b) has the same provision for Governor and his Deputy.