First Thing Must Be Done First If Nigerians Desire A New Constitution For Nigeria

By Hameed Ajibola Jimoh Esq.

Nigeria is currently undergoing a process of constitutional
amendment of the provisions of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended)-herein after
referred to as the Constitution. Some Nigerian
citizens (including some lawyers) have called for a new
Constitution for Nigeria. In as much as this call for a new
Constitution might seem worthy, this paper is of the view that for
a new Constitution for Nigeria to be assured, first thing must be
done first as canvassed and or recommended by this paper, hence,
this paper.

It is my humble submission after having read and studied the
provisions of the Constitution especially section 9 of the
Constitution which provides for the provisions for altering the
provisions of the Constitution that the current 1999 Constitution
has not and does not envisage a situation of a repeal of the
Constitution for a new Constitution. See section 9 of
the Constitution and its wording. Nevertheless, in my
humble submission, where the citizens desire a new Constitution, it
would then be possible either legally or illegally. In the case of
an illegal means of achieving a new Constitution, it is a situation
where the current Constitution has been suspended by anarchy or for
instance in the case of Military takeover (which is by a coup)
against democracy or the current democratic government as was
experienced in the Nigerian political history- God forbid the
recurrence of this situation! I must however state here that this
means of constitutional amendment is very undesirable! On the
second means of constitutional amendment which is in using the
legal means, this involves using the Constitution to achieve this
goal.

For instance, I humbly submit that what section 9 of
the Constitution provides for is
alteration of the provisions of the Constitution and
not repeal of the Constitution, which provides thus
‘9.—(1) The National Assembly may, subject to the
provisions of this section, alter any of the provisions of this
Constitution. (2) An Act of the National Assembly for the
alteration of this Constitution, not being an Act to which section
8 of this Constitution applies, shall not be passed in either House
of the National Assembly unless the proposal is supported by the
votes of not less than two-thirds majority of all the members of
that House and approved by resolution of the Houses of Assembly of
not less than two-thirds of all the States. (3) An Act of the
National Assembly for the purpose of altering the provisions of
this section, section 8, or Chapter IV of this Constitution shall
not be passed by either House of the National Assembly unless the
proposal is approved by the votes of not less than four-fifths
majority of all the members of each House, and also approved by a
resolution of the House of Assembly of not less than two-thirds of
all the States. (4) For the purpose of section 8 of this
Constitution and of subsections (2) and (3) of this section, the
number of members of each House of the National Assembly shall,
notwithstanding any vacancy, be deemed to be the number of members
specified in sections 48 and 49 of this
Constitution.’.

Therefore, in my humble view and submission, for there to be a
new Constitution, there is need for an amendment of the provisions
of section 9(1) of the Constitution by the use of
section 9(2) of the Constitution to read thus ‘9.—(1) The National
Assembly may repeal this Constitution or
subject to the provisions of this section, alter any of the
provisions of this Constitution (the new word is underlined by
me). Therefore, without any provisions of the
Constitution empowering the legislature to repeal the current
Constitution or without amending the current Constitution to
empower a likely repeal of the Constitution, any such purported
repeal without the Constitutional backing is null and void and of
no effect by virtue of section 1 of the
Constitution which provides thus ‘1.—(1)
This Constitution is Supreme and its provisions shall have binding
force on all authorities and persons throughout the Federal
Republic of Nigeria. (2) The Federal Republic of Nigeria shall not
be governed, nor shall 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. (3) If any
other Law is inconsistent with the provisions of this Constitution,
this Constitution shall prevail, and that other Law shall to the
extent of the inconsistency be void.’. See the case of ANKPA & ORS
v. MAIKARFI & ANOR (2008) LPELR-3776(CA) where the Court of Appeal
of Nigeria held on the supremacy of the Nigerian Constitution thus:
“It is the law that no provision of any enactment is capable of
expanding or subtracting from the elaborate provisions of the
Constitution on any subject matter dealt with by the Constitution,
this is so because the Constitution is the ground norm. In
Attorney-General Abia State v. Attorney-General of the Federation
(2002) 6 NWLR Pt. 763 page 264 at 369, Kutigi JSC put it succinctly
as follows: “Where the provision in the Act is within the
legislative powers of the National Assembly but the Constitution is
found to have already made the same or similar provision, then the
new provision will be regarded as invalid for duplication and or
inconsistency and therefore inoperative The same fate will befall
any provision of the Act which seeks to enlarge, curtail or alter
any existing provision of the Constitution. The provision or
provisions will be treated as unconstitutional and therefore null
and void.” Per ABDU ABOKI, JCA (Pp 18 – 19 Paras D –
B).

Finally therefore, in my humble submission, unless the current
constitution is amended to allow a repeal of the current
Constitution and then, the procedures laid down for such repeal is
complied with, any purported repeal of the current Constitution is
unconstitutional, null and void and ineffective for being insistent
with the current Constitution.

Email: hameed_ajibola@yahoo.com^[1]

By Hameed Ajibola Jimoh Esq.

Nigeria is currently undergoing a process of constitutional
amendment of the provisions of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended)-herein after
referred to as the Constitution. Some Nigerian
citizens (including some lawyers) have called for a new
Constitution for Nigeria. In as much as this call for a new
Constitution might seem worthy, this paper is of the view that for
a new Constitution for Nigeria to be assured, first thing must be
done first as canvassed and or recommended by this paper, hence,
this paper.

It is my humble submission after having read and studied the
provisions of the Constitution especially section 9 of the
Constitution which provides for the provisions for altering the
provisions of the Constitution that the current 1999 Constitution
has not and does not envisage a situation of a repeal of the
Constitution for a new Constitution. See section 9 of
the Constitution and its wording. Nevertheless, in my
humble submission, where the citizens desire a new Constitution, it
would then be possible either legally or illegally. In the case of
an illegal means of achieving a new Constitution, it is a situation
where the current Constitution has been suspended by anarchy or for
instance in the case of Military takeover (which is by a coup)
against democracy or the current democratic government as was
experienced in the Nigerian political history- God forbid the
recurrence of this situation! I must however state here that this
means of constitutional amendment is very undesirable! On the
second means of constitutional amendment which is in using the
legal means, this involves using the Constitution to achieve this
goal.

For instance, I humbly submit that what section 9 of
the Constitution provides for is
alteration of the provisions of the Constitution and
not repeal of the Constitution, which provides thus
‘9.—(1) The National Assembly may, subject to the
provisions of this section, alter any of the provisions of this
Constitution. (2) An Act of the National Assembly for the
alteration of this Constitution, not being an Act to which section
8 of this Constitution applies, shall not be passed in either House
of the National Assembly unless the proposal is supported by the
votes of not less than two-thirds majority of all the members of
that House and approved by resolution of the Houses of Assembly of
not less than two-thirds of all the States. (3) An Act of the
National Assembly for the purpose of altering the provisions of
this section, section 8, or Chapter IV of this Constitution shall
not be passed by either House of the National Assembly unless the
proposal is approved by the votes of not less than four-fifths
majority of all the members of each House, and also approved by a
resolution of the House of Assembly of not less than two-thirds of
all the States. (4) For the purpose of section 8 of this
Constitution and of subsections (2) and (3) of this section, the
number of members of each House of the National Assembly shall,
notwithstanding any vacancy, be deemed to be the number of members
specified in sections 48 and 49 of this
Constitution.’.

Therefore, in my humble view and submission, for there to be a
new Constitution, there is need for an amendment of the provisions
of section 9(1) of the Constitution by the use of
section 9(2) of the Constitution to read thus ‘9.—(1) The National
Assembly may repeal this Constitution or
subject to the provisions of this section, alter any of the
provisions of this Constitution (the new word is underlined by
me). Therefore, without any provisions of the
Constitution empowering the legislature to repeal the current
Constitution or without amending the current Constitution to
empower a likely repeal of the Constitution, any such purported
repeal without the Constitutional backing is null and void and of
no effect by virtue of section 1 of the
Constitution which provides thus ‘1.—(1)
This Constitution is Supreme and its provisions shall have binding
force on all authorities and persons throughout the Federal
Republic of Nigeria. (2) The Federal Republic of Nigeria shall not
be governed, nor shall 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. (3) If any
other Law is inconsistent with the provisions of this Constitution,
this Constitution shall prevail, and that other Law shall to the
extent of the inconsistency be void.’. See the case of ANKPA & ORS
v. MAIKARFI & ANOR (2008) LPELR-3776(CA) where the Court of Appeal
of Nigeria held on the supremacy of the Nigerian Constitution thus:
“It is the law that no provision of any enactment is capable of
expanding or subtracting from the elaborate provisions of the
Constitution on any subject matter dealt with by the Constitution,
this is so because the Constitution is the ground norm. In
Attorney-General Abia State v. Attorney-General of the Federation
(2002) 6 NWLR Pt. 763 page 264 at 369, Kutigi JSC put it succinctly
as follows: “Where the provision in the Act is within the
legislative powers of the National Assembly but the Constitution is
found to have already made the same or similar provision, then the
new provision will be regarded as invalid for duplication and or
inconsistency and therefore inoperative The same fate will befall
any provision of the Act which seeks to enlarge, curtail or alter
any existing provision of the Constitution. The provision or
provisions will be treated as unconstitutional and therefore null
and void.” Per ABDU ABOKI, JCA (Pp 18 – 19 Paras D –
B).

Finally therefore, in my humble submission, unless the current
constitution is amended to allow a repeal of the current
Constitution and then, the procedures laid down for such repeal is
complied with, any purported repeal of the current Constitution is
unconstitutional, null and void and ineffective for being insistent
with the current Constitution.

Email: hameed_ajibola@yahoo.com^[1]