CONSTITUTIONAL AMENDMENT HOOPLA

There seems to be much ado about our constitutional amendments. I will try not to use too much legalese or bore the readers of my column with the inevitable technical discussion. Two years ago, while lecturing at a Nigerian University, I authored a book on “Nigerian & US Legal Systems” and will use some of my research materials in this piece. The legal systems of both countries have a common heritage – English. Of course the Nigerian legal system is only 50 years old and the constitution less than 20 years. On the other hand, the United States of American (USA) legal system and its constitution are more than 225 years old.

Why should we even be concerned about the American constitution? The simple answer is that we borrowed (or “modeled” if I want to be euphemistic) from the Americans. A historical perspective is in order here.

The various Nigerian constitutions.
Since independence, Nigeria, as we all should know, has been ruled mostly by the military, which gave it several constitutions. Like the US, the Nigerian constitution is the supreme law of the land. In fact, the 1979 Nigerian constitution was substantially modeled after the U.S. constitution, with specially added provisions to account for the uniqueness of Nigeria. The current constitution is the 1999 constitution, which is essentially a modification (not amendment) of the 1979 constitution, both of which were handed to the country by the outgoing military regimes. The other constitutions include the Arthur Richard Constitution of 1946, The First Republic Constitution of 1963 with Dr. Nnamdi Azikiwe as ceremonial President, and the 1958 constitution amended by James Robertson, the last Colonial Governor of Nigeria. The 1999 Nigerian Constitution came into operation on May 29, 1999.

Ekundayo, et al. (2005) says that “The Constitution of the Federal Republic of Nigeria 1999 regulates the distribution of legislative business between the National Assembly, which has power to make laws for the Federation and the House of Assembly for each State of the Federation. “

According to Wikipedia (not academically authoritative) “The Constitution and federal law[of US] are the supreme law of the land, thus preempting conflicting state and territorial laws in the fifty U.S. states and in the territories.”

All these legal jargon means is that in both countries, the national constitution and the National government are supreme. They both have bi-cameral legislature (senate & house of reps) and three branches of government (executive, legislative, and judiciary).

There are 320 Sections contained in eight chapter chapters in the 1999 Nigerian constitutions, along with seven schedules. This makes for cumbersome reading and any attempt at amending, an arduous task. Comparatively, the American constitution came into being on 17 September 1787 and has seven articles with sections, plus 27 amendments in over 200 years. The 1999 Constitution of Nigeria has been altered (amended) three times already.

Part of the problem with the current Nigerian constitution is that it is too detailed and specific in places it should not be, thereby making the amendment process length. For example, there is no reason to list all 774 (768 plus FCT) local government areas (LGAs) in the constitution. A constitution should be more like a guide and fluid enough to change with the dynamics of the country.

For purposes of clarity, the US Congress is similar to our National Assembly to the extent that it is used to refer to both federal legislative bodies – Senate and House of Representatives,

How do we initiate amendments in both countries? You need two-third majority in their Congress (USA) or National Assembly (Nigeria) to amend or alter the constitution.

For Nigeria, Section 9 Subsection (1) and 9(2) collectively state that “(1) The National Assembly may, subject to the provision 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.”

On the other hand, Article V of the US Constitution states as follows: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.”

Issues such as state creation, state police, autonomy of LGAs and tenure need to be addressed. Those calling for a Sovereign National Conference buttress their argument with the many vagaries in our constitution.

Also, those clamoring for their own State want a piece of the national cake and do not want to remain marginalized in their existing States. In the American constitution, state creation is not used but rather “admission of new state or erection of new state” and Article IV, Section 3 codifies the process by stating that “New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

For Nigeria, Section 8 of the 1999 Nigerian Constitution states that “An Act of the National Assembly for the purpose of creating a new State shall only be passed if (a) a request, supported by at least two-thirds majority of members (representing the area demanding the creation of the new State) in each of the following, namely - (i) the Senate and the House of Representatives, (ii) the House of Assembly in respect of the area, and (iii) the local government councils in respect of the area, is received by the National Assembly; (b) a proposal for the creation of the State is thereafter approved in a referendum by at least two-thirds majority of the people of the area where the demand for creation of the State originated; (c) the result of the referendum is then approved by a simple majority of all the States of the Federation supported by a simple majority of members of the Houses of Assembly; and (d) the proposal is approved by a resolution passed by two-thirds majority of members of each House of the National Assembly.”

When will the amendments come and how much will be amended remains up in the air.

Prof Alex Osondu Atawa Akpodiete is an author, Computer Scientist, Educator, Consultant, lawyer, Political Analyst, Public affair analyst & Social commentator. He has a Doctorate degree in Jurisprudence from the US. He has lectured Law, Ethics and Security & Intelligence Studies at the University level here in Nigeria and US. He also writes for a state daily newspaper & national monthly journal. He currently divides his time between Nigeria and USA where he runs a PR and an international capacity building firm ATAWA GROUP. Contact him on 08138391661 or [email protected]. He is also on Facebook and you can follow him on Twitter.