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Nigeria needs a new constitution, not piecemeal adjustments

Nigeria’s Senate and House of Representatives voted on 1 March 2022 on 68 bills seeking to amend the country’s 1999 constitution. Each bill either seeks to amend parts of the constitution or introduce new legislation. The amendments were proposed by the senators and representatives. The chambers agreed separately on some of the bills and differed on others. Legal scholar Abiodun Odusote weighs in on the amendment process and the imperative of a new constitution.

What are your thoughts on the constitutional amendment process?

The constitution, being an organic document, must be responsive to challenges and emerging trends. Across the globe, constitutions are amended to respond to socio-economic, cultural and political changes. But the amendment process must include the mass participation of the people. It must be transparent, credible and rigorous to ensure that it is done in the interest of the people and not in the personal interest of the law makers.

In Nigeria’s case there is a lack of public awareness, insensitivity to gender issues, lack of transparency and a seeming lack of genuine intentions to amend the constitution. The National Assembly failed to properly engage academia, the media, women, nongovernmental organisations and citizens in the process.

The amendment process is coming in the twilight of the tenure of this assembly. The seventh assembly failed to amend the constitution before leaving in 2015 because it started late. I do not think the process will be completed before the tenure of this ninth assembly expires.

Some lawyers and public commentators have suggested that one of the reasons the amendments failed before was that they were all put in a single bill and what affected one affected all. This time, each proposed amendment stands alone and each will survive on its own merit. Separate bills are sent to the president for assent in a piecemeal way.

It is my opinion that piecemeal amendments should be avoided. It is being done on the flawed presumption that the 1999 constitution is legitimate. Only a few elected people with many selected military government representatives drafted and enacted the constitution.

What are the required legal steps to amend the Nigerian constitution?

Nigeria operates a constitutional democracy with a written constitution which stands above all other laws. The process of amending the constitution is rigid and stringent. A bill passes through first reading, second reading and referral, public hearing and third reading and passage.

Under Section 9 of the constitution, it can be amended by a proposed resolution supported by a two-thirds majority of both houses – the Senate and the House of Representatives. It further requires approval by not less than two-thirds of the 36 houses of assembly in the federation.

In specific instances, the amendments require a higher threshold. These include creation of new federal states and adjustments of boundaries, fundamental human rights, creation of new local government, and the mode of altering the constitution. Changes to these must be approved by a four-fifths majority by both chambers of the National Assembly and two-thirds of the state houses of assembly.

A peculiar feature of the voting procedure in respect of the constitution amendment process is that electronic voting is usually adopted at plenary for easy documentation and recording. Voice vote is not suited because of the specific constitutional requirements.

Finally, the president’s assent is required in support of the resolution for amendment. This procedure reinforces the doctrine of checks and balances.

Is there enough time to see the amendments through?

I don’t think so. The proposed amendments must be forwarded to the 36 states’ houses of assembly and there is about a year to the end of this assembly. They have to deliberate and perhaps consult with the citizens before a decision can be reached.

The general rule is that the new assembly must start from the beginning. It seems that position has changed though, because the recent Rules of the House of Representatives Order XIII, Rule 1 (11) appears to permit constitution amendment bills not concluded in a previous assembly to be taken up by a new assembly. I doubt if this has been tested in court. And the bills must still be reintroduced and go through the legislative stages anyway.

Are the 68 amendments far-reaching enough?

I give credit for the passing of some bills, including the financial autonomy for local government areas and free, compulsory basic education. Similarly, rights to food and food security, and allowing both state and federal governments to legislate on railways. But they are just scratching the surface. There are more fundamental problems to address.

The Nigerian constitution requires a major and fundamental amendment if not replacement. The constitutional history of Nigeria is both imperialist and military induced. Only a constitution enacted by the people themselves will be accepted by them. It will also include diverse cultures and ethnicities. It will confer legitimacy on the organs of government and build trust between the government and the people. Genuine participation of the people in the constitution-making process would facilitate compliance and would legitimise the constitution.

The Nigerian people through their elected representatives must converge to draft and enact a more responsive and efficient constitution that will address structural, fundamental and emerging issues within the Nigerian Federation.

These issues include what kind of federation Nigeria should have, and how to address insecurity and unrest. Whether to revert to the parliamentary system of government, whether regionalism would be more practical. How to collect and distribute tax, how to ensure judicial autonomy. The slow pace of the justice system, reform of the police, the roles of traditional institutions and rulers, the compulsory national youth service programme, and many gender-sensitive issues.

Nigerians are yearning for constitutional interventions in these areas and more. These cannot be achieved without a robust national debate and awareness.

Does Nigeria need a new constitution instead of piecemeal amendments?

Yes. Nigeria has a written constitution. Its provisions should ordinarily be contained in one document. It is becoming extremely difficult to keep track of these amendments. And some don’t have the support of the majority of the citizens because they were not subjected to genuine public debates.

The process leading to having a new constitution is more complex and cumbersome, but it is the only viable path in the long term.

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