Tuesday, 16 February 2021









In a recent article published online in “The Nigeria Lawyers: thenigerialawyer.com”, Chief Afe Babalola, SAN, stated:

The contention of the Deputy Senate President that the National Assembly has no powers to create a new Constitution for Nigeria does not truly reflect the provisions of the constitution. I believe that under the present constitution, the National Assembly has the inherent powers to make a new constitution to govern Nigeria…


Chief Afe Babalola, SAN, is a very eminent lawyer whose views ordinarily command respect from the Nigerian public as much as from the legal community. However, his views on the creation of a new constitution for Nigeria, as above expressed, have left me scratching my head in confusion and disbelief. A visit to section 1(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) will explain my confusion and disbelief. That provision states:

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.

The above provision is unambiguous and does not give any room whatsoever for the creation of a new constitution from the present constitution. Indeed, no constitution anywhere in the world has ever embedded provisions that permit the creation of ‘a new constitution’ outside its own provisions. That would indubitably amount to legislating or legalizing its own destruction.


Even under Part II captioned ‘Miscellaneous Provisions’ and Part III captioned, “Transitional Provisions and Savings’ all under the umbrella of Chapter VIII of the 1999 Constitution, no mention was ever made of any power of the National Assembly ”to create a new constitution for Nigeria.” Amending or altering the provisions of a constitution is one thing, but “creating a new constitution” is a totally different thing which was neither provided for nor was even envisaged by the extant constitution.


Chief Babalola, SAN, also submitted that the National Assembly has the “inherent powers” to create a new constitution for Nigeria.” That is also most respectfully, not true. In any written document, whatever is not expressly stated cannot be implied. There is a litany of legal authorities on this point. The National Assembly, most respectfully, does not have any “inherent powers” to create a new constitution for Nigeria. “Inherent powers” to create a new constitution for Nigeria lies only with the people of Nigeria as the fountain of the political sovereignty of the country. The people constitute the supreme law giver who both write the constitution in a Constituent Assembly through their delegates/representatives and later, approve the resultant draft in a popular referendum and thereafter, constitute the government in accordance with the provisions of the Constitution through a democratic election.


Therefore, the business of creating or writing a new constitution for Nigeria falls squarely and inalienably to the Nigerian people vide a democratic election of a Constituent Assembly, a vigorous, popular debate of all relevant national issues and ratification of the draft produced by that Assembly in a popular referendum. It is an extra-constitutional, popular, revolutionary process done not within the context or prescriptions or contemplation of the existing constitution but completely outside it. The National Assembly of Nigeria therefore has absolutely NOTHING to do with it, hence the strident calls for restructuring and the convocation of a Sovereign National Conference to produce a new, People’s Constitution for Nigeria.



I had always wondered why Nigeria has had six Constitutions between October 1, 1960 and February, 1998, a space of only 30 years, whereas a country like the United States of America (whose constitutional model we eventually ended up with) has retained the only Constitutional charter its founding fathers formulated in Philadelphia in the summer of 1787 (with minor amendments dealing mainly with Bills of Rights). I went into a spirited post doctoral research that took some years to unravel the problem.



I found as follows:

1. Nigeria, as a former British colonial dependency, never had a proper constitution-making pedigree or foundation. The British colonial authorities simply enacted constitutional charters as political, social and economic developments demanded so long as British political and economic interests were protected or not otherwise jeopardized thereby.

2. The wobbly constitutional foundation laid by the British colonial authorities was unfortunately constrained to carry the weight of a neo-colonial superstructure – a vibrant, independent and democratic country for which it was most ill-suited. A clay, sloppy foundation can never carry the superstructure of modern edifice.

3. To succeed in constitution-making and nation-building, American political/revolutionary leaders involved the people of the 13 original colonies – Pennsylvania, New Hampshire, Massachusetts, New York, Connecticut, South Carolina, Georgia and Rhode Island (which did not send any delegate to the 2nd Continental Congress (Constituent Assembly) for fear of possible loss of revenue from taxation of timber logs from the colony) but eventually ratified the draft Constitution in 1789, in a spirited sensitization campaign on all the issues relative to the historic process. The constitutional issues were discussed and debated in schools, colleges, market places, hospitals, motor parks, rail and ship terminals, etc. It was also discussed in private homes, on farms, restaurants, open gardens, public and private offices, etc. The news media, of course, co-ordinated and harmonized the debates and the opinions of various groups and sections of the society.

4. Virtually everyone was carried along in these discussions/debates. The pros and cons of every issue were thoroughly examined. At the end, Constituent Assembly delegates were elected with special and specific mandates to represent various groups, sections and special interests of the American Society.

5. There is a distinction between a ‘Constituent Assembly’ and ‘National Assembly’ or ‘Parliament’ such as the United States’ Congress or the British, Indian or Canadian parliament which is elected for the purpose of ordinary law-making; its members are mere ‘Parliamentarians’ or ‘Honourable Members’. In the case of a ‘Constituent Assembly’, its member are specially mandated to  draft, debate and submit to the people via a referendum, the draft constitutional charter resulting from their deliberations. Their forum is called ‘Constituent Assembly’ precisely because the specially-mandated members elected into it have been specifically mandated to constitute the frame of government (i.e. constitution) according to the people’s constitutive mandate. A people’s constitution therefore constitutes the ground on which they stand or fall in their nation-building endeavor.

6. I found out also that relative to the Nigerian experience, a dangerous lacuna had always existed. It created a missing link. That missing link was and remains the Nigerian people – the market trader, male and female, the rural farmers, the rural teachers, the rural pupils, the rural student, the young and old in our various villages, towns and states, in short, the man and woman in the street.


I equally found out that only the Macpherson Constitution of 1951 tried to involve the Nigerian colonial people in the drafting process. Unfortunately, even this exercise turned out to be an elitist affair which was promptly hijacked by a combination of resentful and subversive colonial staff and the local elite thriving on all manner of geo-political, geo-economic, geo-administrative and geo-strategic negativity and odd partnership. The Macpherson Constitution failed because it created a populist illusion and some fundamental institutional contradictions. For instance, Federal Ministers owed their loyalty not to the colonial Federal Executive Council or to the Governor-General, but to their parties in the various Regions. So, it was only a matter of little time before this and other structural defects destroyed its functional dynamics and conceptual framework.

8) Both the Oliver Lyttleton Constitution of 1954 and the Independence Constitution of 1960 resulted from elitist and unrepresentative constitutional conferences both in London and Lagos. None of them involved a broad spectrum of the Nigerian colonial people. All was indeed, news media affair for the man in street. The British colonial authorities thus laid a very shallow foundation for the “stability” of the constitutional order they put in place in Nigeria.

9) I also found out that because the British colonial authorities suppressed democracy in colonial Nigeria, a free and independent Nigeria could not know democracy or its fundamental dynamics. Constitutional sanctity meant even less to the people as the 1960 "Constitution of Nigeria" remained a white elephant with clay feet, a document they knew little or nothing about (unlike in the United States' example we discussed above).

 Elements of the Nigerian Army therefore started plotting to overthrow the 1960 Constitution even from 1961 (see Philip Efiong, Nigeria and Biafra: My Story [Aba: Business Forum Publications, 2000], p. 41).

10) Nigeria had a golden opportunity in October, 1963, when the last white representative of the Queen of England (Sir. James J. Robertson) withdrew for good from the Nigerian shores at the dawn of the Nigerian Republic. That was the year Nigerian political leaders should have convened a Constituent Assembly of the true representatives of every section and segment of Nigeria in an all-inclusive, process-formulated, process-centred, process-driven and result-oriented constitutional conference. Had this process been set in motion at the commencement of Nigeria's so-called "First Republic" in October, 1963, the military intervention which late Major Chukwuma Kaduna Nzeogwu of the Nigerian Army and his collaborators unleashed on Nigeria in January 1966 would have been averted because a new constitutional and therefore political order would have emerged from such a historic indigenous constitutional conference that would have holistically and realistically re-structured Nigeria from where the British colonial authorities left it.

11) The series of military constitutions, from Murtala-Obasanjo Constitution (1979), Babangida Constitution (1989); Abacha Constitution (1995) (which unfortunately transformed to the Abdulsalami Abubakar Constitution (1999) are all a demonstration of what can go wrong when the making of a fundamental and sacred document like the 'Constitution’ is taken over by the military establishment and their apologists in the name of politico-social engineering such as former military President, Ibrahim Badamasi Babangida practised on Nigeria in the years, 1985 to 1993 from which colossal misadventure Nigeria helplessly ended up on the laps of late General Sani Abacha.

12) We are all living witnesses to what constitution-cobbling (i.e. the military model as opposed to genuine, people-formulated and   process-centred exercise of constitution-making) has done to Nigeria and Nigerians since 1975 when late General Muhammad started his ill-advised 'transition programme'. More and more of such "Constitutions" would, in course of time, be foisted on Nigerians if nothing is done now to take our destiny in our own hands and thus save succeeding generations of Nigerians from this scourge.

13) I have articulated a 10-point practical methodology to achieve a people's constitution for Nigeria by Nigerians. This methodology recognizes the Nigerian people as the real sovereign owners of this land. It gives prominence to due process and the fact that every Nigerian has equal and inalienable stake in the well-being of this country. The proposed methodology will therefore create an all-inclusive, process-formulated, process-driven, process-centred and result-oriented exercise in which the Nigerian people - North, East, West and South - would be the focal point and the anvil upon which the whole exercise revolves. The Nigerian people will be the process, will design the process and will determine the tenor and basic dynamics of the process.



The idea of a Constituent Assembly as designed by the Greeks who originated the practice of 'democracy' was for the people themselves and NOT Government to set up the interactive, constitutive democratic body where ideas and opposing views about issues which should form part of a proposed constitution would be freely vented.

The thirteen original colonies of America applied this principle with great success, hence their constitution drafted in 1787 by their founding fathers and revolutionary leaders has remained unassailed with relevant amendments.

In Nigeria, the story is disheartening because the Nigerian military establishment never allowed constitution-making principles and age-long practice to work the way they were designed to work.

Owing, perhaps to wrong advice or wrong personal idea of how to handle the issue, late General Murtala Muhammad, on October 4, 1975, announced the appointment of a 50-man Committee to draft a new constitution for Nigeria. That was Muhammad's second mistake. The first was his desire to stay in office for four long years, contrary to what should be the posture and tenure of a 'corrective' regime. Muhammad's third mistake was to hand-pick members of the Constitution Drafting Committee. These were all roles the Nigerian people - the ordinary man and woman in the street - were supposed to play. Anybody therefore appointed by the Government into that Committee simply represented government's interest therein. This development unfortunately rendered the Nigerian people spectators in the whole exercise. Even the act of constituting a Constitution Drafting Committee before the formation of a ‘Constituent Assembly' properly so-called is wrong in a constitution-making process. The Constituent Assembly historically and ideally does all job of constitution-making, including the drafting. The procedure outlined in my Blueprint amply clarifies the proper- methodology.


Constitution-making is basically the people's business and not government's business. Having decided to transit to a democratically elected civilian government, Muhammad's only legitimate business and role therefore was to announce such intention to Nigerians and thereafter, to call upon the country's civilian leaders (most of whom were waiting in the wings) to organise a Constituent Assembly - the only authentic people's forum - to draft and debate a new constitution for Nigeria. It was a business for which the Nigerian civilian leaders were prepared as can be gleaned from late Chief Obafemi Awolowo's remark when he declined to serve on that Constitution Drafting Committee. Said Chief Awolowo: 'Such an exercise is beyond my competence'.

The late sage simply meant that neither he nor any other person or persons unelected by the Nigerian people could embark on a constitution-making exercise for Nigerians without their special mandate specifically and unequivocally given by the people themselves through a credible democratic election organized for such purpose. In relation to Babangida's 'transition programme' years later (just before Chief Awolowo's death), the late sage ominously remarked:

Something inside me tells me, but I pray to be proved wrong, that we are about to embark on a fruitless exercise.

 Indeed, at the end of eight long years of deliberate, contrived motion without progress in which Nigeria actually transited to nowhere, we ended with a variant of Babangida's regime epitomized in Shonekan's Interim National Government (declared ‘illegal’ by a Lagos High Court) which ultimately ended up on the laps of late maximum dictator, General Sani Abacha – who was, indeed, Babangida’s acolyte.


Unfortunately, Obasanjo perpetuated Muhammad’s mistakes by setting up a ‘Constituent Assembly’ partly hand-picked and partly ‘elected’ (actually parked full with government cronies and apologists). That was exactly how not to set up a Constituent Assembly of the real people who own the land. The setting up of this historic body is always exclusively the people’s act or business. I extensively criticized this unwarranted charade at pages 174-184 of my Doctoral Thesis captioned ‘Constitution-making in a Developing Society: Nigeria as a Case-Study (to be found at the Faculty of Law Library, University of Nigeria, Enugu Campus; also at the University of Nigeria Library, Nsukka. See further pages 529-710 of the said Thesis).


Obasnajo further missed a historic opportunity when he set up a National Political Reform Conference which was essentially a talking shop or debating club with no powers to do anything at all, instead of letting the Nigerian people draft and approve a constitutional charter for themselves and their posterity. President Goodluck Ebele Jonathan fell into a similar error in 2014 when he and Chief Anyim Pius Anyim (his henchman and Secretary the Federal Government) set up another talking shop without popular participation. It was anything but democratic – just some hand-picked Government delegates who were each given some millions of Nigeria’s hard-earned money per week for the duration of the Government-orchestrated political jamboree! Indubitably, these were all wasted opportunities to salvage the Nigerian political conundrum.


In 1778, the Massachsetts’ Legislature in the United States of America submitted to the voters in a town meeting (i.e State Referendum) a ‘Constitution’ which the Legislature itself drafted and approved. The Massachusetts’ voters rejected the said ‘constitution’ and suggested a Constituent Assembly specifically elected by the people themselves for that purpose. The draft constitution produced by this Convention was later approved by the Massachusetts’ voters in 1780 and adopted as the Massachusetts’ Constitution of 1780. This fundamental historic development demonstrated the concept of popular sovereignty and the residuary constituent power of the people in a constitution-making process.

The wrongful act or practice therefore of enacting Decrees or legislation at any stage to direct or ‘consummate’ a constitution-making exercise is precisely how not to make a constitution which is supposed to be the people’s act. It is a pollution of the sanctity of the people’s business. The process should be exclusively the people’s business without any government interference whatsoever. The people should decide what happens at any stage of the exercise which itself should be process-driven and process-centred. Any genuine constitution making process normally takes on a life of its own like a raging torrent because it is process-driven and people-centric.


Furthermore, government should never interject itself in the process by purporting ‘to sign’ or ‘promulgate’ a constitutional draft into law. That is a sick thing to do. It robs the people of their sovereign, constitutive power to exclusively draft, debate and approve (via referendum) their own constitutional charter. It exposes the country to laughter in the international community and moreso by constitution-making experts watching from the sideline. That is the basic function of a referendum. The people know how to go about it.

Finally on this score, government should never spend one kobo on the exercise and should never even suggest a venue for it; that would amount to unwarranted interference. The peoples of Nigeria know what to do – where to hold their meetings and how to raise the necessary funds.



The exercise will create the first truly Nigerian Constitution through a truly Nigerian constitution-making process where the Nigerian people-the man and woman in the street – would be the true determinants of the functional dynamics, including every word, line, paragraph, section, page and all the contents of the final document from the beginning to the end.


A constitutional charter authored by the people themselves in a due process formulation ensures that the people who have made it:


1. Know every word of it;

2. Will respect its provisions;

3. Will feel emotionally and psychologically attached to it and therefore, will passionately defend it anytime and anywhere, even with their lives as when demonstrators erect bonfires on street intersections to engage “security forces” in defence of their fundamental rights and liberties. The recent #ENDSARS popular protests around Nigeria that eventually attracted Federal Government’s bloody intervention, is a good example.

Such respected, sacred, foundation document will:

1. Ensure Transparency in government;

2. Have enough provisions and in-built mechanism to ensure accountability and responsibility in the conduct of cognate officers of the various arms and departments of government;

3. Ensure that the people themselves become the watchdog of its provisions;

4. Ensure that the Courts thrive with litigation designed to protect and defend the provisions of the Constitution.

When the people are fully aware of the provisions of the constitution and are prepared to lay down their lives in its defence, then it will be bye-bye to military intervention in government.

Even the most daring gambler or adventurer in the Nigerian Armed Forces would be effectively circumscribed and checkmated because, like in Cote d’ivoire in June 2000, the Philippines in 1986, like in the United States, Great Britain, Canada, India and Australia, the people are not prepared to countenance or tolerate any military adventure out to disrupt popularly established order of society under the operation of the peoples’ Constitutions. There would be true and genuine rule of law and due process transposed on sound and functional geo-political, geo-economic, geo-administrative and geo-strategic imperatives and dynamics. These will automatically give birth to a new feeling of oneness – a true nation of co-travelers in the Nigerian ship of State where the people are king and the due process is the sole determinant of everything predicated on all co-operant factors of Nigeria’s volatile geo-political calculus.


In the next chapter of these series, we shall discuss the post constitution-making agenda for the civil society - how to ensure the success and practical functionality of the People’s Constitution when finally enacted by the people.




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