CONSTITUTIONALISM

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1.0 INTRODUCTION

Constitutionalism is a goal (i.e. a means to an end), and it refers to the regularity of political life within a state by means of a constitution. As a concept, constitutionalism means limited government i.e. a system of restraint on both the rulers and the ruled. Constitutionalism asserts that there are fundamental limits which must be observed in the relationship between the rulers and the ruled. When the power relationship among the groups in political society becomes regularized under law and subject to well- defined restraint, the constitutional government exists.

2.0 OBJECTIVES 

At the end of this unit, you should be able to: 

  1. explain the process of constitution making 
  2.  describe the history of and constitutional development. 

3.0 MAIN CONTENT

3.1 Constitutional Development

A constitution can be meaningful if it draws its inspiration from the values, attitudes of those people over whom that constitution will apply. Nigerian experience in constitution making could for convenient sake be divided into 4 (four) periods.

The Period of Colonial Experience (1914-60): The experience during this period varied from that of imposed constitutions with gradual regulation over time, allowing participation of Nigerians in varying degrees. At the early stage of Nigeria’s colonial experience, constitutions were imposed on Nigerians in the sense that they were not allowed either to determine the nature of the document or to participate in the processes of bringing them into being. The Lugard Constitution of 1914 was responsible for creating legally what we now refer to as Nigeria by merging the Southern and Northern Nigeria protectorates into one entity. Therefore the 1914 Lugard Nigeria Council can be called the first Nigerian Constitution. Clifford Constitution of 1922: With respect to the 1922 Constitution (known as the Clifford Constitution) there were no dramatic changes both in terms of the constitution and that of Lugard. Twenty-four years later, there was the Richard’s Constitution of 1946.
Richard’s Constitution of 1946: This constitution introduced the concept of regionalism in Nigeria. 1n 1946, Nigeria was divided into three (3) regions – North, East and West. With respect to the Richard Constitution, all that merely happened was that the Governor drafted a Constitution that was supposed to replace the Clifford Constitution of 1922. The draft constitution was later on submitted to the Central Legislative Council, and final approval of this constitution was given by the British Parliament.

The Richard Constitution suffered serious criticism and opposition from its inception from the emerging political class, so that in 1951, this Constitution was replaced by the McPherson Constitution. McPherson Constitution: As far as experience in constitution making is concerned, the McPherson Constitution could be said even within a colonial setup to be a peoples’ constitution. This was because of the procedure adopted in bringing the constitution into being. In drafting the Macpherson Constitution, a wide spectrum of public opinion was consulted. There was consultation at village level, Provincial, District and Regional levels so that in contradiction to its predecessors which were personal affairs of successive governors. The 1951 Constitution

was Nigeria’s first experience in the making of peoples’ constitution. After 1951, there was only one constitution until the attainment of independence in 1960.
Lyttleton Constitution: The 1954 Lyttleton Constitution followed the same pattern of constitution making that was witnessed during the Macpherson’s period. With the 1960 Independence Constitution, the powers of the British Parliament to legislate for Nigeria was terminated and the responsibility of the British Government for the administration of Nigeria was also terminated. At the same time, the Queen was still the Queen of Nigeria and the Head of Government. In order to change the dominance of external affairs of Nigeria by Britain, a new Constitution called the Republican Constitution of 1963 was proposed and adopted in 1963.
Republican Constitution of 1963: With this Constitution, the Queen ceased to be the Head of Government in Nigeria. Between 1966 and 1979, there was no constitution in existence in Nigeria. The military coup of January 15, 1966 had the effect of invalidating the legal order of the 1963 Republic Constitution by creating an entirely new legal order based on military Decrees and Edicts.

The legal implication of the new military administration found expression in the Constitution Suspension and Modification Decree which suspended Parliament and Regional Legislatures in January 1966. The government of the Federation was vested in a Supreme Military Council. The Federal Military Government was vested with unlimited legislative powers to make laws on any subject or any part of the country. Constitution making under the military was both informal and unceremonious in the sense that elaborate procedures for making legislations were absent and no distinction between an ordinary legislative enactments and a constitutional decree. Decrees were used at the national level while Edicts were used at state levels.

Nigeria’s 1979 Constitution: Attempts were made by the military government to usher in a civilian government. The procedures adopted in the making of Nigeria’s 1979 Constitution were as follows:

The Federal Military Government appointed a Constitution Drafting Committee (CDC) consisting of 49 persons in October 1975 to produce a draft constitution for the country. The CDC was expected to submit the draft for public comment and discussion before the Constituent Assembly deliberates on it. The method adopted by the CDC was to invite memoranda from the public on all aspect of the proposed constitution and in all, the CDC had 346 memoranda submitted by the public. The CDC raised certain problems:
The first problem was what should be the position of the government relative to the Committee itself. Put differently, how are the government proposal to be handled by the CDC?
The question becomes relevant in retrospect following an allegation made by a member of the CDC that there were subterranean influences from above. The allegation of interference was against the Federal Military Government, it was alleged by Mallam Aminu Kano that a letter was written to the Chairman of the CDC in which the government expressed its displeasure at the direction of the debate of the CDC on the issue of the creation of states. There are basically two comments to make from the allegation:

  1. Once it is agreed that a constitution must be a people’s constitution, everything should be done to ensure that this becomes a reality; 
  2. Secondly, as long as anyone is a Nigerian, individual or institutions, he has a right to submit proposals at the draft stage of the constitution. But government like individuals should make its proposals known before the closing date of the submission of the memoranda or any unlimited privilege may legitimately be construed as interference. By people’s constitution, we mean the constitution that is the nature of the people. 

SELF-ASSESSMENT EXERCISE

What is Constitutionalism?

3.2 Publication of the 1979 Draft Constitution

With reference to the publication of the draft constitution, this procedure was meant to give legitimacy to the document. However, for a constitution to command the loyalty of the people it must be understood by the people and at the same time it must be acceptable to them. The people must also be made to identify themselves with the constitution. Without this sense of identification, of attachment and involvement, a constitution will remain remote, artificial object with no more real existence than the paper on which it is written. The mere fact that participation in the discussion of the draft constitution was restricted to the literate population was a serious error in Nigeria’s attempt at constitution making. In a country where over 80% of the populations are illiterate, the publication of the draft constitution for public comment would appear to be an exercise in window dressing. Those who participated in the discussion were no more interested than those issues that affect their corporate interests.

3.3 Constituent Assembly

With reference to the composition of the Constituent Assembly, it was clearly stated that all areas of interest which ought to partake in the process of constitution making shall have adequate opportunity as participants in the Constituent Assembly. There were two different opinions on how the Constituent Assembly should be constituted.

  1.  One view was that the Constituent Assembly must be popularly elected. According to the advocate of this point of view, it is claimed that the inherent and inseparable attribute of the Constituent Assembly is that it must be composed of representatives duly elected by the registered voters in the country. 
  2. The other point of view is presented in the proposal that the local councils should be used as electoral colleges for purposes of constituting the Assembly. 

The view that the Constituent Assembly should be composed of elected representatives is the ideal view. But the question we want of raise against this view is, how feasible is the proposition in the light of time-table given by the Military Government for the handing over of power to the civilian. It is also questionable whether any popular election could throw up the calibre of men who will be able to do justice to the draft constitution. The problems raised by the election through local council are three-fold:

(i) The system of indirect election used in some of the states in the country militated against popular will. (ii) The second problem is that, a substantial group of articulate and informed Nigerians (e.g. Civil Servants and Teachers) were banned from contesting the election.

(iii) The third problem is that, the local councils themselves did not have enough time to establish public confidence.

3.4 Roles Envisaged for the Constituent Assembly The legislation setting up the Constituent Assembly provided in section (I) that the body shall have full powers to deliberate upon the draft constitution. However, the explanatory note of the decree provided that the Assembly was to have full powers to: deliberate; and enact the draft constitution of Nigeria drawn up by the CDC.

But to deliberate and enact are two separate duties and in any case an explanatory note does not form any part of the legislation. The military administration however had a limited conception of the powers of the Constituent Assembly. In the view of the military administration, a Constituent Assembly was to discuss draft constitution and come out with recommendations which will then be taken to the then Supreme Military Council and thereafter, a decree on the subject on the constitution of Nigeria would be considered and promulgated. The procedure followed by the Military administration left room for interference at the level of SMC. The administration therefore opened itself up to the accusation of imposing and approving a constitution meant for a civilian era. As a matter of fact, the constitution has been referred to in some quarters not as a product of free-will of Nigerians but rather as a Military Constitution.

3.5 The Alternatives The first alternative is that the document should have been submitted to referendum for general public approval or rejection. There is a problem with this alternative. It arises from the fact that it will be a grand deceit to seek the approval of people 80% of whom can not read or will ever bother to read the constitution.

The second alternative of course is that the Constituent Assembly should have had the final word on the constitution.

4.0 CONCLUSION 

The history of constitutional development in Nigeria has been highlighted. Available evidence shows that Nigerian has been trying to fashion a constitution that will accommodate the diverse elements that make up the country.

5.0 SUMMARY

We have been able to establish how the various constitutions were made in colonial and post-colonial Nigeria. We concluded with the 1979 Constitution which we belief was modified in the 1989 and 1999 Constitutions.

6.0 TUTOR-MARKED ASSIGNMENT

Explain the reasons why the colonial constitutions were not drawn up by Nigerians.

  1.  Discuss the role of the Constituent Assembly in the 1979 Constitution making process. 
  2. Is the 1979 Constitution the people’s constitution?

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