Constitutional History of Nigeria,
an Overview
Many
centuries before European imperialism in Africa, the unlettered people of
Africa had been governing their societies through unwritten constitutions
derived from their cultures, customs and tradition. The constitutional history
of Nigeria began with the conquest of Lagos in 1861 by the British. This was
followed a year after by the declaration of Lagos as a new ‘Crown Colony’ or
Settlement (Burn: 1978, pp.130-131) and the introduction of the first colonial Constitution
in Nigeria. A Legislative Council comprising a Chief Justice, Colonial
Secretary and a senior military officer commanding the imperial forces, was
introduced (Olusanya: 1980, p. 518). The Legislative Council was charged with
the responsibility of advising the governor in framing legislation for the
colony (Coleman: 1986, p.50).
Until
1928, the Legislative Council was dominated by the repatriates. One major
factor that determined the exclusion of the indigenous people from the Council
was the Western education which was the necessary prerequisite for effective
participation. Even, the few educated Africans[1]
that made appearance between 1872 and 1922 in the Legislative Council were all repatriates
(Olusanya: 1978, p.518). For instance between 1872 and 1874, the unofficial
members of the Legislative Council, A.H. Porter, an English merchant, G.
Hutchinson and Captain J.P.L. Davies were wholly expatriates. Between 1874 and
1886, the colony lost its unofficial nominations into Legislative Council as a
result of the British administrative strategy in which Lagos was merged
administratively with the Gold Coast.
The coalescing of both Lagos Colony and the Southern
Nigeria Protectorate in 1906 extended the jurisdiction of the Legislative
Council to the latter. Significantly, the amalgamation of the Colony and the
Southern Nigeria Protectorate meant increase membership of both official and
unofficial representatives in the Legislative Council. The official members
became ten while the unofficial members were six. Despite growing number of the
membership, the function of the Council did not extend beyond advisory
role. Still, the amalgamation of
Northern and Southern Nigeria Protectorate in 1914 did not usher in any
improvement on the function of the Legislative Council. In fact, the competence
of the Council which covered the Southern Nigeria Protectorate before was
truncated by Governor Lugard (Olusanya: 1980, p.520). The creation of the
Nigerian Council for the rest of the country, i.e. the Northern and the
Southern Nigeria Protectorate in 1913, did not salvage the issue of proper
representation. The Nigerian Council consisted of twenty four official members
and twelve unofficial members. Of the twelve unofficial members, six were
Europeans representing economic interest of colonial government; the remaining
six were first class Nigerian chiefs (Tamuno: 1967, p. 118).[2]
Like the previous Legislative Councils, the Council was no more than advisory
body. By 1922, the Council was abandoned due to the perpetual absence of
traditional chiefs who because of language barrier found the legislative
proceeding boring (Coleman: 1986p. 50).
A
few points could be observed from the Constitutional History of Nigeria before 1922.
First, the Legislative Councils established by the colonial administration were
not true representations of the people of Nigeria as they were dominated by
official members. Even those Africans that were later allowed to participate
were not only repatriates but also nominees of the governor. The inclusion of
the traditional chiefs in the Nigerian Council, though a welcome idea, was no
more than a cosmetic measure as they were unable to understand, least
contribute to the legislative debate.
More
importantly, the legislation by the Council was no more than window dressing as
no resolution passed by the Council could take any effect without the
ratification of the governor. Hence, in reality, the Legislative Council and
the Nigerian Council were advisory boards to the governor. Finally, the people
for whom legislations were been enacted were not informed, and were least
involved. Thus, whatever constitutions handed down by the British colonial
administration before 1922 violated the true principle of constitutionalism
which places people at the centre of law. But in fairness to the colonial
administration, the western-style constitutional process was at that nascent
stage strange to Nigerians and required gradual learning and training.
Nevertheless,
the pre-1922 colonial legislation was not without advantages. First, the
introduction of the Nigerian Council in 1913 was an indication that the
colonial government was not unaware of the need for public opinion. Hence, the
advisory role played by the Council. Second, the increase in the number of
unofficial members of the Legislative Council started from 1906 represented an
increase of African participation in their domestic affairs.
The
Clifford Constitution of 1922
Having recognized the
failure of both the Legislative Council and the Nigerian Council in providing
criticism of government policies and a check upon official extravagance, Sir
Hugh Clifford proposed substitution of Nigerian Council with a new Legislative
Council whose jurisdictions would at least covered the whole South (Tamuno:
1967, p.120). However, the Northern Province was to be governed by the
Governor’s proclamations. The difficulty involved in the size of the country,
poor transportation and communications, cultural diversity and legal
differences between the colony and the Islamized North were among reasons for
the exclusion of the Northern Province from the Legislative Council (Tamuno:
1967, p.121). However, the annual budget, expenditure and custom duties that
concerned the North were also discussed by the Council.
The Clifford constitution was important in that it
embodied for the first time the principle of election in Nigeria. Of the 46
members of the Legislative Council- 27 unofficial and 19 official - four of the
unofficial members were elected through limited male adult franchise; three
from Lagos and one from Calabar. The condition of election was the residential
qualification of one year in any of Lagos or Calabar and a gross annual income
of £ 100 per annum (Olusanya: 1980, p.522). The Clifford constitution also
established an Executive Council to advise the governor. It was not until after
1943 that the first two unofficial Africans were appointed into the Executive
Council (Okonkwo: 1962, p.211). Another major effect of the constitution was
that it stimulated the formation of political organizations in the country such
as the NNDP (Afigbo: 2003, p. 52). This constitution remained operative for 25
year.
Richard
Constitution of 1946
Before the end of
December 1944, Sir Arthur Richard, the new Governor of Nigeria, published a new
constitutional proposal (Olusanya: 1980, p. 524). The constitutional proposal
was in response to the demand and agitation by some sections of the country,
particularly the more educated south for either self-government or more
participation in government. This opinion was articulated by the WASU and the
NYM (Coleman: 1986, p. 271). The proposals for the new constitution which was
already been prepared by the previous Governor, Bernard Bourdillon, was
presented to the Legislative Council of Nigeria on March 6, 1945 (Ibid).
Perhaps
the most distinguished feature of Richard constitution was regionalism. It has
been argued that the inclusion of the principle of regionalism in the
constitution was a compromise between the radical regional separatists who
preferred three strong states and the federalists who wanted the Native
authority system linked with the central parliament (Coleman: 1986, p.276).
Nevertheless, the stated objectives of the constitution as presented in the
white Paper were:
1. to
promote the unity of Nigeria ;
2. to
provide adequately within that desire for the diverse elements which make up
the country; and
3. to
secure greater participation by Africans in the discussion of their own affairs
(Okonkwo: 1962, p. 255).
As observed by Coleman
(1962: pp274-275), the introduction of regionalism seemed to be attractive to
the British for three reasons. First, the idea of regionalism would at least
partially assuage the nationalist agitation. Second, it would ensure that the
Legislative Council did not grow too large and unwieldy. Lastly, it would also
serve as ‘defense against a possible seizure of central power by an educated
minority in Lagos’. The composition of the new Legislative Council included the
Governor, 16 official members and 28 unofficial members, 24 of whom were
nominated by the Governor and the remaining 4 elected. In addition to two official members, the
Northern Province was represented by nine unofficial members. The Western and
the Eastern Provinces were equally represented by two officials each and six
unofficial and five unofficial respectively (Okonkwo: 1962, p. 255).
Unlike previous constitutions, the Richard Constitution had
a few advantages. First, the constitution integrated both North and South for
legislative purpose. Second, the income qualification of the aspirants was
reduced from £100 to £50. It was also a constitutional advance for Nigeria as
the Central Legislative Council was empowered to legislate for the whole
country. The constitution also introduced Regional Councils. While the Regional
Council for the North had two chambers (House of Assembly and House of Chiefs),
the Western and Eastern had one chamber each. Lastly, the creation of Regional
Council brought government closer to the people of Nigeria.
The constitution was criticized for a number of reasons. First,
the claim that the constitution increased the participations of Nigerians was a
false claim as majority of unofficial members were nominated by the Governor
and even in reality were traditional chiefs who had problem to communicate in
English language. Second, the election principle under the constitution did not
extend beyond limited franchise even though income qualification was reduced. Third,
the elections of the four unofficial members were limited to Lagos and Calabar.
Also, there was no proper consultation of the indigenous people as promised by
the previous Governor, Sir Bernard Bourdillon. Perhaps the worst criticism came
from the educated nationalists who claimed that they were excluded from the
process and that the constitution was an imposition on the country. It should
be noted that even though the constitution’s claim of greater participation was
not adequate, it nonetheless provided greater opportunity for discussion and
debating public opinion. Not only that, the restriction of election to Lagos
and Calabar was probably because the level of literacy in other part of country
was still rather low. The numbers of the northerners in the parliaments
exceeded that of the southerners, this of course became the reference point for
establishment northern hegemony or domination of the country. This again may
have arisen out of the British coy to extend their stay in the country, and
this was testified to by the northerners’ unwillingness to gain independence
when they opposed independence movement made by Anthony Enahoro in 1956.
Macpherson
Constitution of 1951
By March 1949 a Select
Committee of Legislative Council was set up to make recommendations on the
proposed new constitution of Nigeria. Having examined the problems emanated
from Richard constitution, a wide consultation was made even to village level
(Olusanya: 1980 p.530). This was followed by an all Nigerian Constitutional
conference in January 1950. Among other things, the conference agreed to
federal system and transformation of the three regions from administrative to
political regions. The new constitution came into effect in 1951.
The
constitution introduced a single chamber central Legislative House (known as
the House of Representatives) and the executive Council for the entire country.
The constitution introduced bi-cameral legislature, the House of Assembly and
the House of Chiefs- into the Western and the Northern regions but only House
of Assembly for the Eastern region. Besides division of the country into three,
the constitution also established regional executive council for each region. The
composition of the House of Representatives comprised of the President (the
Governor), six ex-officio members, One hundred and thirty six elected members
and six special members appointed by the Governor to represent interests not
adequately represented (Okonkwo: 1962, p.275). Of the one hundred and thirty
six elected members, sixty eight were to come from Northern House of Assembly, thirty
one from the Western House of Assembly and three by the Western House of
Chiefs. The remaining thirty four were members of the Eastern House of
Assembly.
One
major advantage of Macpherson Constitution was that it increased the level of
participation of indigenous people in the government. For the first time, the
number of unofficial members in the House of Representatives was overwhelming.
It is significant to note that the number of unofficial elected members was far
greater than unofficial nominated members. More importantly, the constitution
provided much longing opportunity for Nigerian nationalists to learn the art of
constitution making. Lastly, the constitution
ushered in the formation of new political parties.
Yet,
the constitution was not without a few shortcomings. First, it is true that the
constitution granted election principle; the franchise granted was limited by
economic status and sex. Second, the election into the Federal Legislative
Council was through electoral process. This was unsatisfactory to some
politicians. The Governor still had power to veto any bill he deemed
inconsistent with general interests. Lastly, the constitution as argued by some
disgruntled politicians, further widen the ethnic relation gap in the country.
But it should be noted that the spate of ethnic chauvinism and regional
divisions that followed the Macpherson Constitution was orchestrated by the
selfish politicians who bent on acquiring powers by all means. Hence, the
creation of the Action Group and Northern Peoples Congress were forged along ethnic
lines.
Lyttletton Constitution of 1954
By
1954, it became obvious that the Macpherson constitution could not work any
longer. Two major factors were responsible for the failure of the 1951
constitution. First, in 1953, a member of House of Representatives, Chief
Anthony Enahoro of Action Group party moved the motion for self-government in
1956. This generated crisis in the House
as Northern delegates opposed the motion on the ground that the North was
unprepared for such sudden decision. The
leader of the NPC in the House, Sir Ahmadu Bello proposed that the date 1956
should be substituted with ‘as practicable as possible.’ The crisis was
aggravated when the Northern legislators were subjected to ridicule by the
Lagos crowd (Olusanya: 1980, p.536). Second, both the North and the West were
critical and unsatisfactory of the concentration of power in the Central
Government in Lagos. (Okonkwo: 1962, p. 294). The consequence of this was the
Kano riot of 1953 and the threat of secession by the North. More importantly,
the crisis stimulated London Conference where the decision to review Macpherson
Constitution was made (Ibid). After protracted deliberations in London and
Lagos between 1953 and 1954, the conference granted self-government to the
regions (the west and the east) which desired it. The position of Lagos which
had hitherto been controversial was solved. Lagos became Federal Territory with
direct representation in the Central Legislature.
A
new constitution that recognized the demands of each region was drafted. In
addition to the existing three regions -the North, the West and the East-
Southern Cameroon attained a separate region each, with regional Legislative
Council and Lagos, the Federal Territory. At the Federal level, the office of
the Governor became Governor-General while that of Lieutenant-Governor at the
regional level was transformed to the Governor. A Federal Supreme Court
replaced the West African Court of Appeal, and High Courts were provided for
regions, including Southern Cameroon and Lagos. More autonomy was granted the
regions. For instance the regional executives were responsible for the formulation
and execution of policies for their regions except matter related to the
Exclusive List of the Central government.
It
would appear that the London Conference of 1953 was the most agreeable
constitutional deliberation that Nigerian nationalists would embrace before
independence. The conference agreed to allocate limited but specific power to
the Federal Government while the regions operated within residual list
(Coleman: 1986, 371). The constitutional conference conveyed in 1957 ushered in
two momentous developments. The formal attainment of self-government by both
the Eastern and the Western regions on August 8 was approved. More importantly,
there was creation of national government by the Prime Minister, Alhaji
Abubakar Tafawa Balewa in spite of regionalization of the three major political
parties- the AG, the NCNC and the NPC.
It
should be noted that despite the full participation granted Nigerians in the
1957 constitutional deliberation, the Nigerian politicians did not display
enough maturity that could guarantee lasting peace and unity. By 1958, three
knotty obstacles were observable. These problems reflected in the minority
questions, agitation for separate states and the threat to national unity
(Coleman: 1986, 384). The growth of ethnic nationalism, and close association
and allegiance of political parties to the major ethnic groups no doubt
instigated the fear of domination exercised by the minority groups. As Coleman
aptly observes, ‘the interlocking leadership of the principal cultural and political
association has furthered frustrated the tribalization of political groups.’
Another
problem emanated from party rivalry between the AG and NCNC. In a bid to gain
more vote in the opponent’s region. The promise of autonomous to the minority
groups created agitation for separate states by the Middle Belt movement,
Benin-Niger Delta and Calabar-Ogoja-Rivers State Movement. To solve the
problem, the Henry Willink Commission was set up to look into the minority
problem. On August 18, the commission submitted a detailed report (Olaniyan and
Alao: 2003, p.6). Four crucial points could be noted from the Willink
Commission report. First, the commission advised that creation of new regions
rather than solving the problems would escalate it. Second, the commission recommended
that one strong police force that would not be subject to the manipulation of
regional politicians be established. Third, it recommended that areas where
problems existed should be declare Special Area and organization of boards that
would complement development be established in the areas. More importantly, the commission advised that
fundamental human rights should be incorporated in the Independent Constitution
(Olaniyan and Alao, p. 17). Consequently, the 1960 constitution came into effect.
The constitution was modeled on Westminster parliamentary style. But unlike the
British constitution which was unwritten, Nigerian constitution was a written
one. The constitution provided for Federal parliament made up of
Governor-General, a Senate and a House of Representative. The former had
forty-four members while the latter had 312 members. Although the constitution
granted the country political independence, not complete sovereignty.
The
Presidential Constitution of 1979
The 1979 constitution,
though was Federal, was not based on the ‘Westminster’ parliamentary model. A
new model, patterned on the ‘Washington Model’ was introduced. On 18 October,
1975, a Constitution Drafting Committee (CDC) was inaugurated by the
Murtala-Obasanjo regime (Agi: 1986, p.22). The Head of State, General Murtala
Muhammed charged the Committee to devise a constitution that would eliminate
cut-throat competition, discouraged institutional opposition to the government,
establish the principle of accountability, removed over-centralization of power
in a few hands (Ibid).
The 1979 constitution provided for presidential system of
government whereby the President was the Head of State and Head of Government.
The governor was the head of government at the state level. A unicameral
legislature was operated at the level while the bicameral legislature system
was adopted at the federal level. The National Assembly comprised of the Senate
and the House of Representatives. While the former was made up of five senators
for each state, the latter was made up of 450 members across the country on
population basis. The Judiciary was vested with the judicial power and the
Supreme Court was the highest court of order. More importantly, the
constitution enshrined principle of separation of powers and check and balances
(Falola: 1985, p.33).
It is significant to note that the 1979 constitution was
not without flaws. First, the constitution concentrated much power in executive
president at the centre. As observes by Falola, the constitution edited out the
common people, hence there was hardly accountability to the electorate by
politicians. The question of minority was another problem of the constitution.
The worst feature of the constitution was the power of the central government
to legislate exclusively on matter which could have otherwise delegated to the
states. Lastly, the constitution provided that where there is conflict between
the Federal and the State on concurrent list, the former should prevail. Hence,
the constitution strengthened the central government more than the remaining
tiers.
The
1999 Constitution
The 1999 constitution
like that of 1979 was designed by the military regime. Unlike the 1979
constitution which at least was debated one year before it was instituted, the
1999 constitution was an imposition on Nigeria by the military regime.
According to Sagay (2000: p.40) the constitution ‘tells a lie about itself…’ Section 4 of the constitution that contains
the legislative that renders state Houses of Assembly inferior (Babawale:2006,
p.1). Section 11 of the constitution empowers the National Assembly to handle
the functions of Houses of Assembly when they are unfit to perform their
function. The control of the Nigerian police force is also within the exclusive
list of the federal government. The implication of all these is that the
constitution has theoretically subjugated the sub-national units to the central
government.
The constitution makes provision for the
formation of multi-party system. The 1999 constitution provides for declaration
of state of emergency in the federation or any part thereof. The 1999
constitution is entrenched with some military decrees such as land use decree
of 1978 and the National Youth Service Corps decree of 1973.
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1914-1960’ in Olaniyan (ed.) The
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1861-1960 in Ikime, O. (ed.) Groundwork of Nigerian History. Heinemann.
Sagay, I.E. (2000). The 1999 Constitution: A Critique.
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[1]
Captain james Pinson Labulo Davies (he was appointed in 1872), C. J. George,
James Johnson, C. A. Sapara Williams, and Dr Obadiah Johnson.
[2]
The traditional chiefs in the Council included Sultan Attairu of Sokoto, the
Alafin of Oyo, the Emir of Kano, Chief Dogho Duma and two educated Africans.
See G.O. Olusanya, Constitutional Development in Nigeria, 8161-1960 in Obaro
Ikime (ed) Groundwork of Nigerian History (Ibadan: Heinemann) p. 520.
