Overview of Constitutional History
of Nigeria till Present
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 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 unit 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.
References
Agip,
S.P.I. (1986). ‘The Problem of Incorporating ‘the Westminster Model’ in a
Written Constitution: The Experience of Western Nigeria, 1962-1964 and
Subsequent Reaction’ Journal of African
Politics, Development and International Affairs, Vol. 13, No. 1. Pp.13-32.
Alao,
Akin (2006). ‘Constitutional Development, Sub-nationalism and the Political
Process in Nigeria’ in Alao, Akin (ed.) The
Nigerian States: Language of Its Politics. Rex Charles & Collins
Publisher, Nigeria.
Babawale,
Tunde (2006). Nigeria in the Crisis of
Governance and Development. Lagos: PARC.
Burn,
Sir Alan (1978). History of Nigeria.
London: George Allen & Unwin. Eight Edition.
Coleman,
J.S. (1986). Nigeria: Background to
Nationalism. Benin City & Katrineholm: Broburg & Wistrom.
Falola,
Toyin (1985). The Rise and Fall of
Nigeria’s Second Republic, 1979-1984. London: Zed Books Ltd.
Okonkwo,
D.O. (1962). History of Nigeria in a New
Setting. Aba: The International Press.
Olaniyan,
R.A. and Alao, Akin (2003). ‘The Amalgamation, Colonial Politics and
Nationalism, 1914-1960’ in Olaniyan (ed.) The
Amalgamation and Its Enemies. Ife. Obafemi Awolowo University Press Ltd.
Olusanya,
G.O. (1980). Constitutional Development
in Nigeria, 1861-1960 in Ikime, O. (ed.) Groundwork of Nigerian History.
Heinemann.
Sagay,
I.E. (2000). The 1999 Constitution: A
Critique. Lagos: Centre for Constitutionalism & Demilitarization
(CENCOD).
Tamuno,
T. N. (1967). Governor Clifford and Representative Government’ Journal of historical Society of Nigeria, Vol.
IV, No1. Published by Historical Society of Nigeria and the Ibadan University
Press.
[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.
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