Presidential powers, national confab and new constitution

It is a reality that from independence in 1960 to 1999, Nigeria has changed and operated more than 4 new Constitutions. The processes of abrogating and repealing old Constitutions and the processes of drafting new Constitutions and enacting laws which give force of law to the new Constitutions in Nigeria are well known, the practice […]

It is a reality that from independence in 1960 to 1999, Nigeria has changed and operated more than 4 new Constitutions. The processes of abrogating and repealing old Constitutions and the processes of drafting new Constitutions and enacting laws which give force of law to the new Constitutions in Nigeria are well known, the practice and precedence thereto are fully documented. The powers to take necessary actions in each of the processes thereto are accordingly provided for in our extant Constitution and other laws.
It has further been postulated by some people that, the constitution to be agreed to by the national conference should pass through a referendum to become law. Such postulation is a recipe for legal confusion and illegality. Referendum is unknown to our laws, unknown to our precedents and practices and unknown to our extant Constitution. We can only follow our laws, precedents and practices.
There is no extant law regulating the promulgation or enactment of a brand new constitution or abrogating an existing one in Nigeria. Given this lacuna, recourse has to be made to established precedents and practices in these regards as a guide as follows: The Sir Hugh Clifford Constitution of 1922 was promulgated into law by the Order-in-Council of the Queen of England. The Richards Constitution of 1946 was promulgated into law by the Order-in-Council of the Queen of England, while the same Order repealed the 1922 constitution. The Macpherson’s Constitution was promulgated in 1951 by the Order-in-Council of the Queen of England while the same Order repealed the 1946 constitution. Unlike its predecessors, there was significant participation of Nigerians in its making from the village level up to the Ibadan General Conference of 1950; Between 1951 and 1954, two important constitutional conferences were held in London and Lagos between Nigerian political leaders and the British government. These resulted in a new 1954 Federal Constitution which was promulgated into law by the Order-in-Council of the Queen of England and the same Order repealed the 1951 constitution. The 1960 Independence Constitution was also promulgated into law by the Order-in-Council of the Queen of England and the same Order repealed the 1954 constitution. The 1960 Independence Constitution was changed in 1963 by the Nigerian Parliament through the repealed Order-in-Council of the Queen of England which gave force of law to the 1960 Independence Constitution and replacement of same with a new Act which brought the 1963 Republican Constitution to life. The 1979 Presidential Constitution was brought to life by the repeal of the Act of Parliament of 1963 which promulgated the 1963 Republican Constitution and replacement of same with a new Decree that promulgated the 1979 Constitution into law. The 1989 Constitution was promulgated into law by the amendment of the Decree that promulgated the 1979 Constitution and replacement of the Scheduled thereto which contained the old Constitution with a new Schedule which contained the new Constitution. The 1999 Constitution was promulgated into law by the repeal of the 1979 Constitution (promulgation) Decree and replacement of same with a new Decree 24 of 1999 which promulgated the 1999 constitution into law. The above precedents have been and remained the established extant procedure and practice of abrogating extant old constitutions and giving force of law a new one.
Having established the above, the questions to be asked again are: (a) How can we draft and give to Nigeria a brand new people’s Constitution which is crafted and produced by all the people of all the ethnic nationalities that make up Nigeria? (i.e. all Nigerian people). (b) How do we promulgate this constitution into law without alteration or amendment by the authorities constitutionally mandated to modify our laws to give force of law to the new people’s constitution? On “(a)”, above, we conclude that this can be done through a national Constitutional Conference which has representation of all the ethnic nationalities that make up the nation state Nigeria including religious leaders of the two major religions in Nigeria. This national conference would discuss the conditions and terms of our union and agree to terms that would ensure and sustain a fair, just, equitable, Godly and egalitarian nationhood. This Conference would also draft a new constitution that incorporate all the terms reached accordingly. On “(b)” above, we conclude that the only necessary action is to follow established precedents/practices and our laws. That the resolutions and decisions reached at the National Conference (being the outcome and product of the exercise of the constitutionally guaranteed sovereignty of the people of Nigeria of all ethnic nationalities), can be crafted into a brand new Constitution of the Federal Republic of Nigeria and be so integrated into our extant laws by the President of Nigeria through the exercise of the power of modification conferred on him by Section 315 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The President should by Order, modify Decree 24 of 1999 by deleting or omitting the Schedule thereto ( which is the extant 1999 Constitution ) and adding a new Schedule thereto (which shall be the brand new Constitution as crafted by the National Conference) and published same in the Federal Government official Gazette. The brand new Constitution thereto would have force of law thenceforth, while the deleted old 1999 Constitution ceases to exist from thence. It should be noted that the extant Constitution of the Federal Republic of Nigeria 1999 (as amended) was given force of law by Decree 24 of 1999, to which the extant Constitution is a only Schedule thereto. Decree 24 is an existing law defined under Section 315(4) of the 1999 Constitution and is at present an Act of the National Assembly which can be repealed and or amended by the National Assembly or modified by the President of Nigeria pursuant to Section 315 of our extant Constitution.
The question may be asked, is enacting a new constitution that simple? It is of paramount necessity that we know and note as follows: (i) That the power to modify existing laws (i.e. amend, alter, repeal, add, omit/delete any existing laws) at the federal level as provided for in Section 315 of the our extant Constitution, 1999 (as amended) is vested on the President of Nigeria and the Nigeria Law Reform Commission; (ii) that the Section 315 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which vest the President of Nigeria with the powers to modify any existing law states as follows: “315. (1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be (a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and …. (2) The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution. (4) In this section, the following expressions have the meanings assigned to them, respectively -(a) “Appropriate authority” means -(i) the President, in relation to the provisions of any law of the Federation,
(b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date; and (c) “modification” includes addition, alteration, omission or repeal.”
It is absolutely clear that we can assemble to discuss, reach agreement, craft, enact and give to ourselves a brand new constitution which provides for a just, fair and equitable terms of cooperation and integration which guarantees the fundamental rights, aspiration, fairness, justice, self-determination and identity, and protection of Godly self-interest of all to guarantee satisfaction, peace, order and progress of our nation. All that is needed is the political will and determination of the peoples of Nigeria and the President of Nigeria.

Dr. Etimbuk A. E. Sunday writes from the Centre for Citizen Sovereignty and Constitutional Law Research, Abuja