THE UNCONSTITUTIONALITY OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, A CRITICAL APPRAISAL OF ITS CONSTITUTIONALITY IN CONFORMITY WITH MODERN CONSTITUTIONAL PRINCIPLES. BY THOMAS DAVID O.(EQUITY) - Law student RSUST

THE UNCONSTITUTIONALITY OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, A CRITICAL APPRAISAL OF ITS CONSTITUTIONALITY IN CONFORMITY WITH MODERN CONSTITUTIONAL PRINCIPLES.

BY THOMAS DAVID O.(EQUITY) - Law student RSUST...

The Black's law dictionary defines a constitution as the organic and fundamental law of a nation or state which may be written or unwritten establishing the character and conception of its government, laying the basic principles which its internal life is conformed, organizing the government and regulating, disturbing, limiting the functions of its different departments, prescribing the extent and manner of exercise of sovereign powers, it is a charter of government deriving its whole authority from the governed. It declares further that a constitution is the written instrument agreed upon by the people of the union and officers of the government in respect of the points covered by it and in opposition to which any act or ordinance of such department or officer is declared null and void.
Constitutions made under colonial rule are described either as imperial or governors' constitution. However, constitutions that are autochthonous are home- made and home-grown which is in contradistinction with constitutions that are imposed and imperially processed. It is a constitution which they acknowledge and accept as their own instrument. It is in the light of the above that the unconstitutionality of the the 1999 constitution shall be examined in this article.

Before the colonial rule, the geographical area now called Nigeria was a conglomeration of different settlements. The people and their territories were subsequently exposed to western influence.
A very remarkable starting point in the history of constitutional- making in Nigeria is 1914. This was achieved by the (Nigerian council) order - in council 1912, the Nigeria protectorate order in council 1913 and the letters patent of 1913.
Between 1922-1954, four different constitutions were made. One common thing about these constitutions was that they were imposed by the imperialists and were therefore non autochthonous. Unlike the previous constitutions, the 1954 constitution was a product of constitutional conferences organized along party lines, however, its legal authority and source was still the British parliament. The 1960 constitution was also proceeded by constitutional conferences but its legal source if authority like the 1954 constitution was still the British parliament.
Since the autochthony of a constitution is hinged on it being home- made, the pre-independence constructio, ns cannot be said to be autochthonous strictly speaking as they were enacted and processed by the British parliament.
Furthermore, prof. Ben Nwabueze has argued that the 1963 Republican constitution was not home - grown as it was enacted by the Nigerian Parliament pursuant to the powers derived from the imperially-processed 1960 constitution. He further argued that the 1963 constitution was authorized (though indirectly) by the British government and so was ineffective to break the link the British government had on Nigeria's legal order.
Pursuant to the coming into force of the military on Jan. 15 1966 and beyond, the various military government enacted for the country through Decrees and Edict which suspended parts of the constitutions especially section 1 which provide for the supremacy of the constitution, this decrees also conferred legitimacy on them e.g: the constitution, suspension and modification decrees no.1 of 1966, no.1 of 1984, no. 107 of 1993 etc. Any unsuspended part of the constitution which was inconsistent with the Decree or Edict was null and void to the extent of its inconsistency with the Decree. This was observed by the court in the case of COUNCIL OF UNIVERSITY OF IBADAN V. ADEMOLEKUN (1967)1 ALL NLR 213, and OJOKOLOLOBO V. ALANU (1987)3 NWLR (PT.61) P.377.
The courts were further proscribed from entertaining cases challenging the competence of the federal & state military governments to promulgate a decree or edict as reiterated in LEKWO V. JUDICIAL TRIBUNAL(1997)2 NWLR (pt.276) p.410. Section 6 of Decree no. 1 of 1966 is an example of such decrees that ousted the jurisdiction of court. See the supreme court case of LAKANMI V. AG WESTERN REGION (197) UILR P.201.
The then military administration enacted the 1979 constitution which the process was Began in 1975 with the appointment of 49 man committee. This committee was led by chief F.R WILLIAMS . The committee produced a draft constitution and and sent it to the then constituent Assembly which deliberated on it and made some amendments before forwarding it to the then supreme military council. The supreme military council tampered with the draft constitution by inserting some Decrees which included:
a. THE NYSC DECREE NO. 24 OF 1975
b. THE LAND USE DECREE NO.61976
c. THE NIGERIA SECURITY ORGANIZATION DECREE NO.10 1976.
This was provided for under section 294(5) of the 1979 constitution. Hence making their repeal and amendment impossible unless the requirements provided in section 9(2) are complied with.
It is admitted that the 1979 constitution was the nearest to how a constitution can be made in accordance with modern constitutional principle, it is however submitted that the constitution was not autochthonous . this is because :
- the military government which enacted the constitution was an unconstitutional government as military rule come into force by means of coup which is against modern constitutional principles and unconstitutional too. Section 1(2) of the said constitution prohibited any group or person from governing Nigeria except in accordance with the provisions of the constitution. Hence, the government is ab initio unconstitutional.
- Article 4 of the constitutive Act Act of the African Union (AU) provides in paragraph (p) for the condemnation, and rejection of unconstitutional change if government( which coup is one).
- specifically, article 30 of the constitutive Act provides that government which shall come to power through unconstitutional means shall not be allowed to take part in the activities of the union.

A constitution making committee was set up in 1983, and 1987 to prepare the constitution for the new democratic regime. The 1989 constitution which was designed to come into was was jettisoned in 1993 following the annulment of the presidential election results by Gen. Ibrahim Babangida. Another was the 1995 constitution which never came into force because it was neither promulgated into law nor adopted before the death of Gen. Sani Abacha in 1998.
The 1999 constitution is a product of the military administration of Gen. Abdusalmi Abubakar. The administration did not organise an elaborate constitution making process for the 1999 constitution to give way to the democratic dispensation. A 25 man committee was set up to organise a debate on the 1995 constitution in 1998. The report of the committee which was submitted to the Head of State indicated that Nigerians preferred the 1979 constitution to the ill-birthed 1995 constitution.
A draft constitution was therefore produced on the report of the committee and on the provisions of the 1979 constitution, the draft was reviewed by the provisional Ruling Council and subsequently enacted into law as the 1999 constitution with effect from 29 may 1999.

The preamble of the 1999 constitution which to an extent provides for its autochthony is questionable against the backdrop of those words in a constitution which was processed and enacted into existence by the departed military rulers who were not the people's elected representatives which was an illegitimate government ab initio.

It is my humble opinion that a constitution made by a military government which in itself is unconstitutional can never be constitutional as its making do not reflect the will and aspirations of the people but was forced on them by the military and never made by those elected by the people themselves . This as stated above is a great contravention of section 1(2) of the said constitution and utterly against modern constitutional principles. This is because the 1999 constitution is exactly a copy of the 1979 constitution with only little and sectional modifications and the 1979 constitution as I averred earlier is an unconstitutional one hence the unconstitutionality of the 1999 constitution.
The 49 men who drafted the 1979 constitution from which the 1999 constitution was adopted were never the elected representatives of the people. The constituent Assembly which considered the draft constitution consisted of elected and selected members. The elected members emerged through electoral college members made up of local government council chairmen and members who were themselves unelected representatives of the people. The report of the constituent Assembly was not subject to a referendum for adoption by the people, and the attempt by the supreme military council to insert some decrees into the draft constitution all altered the autochthony of the constitution hence pointing to its unconstitutionality and non adherence to modern constitutional principles.

From the foregoing propositions , I hereby submit that the 1999 constitution of the federal Republic of Nigeria being adopted from the 1979 constitution and promulgated into law by a military government which is ab initio unconstitutional is in itself unconstitutional.