By Mahmood Abdulbasit Adewole[1]

Introduction:

The Constitution of any country is the grundnorm, the supreme law from which every other law in the country derives its authority, authenticity and legitimacy. This is evident in Section 1(1) of the Constitution of the Federal Republic of Nigeria 1999 which authoritatively and expressly stipulates that the “Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.” Section 1(3) of the same Constitution further provides that if “any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”[2] Be that as it may, considering the fundamental nature of the Constitution and the dynamic nature of society, it is easy to imagine that situations would arise requiring some provisions of the constitution to be amended.

The Mode of Altering provisions of the 1999 Nigerian Constitution as provided under Section 9 of the Constitution

The realization of the special nature of constitutional amendment, distinct from the other legislative powers of the National Assembly, necessitated the provision of Section 9(1) which confers the power to amend any part of the constitution on the National Assembly. To complete the self-sufficiency of the section, the unique mode of determining the level of majority required for purposes of the section is stated in the section depending on which part of the Constitution is to be amended.[3] For better appreciation of this section, the amendment procedure is categorized into two (2) in this work; vis-à-vis, the four-fifths majority and the two-thirds majority.

First, in the case of the amendment of Section 8,[4] Section 9,[5] and Chapter IV[6] of the 1999 Constitution, the matter has to be first tabled in the different legislative Houses of the National Assembly where, by virtue of Section 9(3), each of the Houses, acting separately, must approve the amendments by four-fifths majority of all the members of the House concerned.[7] That is to say, at least 88 members of the Senate and 288 members of the House of Representatives.[8] Thereafter, the proposed amendment is sent to the Houses of Assembly of the States for approval by the resolution of not less than two-third of all the States in Nigeria. At present, there are 36 States in Nigeria, thus, the proposed amendment must be passed by resolution of the House of Assembly in at least 24 States.[9]

Second, in respect of the amendment of any other section of the 1999 Constitution, the position as highlighted above is applicable except that the majority required in each House of the National Assembly is a two-thirds majority.[10] That is to say, at least 73 members of the Senate and 240 members of the House of Representatives. No further act is required to transform the approved bill to an Act of the National Assembly. In the words of Honourable Justice E.N. Nnamani, “this is because immediately the proposal is passed by the National Assembly and in the required number of states’ Houses of Assembly (i.e. two thirds of all such Houses in the federation), the proposal translates into an integral part of the subsisting constitution.”[11]

It is trite that after the requisite number of the two legislative house of the National Assembly and that of States Houses of Assemblies have approved the alterations, the proposed alterations will be presented before the President for his/her assent to it. Even though Section 9 is silent on what the process would be if the President refuses to assent the alterations. However, it has been argued that since the alteration is a type of Bill, the process would be the same as in any other type of Bill where presidential assent is not given.[12] That is, such a Bill shall be re-called and re-passed by the National Assembly, and it automatically becomes a law even without the assent of the President.[13]

Conclusion:

The controversy that has arisen concerning the interpretation of the provisions of the 1999 Constitution on its amendment is not to be unexpected. It is a positive development, as it underscores the vibrancy of constitutional democracy in Nigeria. It significantly improves our jurisprudence. It is beneficial in fashioning a constitution that is autochthonous; a constitution made by the people, for the people and reflective of the wishes and aspirations of the people. The current civilian dispensation, most certainly, has been of tremendous benefit to constitutional law and constitutionalism in Nigeria.[14] Be that as it may, it is obvious from Section 9(1) of the 1999 Constitution that no part of the said Constitution is beyond amendment. What is important is that the right procedure is followed in every amendment as stipulated in Section 9 of the 1999 Constitution.

[1] A Nigerian Lawyer and an Ardent Writer; he can be reached via [email protected]

[2] Ugwu v Ararume (2007) 12 NWLR (Part 1048) 367 SC; A-G Federation v Abubakar (2007) 8 NWLR (Part 1041) 1 SC.

[3] I999 Constitution, sec. 9(4)

[4] This section relates to the creation of new States and new local governments, as well as boundary adjustment between two or more States and between two or more local governments

[5] This is the amendment provision itself.

[6] This chapter contains the provisions relating to fundamental human rights.

[7] 1999 Constitution, sec. 9(4)

[8] Ibid, sec. 48

[9] Ibid, sec. 3(1)

[10] Ibid, sec. 9(2)

[11] E.N. Nnamani, ‘A Comparative Analysis of the Procedure for Alteration of Federal Constitutions: Nigeria and the United States in Perspective’, (2010) 1 EBSU Journal of International Law and Juridical Review 264, 268.

[12] Accessed on 31/2/2021

[13] 1999 Constitution, sec. 58 (4)

[14] Nat Ofo, ‘Spotlighting the Inadequacies of Section 145 of the Constitution of the Federal Republic of Nigeria 1999’, (2010) 1(3) Apogee Journal of Business, Property and Constitutional Law 75