By Hameed Ajibola Jimoh Esq.

Nigeria is currently undergoing a process of constitutional amendment of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution. Some Nigerian citizens (including some lawyers) have called for a new Constitution for Nigeria. In as much as this call for a new Constitution might seem worthy, this paper is of the view that for a new Constitution for Nigeria to be assured, first thing must be done first as canvassed and or recommended by this paper, hence, this paper.

It is my humble submission after having read and studied the provisions of the Constitution especially section 9 of the Constitution which provides for the provisions for altering the provisions of the Constitution that the current 1999 Constitution has not and does not envisage a situation of a repeal of the Constitution for a new Constitution. See section 9 of the Constitution and its wording. Nevertheless, in my humble submission, where the citizens desire a new Constitution, it would then be possible either legally or illegally. In the case of an illegal means of achieving a new Constitution, it is a situation where the current Constitution has been suspended by anarchy or for instance in the case of Military takeover (which is by a coup) against democracy or the current democratic government as was experienced in the Nigerian political history- God forbid the recurrence of this situation! I must however state here that this means of constitutional amendment is very undesirable! On the second means of constitutional amendment which is in using the legal means, this involves using the Constitution to achieve this goal.

For instance, I humbly submit that what section 9 of the Constitution provides for is alteration of the provisions of the Constitution and not repeal of the Constitution, which provides thus ‘9.—(1) The National Assembly may, subject to the provisions of this section, alter any of the provisions of this Constitution. (2) An Act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States. (3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8, or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by a resolution of the House of Assembly of not less than two-thirds of all the States. (4) For the purpose of section 8 of this Constitution and of subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution.’.

Therefore, in my humble view and submission, for there to be a new Constitution, there is need for an amendment of the provisions of section 9(1) of the Constitution by the use of section 9(2) of the Constitution to read thus ‘9.—(1) The National Assembly may repeal this Constitution or subject to the provisions of this section, alter any of the provisions of this Constitution (the new word is underlined by me). Therefore, without any provisions of the Constitution empowering the legislature to repeal the current Constitution or without amending the current Constitution to empower a likely repeal of the Constitution, any such purported repeal without the Constitutional backing is null and void and of no effect by virtue of section 1 of the Constitution which provides thus ‘1.—(1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. (3) 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.’. See the case of ANKPA & ORS v. MAIKARFI & ANOR (2008) LPELR-3776(CA) where the Court of Appeal of Nigeria held on the supremacy of the Nigerian Constitution thus: “It is the law that no provision of any enactment is capable of expanding or subtracting from the elaborate provisions of the Constitution on any subject matter dealt with by the Constitution, this is so because the Constitution is the ground norm. In Attorney-General Abia State v. Attorney-General of the Federation (2002) 6 NWLR Pt. 763 page 264 at 369, Kutigi JSC put it succinctly as follows: “Where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision, then the new provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provision or provisions will be treated as unconstitutional and therefore null and void.” Per ABDU ABOKI, JCA (Pp 18 – 19 Paras D – B).

Finally therefore, in my humble submission, unless the current constitution is amended to allow a repeal of the current Constitution and then, the procedures laid down for such repeal is complied with, any purported repeal of the current Constitution is unconstitutional, null and void and ineffective for being insistent with the current Constitution.

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