By Eric Teniola

You will discover the similarities between Section 8 of the 1979 and 1999 Constitutions. So far, these are the two Constitutions we have operated in our Presidential System between 1979 to 1983 and since 1999 to date. I covered the Constitution Drafting Committee proceedings and also the proceeding of the Constituent Assembly, the issue of creation of more states was never discussed at the Constitution Drafting Committee.

Of the fifty members of the Constitution Drafting Committee, I think only four of them are still alive. They are Alhaji Lateef Olufemi Okunnu(90), Professor Benjamin Obi Nwabueze (91), Alhaji Mamman Daura(83) and Professor Godwin Anibeze Odenigwe(97). They are my living witnesses.

While inaugurating the Constituent Assembly on October 6, 1977, the then Head of State, General Olusegun Obasanjo GCFR, warned that the no go areas which the Assembly must not discuss include the composition of the Supreme Military Council and the creation of states.

He declared on that day “I believe also that valuable time will be saved by sticking to your “Term of Reference” as closely as possible. May I emphasise that the purpose of your being here is to discuss the draft Constitution already produced by the Constitution Drafting Committee and to come out with your recommendations. These will then be taken to the Supreme Military Council. Thereafter, a Decree on the subject of Constitution for the Federal Republic of Nigeria will be considered and promulgated to usher in the new Constitution.

Your time here is therefore precious and should be described to this all important subject. All diversion from it of the consideration of extraneous matters which are not the subject for discussion by the Constituent Assembly should be avoided. The Electoral Regulations Decree which will govern the conduct of the first elections before the departure of the Military Administrations will be promulgated by the Supreme Military Council and will be placed before the Constituent Assembly for consideration as a schedule to the Constitution for use in post Military Administration elections”.

On November 1, 1977, while presenting the bill for the new Constitution, the Chairman of the Constitution Drafting Committee, Chief Frederick Rotimi Alade Williams SAN (16 December 1920 – 26 March 2005) spoke on the promulgation of the new Constitution, foundation of the Constitution, the Federal Sharia Court of Appeal and many other issues. He did not touch the issue of creation of states. Same with the chairman of the Constituent Assembly, Mr. Justice Egbat Udo Udoma (21 June 1917 – 2 February 1998). Yet by curiosity, Section 8 was smuggled into the 1979 Constitution by the ARMY.

What happened on the last two days of the sitting of Constituent Assembly, that is on June 1, 1978 and on Monday, June 5, 1978, was that some members of the Assembly, wanted their states to be created so that it could form part of the bill which was mandatory for the Supreme Council to approve.

The Chairman of the Assembly, Mr. Justice Egbert Udo Udoma objected to the procedure along with some members including Mr G.A. Graham Douglas. The members who wanted the states were Chief G. Ajeigbe, who wanted Ibadan state, Chief Bisi Onabanjo, who wanted Ijebu state with Remo inclusive, Dr. Joseph Wayas, who wanted Ogoja state, in the present Cross River state, Chief S.O. Apetuje, Chief S.F. Fajobi and G.A. Falaye, who wanted Ekiti state, Alhaji S. Z. Daura who wanted Katsina state among others, Chief C.C. Onoh who wanted Wawa state which is the present Enugu state.

In his ruling on June 1, 1978, the chairman of the Assembly, Justice Udo Udoma ruled that “all the Amendments to Section 3 of the Bill, crystallising as they do and falling in reality into the category of proposals for the creation of new states, must be considered in my view, in their widest perspective. For the purpose of the ruling, consideration must rest on two main prongs.

Firstly, the matter falls squarely within the ambit of the overall policy of the Federal Military embracing as it does its well-scheduled and articulated programme to return the country to civil rule in 1979. That the programme has been prompted by the highest of motives and the spirit of rare patriotism cannot be denied. That it has received the unsolicited approval and support of the overwhelming majority of patriotic Nigerians cannot be contradicted. The rigidity and speed with which the policy has been pursued despite detractions has marked out our present military leaders as men endowed with inflexible determination. Any attempt to frustrate such a programme, in my view, would be counterproductive, and may be considered unpatriotic in the extreme.

Secondly, and this is perhaps more important having regard to the powers of this Assembly, there is the legal aspect of the matter. As was pointed out years ago by the Dicey in his Studies of the American Constitution, the by-product of Federalism is inescapably legalism. There is therefore the question of the competence in law of the Assembly to deal with these amendments bearing in mind the principle of ultra vires.

Section 3 of the Bill stipulates that the Federal Republic of Nigeria shall consist of 19 states therein named. The territorial area encompassed by each such State is also precisely defined in the First Schedule to the Bill. The 19 States were created long before this Assembly was set up. In particular seven of them were created after due and proper inquiry; and indeed it was for the governance of the Federation and the 19 States that the constitutional proposals under deliberation by the House were designed.

Many honourable Members do not accept nor are they satisfied with the provision of Section 3 of the Bill. They have therefore put forward various amendments all of which proposed brand new states to be thereto added. In this way the number of states which should subsist and constitute the Federal Republic of Nigeria on the coming into operation of the new Constitution in 1979 or six months thereafter would be far in excess of the present 19 states.

Among some of the new States proposed mention may be made of Katsina, Akwa Ibom, Enugu, Kogi, Port Harcourt, Anioma, Qua-Iboe, etc. Indeed, one amendment has made bold to propose 31 new States, which makes one wonder the seriousness with which these proposal have been submitted to this House.

If all these proposals were accepted, voted upon and passed into law, the Assembly would then be writing into the Constitution roughly over 40 new States not yet created. Such a provision in the Constitution, without doubt, would of course be meaningless and unintelligible and would make nonsense of the whole of the Constitutional exercise.

This is a difficult matter of considerable historical importance which cannot be dismissed summarily. Realising the sensitive nature of the matter and the depth of feelings of some honourable members on the issue of the creation of new states, I felt impelled to allow the debate on the matter to be opened. In the ordinary course of events I should have refused the Amendments to be listed, and, if listed, to have them struck off as not only out of order but disorderly. The debate has been interesting but somewhat noisy. Members have conducted them with decorum and restraint. To be continued tomorrow.