*NIGERIA HAS ONLY ONE LEGITIMATE CONSTITUTION: THE 1963 REPUBLIC CONSTITUTION
©Olusola Oni
Leicester, United Kingdom
23 JUN 2023
Our Ref: YoruExit/Nig2
President Bola Ahmed Tinubu
President of Nigeria
Aso Rock
Abuja
Nigeria
Dear President Tinubu
Re: NIGERIA HAS ONLY ONE LEGITIMATE CONSTITUTION: THE 1963 REPUBLIC CONSTITUTION
I graduated as a doctor from the University of Ibadan Medical School 50 years ago today. I am using this remembrance day to write to respectfully remind you Sir, and draw your attention to, an important constitutional matter. Knowing that you are a confirmed democrat, I here respectfully request that you put in place measures to revert Nigeria back to the 1963 Republic Constitution. That Constitution, not the 1999 Constitution, is the legal constitution of Nigeria today, 23 June 2023.
Permit me to explain Sir.
The Secretary of State for the colonies (Mr Ian MacLeod) when moving the Second Reading of the Nigeria Independence Bill, on 15 July, 1960, in the British House of Commons, said this:
‘On fundamental matters, however – I am sure that Nigeria is right again in this – there will be a rather more elaborate procedure for what are called the entrenched clauses. For these clauses, there will be a two-thirds majority required of all members of both Houses of the Federal Parliament and the concurrence, although by bare majority in this case, of both Houses of at least two of the regions. Thus, although change can take place, there is and there will be a considerable degree of firmness and stability and the foundations of which the independence of Nigeria is built.’
The parties to independence inserted the aforesaid ‘entrenching clauses’ in the constitution to exactly specify what was required to make changes to the regional arrangement within Nigeria.
Section 3 of the 1963 Republic Constitution entrenched as follows:
‘Alterations to section 3 of this Constitution for the purpose of establishing new Regions out of other territories shall be effected only in accordance with the following procedure:
(a) a proposal for the alteration shall be submitted to each House of Parliament and, if that proposal is approved by a resolution of each of those Houses supported by the votes of at least two-thirds of all the members of that House, the proposal shall then be submitted to the legislative houses of all the Regions; and
(b) if the proposal is approved – (i) by a resolution of each legislative house of a majority of all the Regions; or (ii) by a resolution of each legislative house of at least two Regions, including any Region comprising any part of Nigeria that would be transferred to the new Region under the proposal.’
Section 4 of the 1963 Republic Constitution entrenched as follows:
‘Alterations to section 3 of this Constitution for the purpose of altering the boundaries of territories by the transfer of any part of one territory to another territory shall be effected only in accordance with the following procedure –
(c) a proposal for the alteration shall be submitted to each House of Parliament and, if that proposal is approved by a resolution of each of those Houses supported by the votes of at least two-thirds of all the members of that House, the proposal shall then be submitted to the legislative houses of all the Regions; and
(d) if the proposal is approved – (i) by a resolution of each legislative house of a majority of all the Regions, including any Region to which any part of Nigeria comprised in another territory would be transferred under the proposal; or (ii) by a resolution of each legislative house of each Region comprising any part of Nigeria that would be transferred either to or from that Region under the proposal.’
In relation to the 1963 Republic Constitution as a whole,
i. Section 4(10) entrenched as follows:
‘The provisions of this Constitution shall not be altered except in accordance with the provisions of this section.’
ii. Section 5(2) entrenched as follows:
‘Subject to the provisions of this Constitution, the constitution of a Region may be altered only by a law enacted by the legislature of that Region.’
An ‘entrenched clause’ Sir is explicitly protected by the constitution. It has a special status. It is immune from change by legislation or other means. It is a constitutional tool that renders legal change almost impossible. It can only be changed by the process of a constitutional amendment. The 1999 Constitution, which was a military decree, is not a constitutional amendment to the 1963 Republic Constitution. The 1999 Constitution is not able to override the ‘entrenched clauses’ contained in the 1963 Republic Constitution. The 1999 Constitution is illegal and illegitimate because of the ‘entrenched clauses’ that the parties deliberately inserted into the 1963 Constitution, with which the parties intended to bind future generations.
Sadly Sir, Nigeria has a tradition and culture of constitutional illegitimacy. Between amalgamation on 1 January, 1914 and 25 May, 1999, Nigeria had several constitutions. All but one of those constitutions have been imposed. Constitutions made between 1914 and 1960 were imposed by the colonialists. Constitutions made between 1966 and 1999 were imposed by military dictators. One way or another, all the military gestated constitutions have been tainted, and they are all illegitimate. Only the 1963 Republican Constitution, was owned by the people as stated in the preamble:
‘We the people of Nigeria, by our representatives here in Parliament assembled, do hereby declare, enact and give to ourselves the following Constitution-‘
The military dictators suspended parts of the 1963 Republic Constitution, but they never completely, entirely or fully annulled the constitution. After the coup of 15 January 1966, the incoming military junta did not annul the 1963 Republic Constitution. Decree No.1 promulgated on 17 January 1966 provides at 1:
‘(1) The provisions of the Constitution of the Federation mentioned in Schedule 1 of this Decree are hereby suspended.
(2) Subject to this and any other Decree, the provisions of the Constitution of the Federation which are not suspended by subsection (1) above shall have effect subject to the modifications specified in Schedule 2 of this Decree.’
Decree No. 28, 9 May 1970 also did not annul the 1963 Republic Constitution. The decree merely affirmed Decree No. 1 of 17 January 1966, and declared in addition that:
‘…any decision, whether made before or after the commencement of this Decree, by any court of law in the exercise or purported exercise of any powers under the Constitution or any enactment or law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not inconsistent with the provisions of a Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of the making thereof.’
The military only suspended the 1963 Republic Constitution. The word ‘suspend’ means to put in abeyance, that is, possessing of the ability to come back to life. Passage of time is of no obstacle. The situation of Estonia provides excellent instruction. The Estonians adopted a constitution in 1938. That constitution was suspended during the Soviet occupation that lasted from 1940 to 1991. When Estonia regained independence in 1991, it re-established the constitution of 1938. Your government Sir has a legal and a moral duty and obligation to do the same as Estonia and revert Nigeria back to the 1963 Republic Constitution.
The military decrees were concerned primarily with the power of the junta to make legislation, and to obviate judicial decisions that might reject decrees that the junta made. Decree No. 1 of 17 January 1966, and Decree No. 28 of 9 May 1970, became naturally obsolete when the military dictators finally, and voluntarily, left office in May 1999. Law making was no longer in the hands of the military and the courts were no longer fettered. From then on, the 1963 Republic Constitution came alive again.
There is no moral or legal justification to confer perpetual validity on the military decrees after the military usurpers had relinquished power. Yaqoob Ali, J in Asma Jilani v Government of the Punjab & Anor (1972) PLD SC 139 said this:
‘A person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law-making. May be, that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper; he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers.’
I should like to respectfully suggest Sir that you referred this important constitutional matter, as a matter of priority, for Judicial Review by the Supreme Court.
Respectfully yours
Baasegun (Dr) Olusola Oni
MBBS, MSc, MD, LLM, GDL, FRCSEd, FWACS, FMCS, FRCSEng
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