The Intricate Web: Unpacking the Legal Procedure for Constitutional Amendment in Nigeria

Nigeria, a nation of immense diversity and complex socio-political dynamics, operates under a written constitution that serves as the supreme law of the land. This fundamental document, the Constitution of the Federal Republic of Nigeria, 1999 (as amended), defines the structure of government, allocates powers, and entrenches the rights and obligations of its citizens. However, no constitution, no matter how meticulously crafted, can remain static in the face of evolving societal needs and aspirations. Therefore, provisions for its amendment are not just a matter of legal formality but a crucial mechanism for national growth, adaptation, and progress.

The process of amending the Nigerian Constitution is by design rigid and multi-layered, reflecting the seriousness with which any alteration to the nation’s foundational legal framework is viewed. This rigidity is intended to prevent arbitrary changes and ensure that amendments truly reflect a broad national consensus, safeguarding the stability and integrity of the federal system. This comprehensive blog post will delve into the intricate legal procedure for constitutional amendment in Nigeria, exploring its historical context, the various stages involved, the roles of key institutions, the inherent challenges, and the potential for future reforms.

Understanding the Essence of Constitutional Rigidity

Before dissecting the amendment process, it’s essential to grasp the concept of constitutional rigidity. Unlike ordinary laws that can be passed or repealed by a simple majority vote in the legislature, constitutions, especially those of federal states like Nigeria, are typically “rigid.” This rigidity manifests in requiring a special, more stringent procedure for their alteration. The rationale behind this is multifold:

• Protecting Fundamental Principles: Constitutions embody the core values, principles, and institutions upon which a nation is built. Easy alteration could undermine these foundational elements, leading to instability and a loss of national identity.
• Preventing Factional Tyranny: A rigid amendment process acts as a safeguard against a temporary majority imposing its will on the entire populace or future generations. It forces a broader consensus.
• Ensuring Stability and Predictability: A stable constitutional framework provides certainty and predictability in governance and legal matters, crucial for national development and investor confidence.
• Reflecting Federal Character: In a diverse federation like Nigeria, a rigid amendment process ensures that the interests of the constituent states are adequately considered and protected, preventing the dominance of the federal government or a few powerful states.

Historical Evolution of Constitutional Amendment in Nigeria

Nigeria’s constitutional journey has been marked by a series of documents, each reflecting the political realities and aspirations of its time. From the colonial constitutions like the Clifford Constitution of 1922, the Richards Constitution of 1946, and the Macpherson Constitution of 1951, to the independence Constitution of 1960 and the Republican Constitution of 1963, the mechanisms for constitutional change have evolved. The advent of military rule significantly altered this trajectory, with military decrees often overriding constitutional provisions. However, with the return to democratic rule in 1999, the 1999 Constitution re-established a formal and entrenched procedure for its amendment.

The 1999 Constitution, though a product of military promulgation, was intended to usher in a new era of democratic governance. Yet, from its inception, it has faced criticisms, with many arguing that it does not adequately reflect the “will of the people” as claimed in its preamble. This perceived legitimacy deficit has fueled continuous calls for its review and amendment. Over the years, there have been several attempts at constitutional alterations, with varying degrees of success.

The 9th National Assembly, for instance, recorded a significant number of constitutional alterations, addressing issues such as financial independence of state judiciaries and legislatures, power devolution (e.g., delisting railways and electricity generation/distribution from the exclusive list), and other crucial areas. These historical attempts highlight both the inherent need for constitutional flexibility and the persistent challenges in achieving comprehensive reforms.

The Legal Framework: Section 9 of the 1999 Constitution

The bedrock of constitutional amendment in Nigeria is enshrined in Section 9 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This section outlines the primary procedures for altering the provisions of the Constitution. It distinguishes between two main categories of amendments based on the nature of the provisions being altered:

1. General Provisions (Section 9(2))

This sub-section deals with the alteration of most provisions of the Constitution. The procedure is as follows:

• Proposal: A Bill for an Act to alter any provision of the Constitution must originate in either the Senate or the House of Representatives (the two chambers of the National Assembly).
• Two-Thirds Majority in National Assembly: The proposal must be supported by the votes of not less than two-thirds majority of all the members of each House of the National Assembly. This means that a significant number of legislators in both the Senate and the House of Representatives must vote in favour of the proposed amendment. It’s crucial to note “all members,” not just those present and voting, which sets a high threshold.
• Approval by State Houses of Assembly: After passing the National Assembly, the proposed amendment must then be approved by a resolution of the Houses of Assembly of not less than two-thirds of all the States of the Federation. With 36 states in Nigeria, this translates to at least 24 State Houses of Assembly agreeing to the amendment. This requirement underscores Nigeria’s federal structure and ensures state participation in fundamental constitutional changes.

2. Entrenched Provisions (Section 9(3))

This sub-section deals with alterations to particularly sensitive or “entrenched” provisions of the Constitution. These provisions are considered so fundamental that they require an even more stringent procedure for amendment. Section 9(3) specifically mentions:

• Section 8 of the Constitution: This section deals with the creation of new states, boundary adjustments, and the creation of new local government areas.
• Section 9 of the Constitution itself: This means that the amendment procedure for the amendment procedure itself is entrenched, making it harder to alter the rules of the game easily.
• Chapter IV of the Constitution: This is the highly crucial chapter dealing with Fundamental Rights. Any attempt to alter fundamental human rights provisions requires this higher threshold.

The procedure for altering these entrenched provisions is as follows:

• Four-Fifths Majority in National Assembly: The Bill for an Act seeking to alter these provisions must be passed by the votes of not less than four-fifths majority of all the members of each House of the National Assembly. This is a significantly higher bar than the two-thirds majority required for general provisions, demanding near-unanimous support from federal legislators.
• Approval by State Houses of Assembly: Similar to general provisions, the proposed amendment must then be approved by a resolution of the Houses of Assembly of not less than two-thirds of all the States of the Federation.

Presidential Assent: A Contentious Point

A key debate and occasional “blind spot” in discussions about constitutional amendment in Nigeria has been the role of presidential assent. Historically, the prevailing view, often supported by practice, was that a Bill altering the Constitution, having fulfilled the requirements of Section 9, still required the President’s assent to become law, just like any other ordinary Bill (as per Section 58 of the Constitution).

However, there has been a strong argument, particularly from legal scholars and some legislators, that constitutional alteration Bills are sui generis (of their own kind) and do not require presidential assent. The argument posits that if the Constitution explicitly states the conditions for its alteration in Section 9, and those conditions are met, the President’s role is not to veto but merely to acknowledge. The rationale is that the collective will of the National Assembly and the State Houses of Assembly, representing the sovereign people, should be supreme in this fundamental area.

This debate came to a head when former President Goodluck Jonathan withheld his assent to a bundle of constitutional amendment bills passed by the National Assembly. While the National Assembly attempted to override the veto, the Supreme Court was eventually brought into the matter. The general consensus now leans towards the view that while the President’s assent is typically required for ordinary legislation, the specific and stringent requirements of Section 9 for constitutional amendments may suggest a different interpretation, where presidential assent, if withheld, can be overridden by the National Assembly.

The practical implication is that if the prescribed majorities in both the National Assembly and State Houses of Assembly are achieved, the Bill should become law, potentially without the President’s signature if he withholds it, provided the National Assembly re-passes it with the required supermajority. This remains an area where the judiciary’s interpretive role is crucial in settling potential ambiguities.

Stages of the Amendment Process in Detail

While Section 9 provides the legal backbone, the actual process involves several practical stages, mirroring the general legislative process but with enhanced requirements:

1. Initiation of the Bill:
   • A proposal for constitutional amendment typically originates as a Bill introduced by a member (or group of members) in either the Senate or the House of Representatives.
   • Committees on Constitutional Amendment in both Houses of the National Assembly are usually established to consider proposals. These committees often hold public hearings to gather input from various stakeholders, civil society organizations, professional bodies, and the general public. This public engagement is vital for ensuring popular legitimacy.
2. First Reading:
   • The Bill is formally introduced by its title, and copies are circulated to members. No debate takes place at this stage.
3. Second Reading:
   • This is where the general principles and merits of the Bill are debated by members of the respective House. Members express their views for or against the proposed alterations.
   • If the Bill scales the second reading (by a simple majority vote), it is then referred to the relevant committee.
4. Committee Stage:
   • The Constitutional Amendment Committee (or a special ad-hoc committee) scrutinizes the Bill clause by clause.
   • This stage often involves extensive deliberations, public hearings, and expert testimonies. Amendments to the clauses can be proposed and voted upon within the committee.
   • The committee then prepares a report, incorporating any agreed-upon changes, and presents it back to the full House.
5. Committee of the Whole / Third Reading:
   • The House resolves into the “Committee of the Whole” to consider the committee’s report. Each clause is debated and voted upon.
   • At this crucial stage, the two-thirds majority (or four-fifths for entrenched provisions) of all members of the House must be secured for each clause of the Bill. This is a critical hurdle. If a clause fails to get the required majority, it is dropped or re-worked.
   • After all clauses have been voted on, the Bill proceeds to the Third Reading, which is largely a formality to confirm the final version. A final vote is taken on the entire Bill, again requiring the specified supermajority.
6. Concurrence by the Other House:
   • Once passed by one House (e.g., the Senate), the Bill is transmitted to the other House (e.g., the House of Representatives) for concurrence.
   • The second House repeats the entire legislative process (First Reading, Second Reading, Committee Stage, Third Reading), again requiring the same supermajority votes.
   • If there are differences in the versions passed by both Houses, a Conference Committee, comprising members from both chambers, is set up to reconcile the differences. The harmonized version is then sent back to both Houses for a final vote.
7. Transmission to State Houses of Assembly:
   • Upon successful passage by the National Assembly with the requisite supermajorities, the Bill is then transmitted to the Speakers of all 36 State Houses of Assembly.
   • Each State House of Assembly must then consider the proposed alterations. A resolution approving the alterations must be passed by a simple majority vote in each State House of Assembly.
   • The Clerk of each State House of Assembly is responsible for transmitting the resolution back to the Clerk to the National Assembly.
8. Compilation and Presidential Assent (or Override):
   • The National Assembly compiles the resolutions from the State Houses of Assembly.
   • For the Bill to proceed, at least two-thirds (24 states) of the State Houses of Assembly must have approved the alterations.
   • Once this threshold is met, the Bill is sent to the President for assent. As discussed, while presidential assent is typically expected, its absence can potentially be overridden by the National Assembly if they re-pass the Bill with a two-thirds majority in each House.
9. Gazetting:
   • Once assented to (or deemed to have been assented to), the Alteration Act is published in the Official Gazette of the Federal Republic of Nigeria, formally becoming part of the Constitution.

The Role of Key Institutions

• National Assembly (Senate and House of Representatives): The primary initiator and legislative engine of constitutional amendment. Their ability to garner the necessary supermajorities is fundamental.
• State Houses of Assembly: Crucial in reflecting the federal character of Nigeria, providing state-level approval and legitimacy to proposed amendments. Their collective approval is a non-negotiable step.
• The Judiciary: Plays a vital interpretive role. In cases of dispute regarding the procedure or the legality of an amendment, the courts, particularly the Supreme Court, are the final arbiters. They ensure that the amendment process adheres strictly to the constitutional provisions, upholding the rule of law. The judiciary can strike down an amendment if it is found to have violated the prescribed procedure.
• The President: The Head of the Executive. While the precise nature of presidential assent for constitutional amendments has been debated, the President’s role in the legislative process is generally significant.

Challenges and “Blind Spots” in the Amendment Process

Despite the clear legal framework, the process of constitutional amendment in Nigeria is fraught with challenges, often leading to slow progress, public skepticism, and sometimes, outright failure. Some of these challenges and “blind spots” include:

1. High Thresholds and Difficulty in Achieving Consensus: The supermajority requirements at both federal and state levels are extremely difficult to achieve in a polity as diverse and often polarized as Nigeria. Political considerations, ethnic sentiments, and regional interests can easily derail even well-intentioned proposals.
2. Lack of Public Engagement and Awareness: Historically, the constitutional amendment process has often been perceived as an elite affair, with limited genuine public participation beyond formal public hearings. A lack of widespread public understanding and ownership can undermine the legitimacy of any amendment.
3. Funding and Logistics: The process, involving extensive public hearings, consultations, and the transmission of bills and resolutions across 36 states, is resource-intensive.
4. Political Will and Inter-Arm Relations: The success of constitutional amendment hinges heavily on the political will of elected officials and harmonious relations between the executive and legislative arms, and between the federal and state governments. Disagreements or power play can lead to gridlock.
5. Contentious Issues: Certain issues, such as resource control, state police, local government autonomy, derivation principle, and gender equity, are deeply contentious and often become stumbling blocks in the amendment process due to strong vested interests and divergent views.
6. “People’s Constitution” Debate: The ongoing debate about whether the 1999 Constitution truly reflects the will of the Nigerian people (given its military origins) often leads to calls for a complete overhaul or a national conference, rather than mere amendments. This fundamental disagreement can create inertia.
7. Impact of Veto and Judicial Review: As highlighted earlier, the role of presidential assent and the potential for judicial intervention can introduce uncertainty and delays, sometimes leading to protracted legal battles.
8. Limited Scope of Amendments: While the National Assembly has made efforts, some critics argue that the amendments often focus on procedural or administrative issues rather than addressing deeper structural and systemic problems that plague the Nigerian federation.
9. Lack of Referendum: Unlike some other jurisdictions, the Nigerian Constitution does not currently provide for a national referendum to approve constitutional amendments. This means direct popular approval is absent, relying solely on the decisions of elected representatives. Proponents of a “people’s constitution” often advocate for the inclusion of a referendum mechanism.
10. Timelines and Efficiency: The multi-stage process is inherently time-consuming. The 10th National Assembly has, for example, set a target to round up all constitution alteration bills by December 2025, indicating the extensive timeframe required.

The Promise of Future Amendments and the Path Forward

Despite the inherent difficulties, the ongoing efforts at constitutional amendment underscore a crucial aspect of democratic governance: the capacity for self-correction and adaptation. The continuous clamour for amendments reflects a dynamic society grappling with its identity, challenges, and aspirations.

For future constitutional amendment processes to be more effective and enjoy greater legitimacy, several considerations are paramount:

• Enhanced Public Participation: Moving beyond token public hearings to genuinely involve citizens at all stages, perhaps through robust civic education campaigns, community dialogues, and leveraging technology for broader engagement.
• Building Political Consensus: Fostering a spirit of compromise and national interest among political actors, transcending partisan and regional divides.
• Strategic Prioritization: Focusing on key, impactful amendments that address critical national issues and have a higher chance of success due to broad support.
• Clarity on Presidential Assent: While the jurisprudence is evolving, clearer constitutional guidelines or judicial pronouncements on the requirement of presidential assent for constitutional alteration bills would remove a significant area of ambiguity.
• Consideration of a Referendum: While challenging to implement, exploring the possibility of a referendum for particularly fundamental amendments could bolster popular legitimacy and ownership of the Constitution.
• Addressing Structural Issues: Moving beyond piecemeal amendments to address fundamental structural issues of the Nigerian federation, such as fiscal federalism, decentralization of power, and local government autonomy, could be more impactful in the long run.
• Strengthening Independent Institutions: Ensuring that institutions involved in the amendment process, particularly the judiciary, remain truly independent and capable of upholding constitutionalism without fear or favour.

Conclusion

The legal procedure for constitutional amendment in Nigeria, as stipulated in Section 9 of the 1999 Constitution, is a rigorous and deliberate process designed to protect the integrity of the supreme law and ensure broad national consensus. It reflects the complexities of a diverse federal state, balancing the need for stability with the imperative for adaptability. While the journey of constitutional reform in Nigeria has been marked by significant challenges, including the arduous supermajority requirements, political dynamics, and ongoing debates about legitimacy, the continuous engagement with the amendment process signifies a collective aspiration for a more perfect union.

The future of Nigeria’s constitutional development lies not just in the letter of the law but in the spirit of cooperation, genuine public engagement, and unwavering commitment of all stakeholders to upholding the rule of law and building a constitutional framework that truly serves the enduring interests of all Nigerians. As the nation continues its democratic experiment, the constitutional amendment process remains a critical arena where the destiny of its federal character and the aspirations of its people are continually negotiated and redefined.