Comparative Study: Nigerian Constitution vs. U.S. Constitution

COMPARATIVE STUDY: NIGERIAN CONSTITUTION VS. U.S. CONSTITUTION

The Constitutions of the Federal Republic of Nigeria and the United States of America stand as foundational legal documents, each reflecting the unique historical trajectories, cultural values, and political aspirations of their respective nations. While both aim to establish a framework for governance, protect rights, and ensure stability, their origins, structures, and operational dynamics reveal fascinating similarities and profound divergences. This comprehensive comparative study delves into these aspects, offering a holistic understanding of their strengths, weaknesses, and the ongoing challenges of constitutionalism in both contexts.

1. Genesis and Evolution: A Tale of Two Histories

The birth of a nation’s constitution is rarely a spontaneous event; it is often a culmination of historical forces, societal struggles, and political compromises. The U.S. Constitution, born out of a revolutionary struggle for independence and a desire to rectify the weaknesses of the Articles of Confederation, reflects a deliberate and unified effort to establish a lasting republic. In contrast, the Nigerian Constitution’s journey has been marked by colonial imposition, military interventions, and a continuous quest for a truly autochthonous document that genuinely reflects the will of its diverse populace.

1.1. The U.S. Constitution: A Product of Enlightenment and Pragmatism

The U.S. Constitution, ratified in 1788, emerged from the Philadelphia Convention of 1787. Its framers, deeply influenced by Enlightenment thinkers like Locke and Montesquieu, sought to create a government that prevented tyranny by dividing power and ensuring checks and balances. The short, concise nature of the document reflects a pragmatic approach, laying down broad principles rather than exhaustive details.

• Articles of Confederation’s Failure: The immediate precursor to the U.S. Constitution was the Articles of Confederation, which established a weak central government with limited powers, leading to economic instability and interstate disputes. The desire for a stronger, more unified nation provided the impetus for the Constitutional Convention.
• The Great Compromise: The crafting of the Constitution involved significant debates and compromises, notably the “Great Compromise” (or Connecticut Compromise), which reconciled the interests of large and small states by establishing a bicameral legislature: the House of Representatives (based on population) and the Senate (equal representation for each state).
• Emphasis on Limited Government: A core principle was the fear of excessive governmental power. This led to the explicit enumeration of powers for the federal government, with all other powers reserved to the states or the people (Tenth Amendment).
• Flexibility through Amendment: The framers understood that society would evolve, and thus, they included a mechanism for amendment (Article V), ensuring the Constitution could adapt to changing times without losing its fundamental character. This adaptability has allowed the Constitution to endure for over two centuries.
• Bill of Rights: Although not originally part of the 1787 document, the Bill of Rights (the first ten amendments) was ratified in 1791, largely due to concerns from anti-Federalists who feared the absence of explicit protections for individual liberties. It enshrined fundamental rights such as freedom of speech, religion, and assembly, and due process.

1.2. The Nigerian Constitution: A Legacy of Colonialism and Military Rule

Nigeria’s constitutional history is far more complex and fragmented. From 1914, when the British amalgamated the Northern and Southern Protectorates, Nigeria experienced a series of colonial constitutions (e.g., Clifford 1922, Richards 1946, Macpherson 1951, Lyttleton 1954) designed to facilitate British administration. The independence constitution of 1960 and the Republican Constitution of 1963 were attempts at self-governance, but these were short-lived, giving way to prolonged periods of military rule.

• Colonial Imposition: Early constitutions were not products of popular will but rather instruments of colonial governance, often designed to maintain British control and exploit resources. They laid the groundwork for a federal system, largely to manage Nigeria’s vast ethnic and regional diversity.
• Post-Independence Challenges: The 1960 and 1963 constitutions aimed to establish a parliamentary democracy and later a republic. However, deep-seated ethnic rivalries, political instability, and corruption led to military coups in 1966, ushering in an era of military decrees and a suspension of constitutional rule.
• Military-Midwifed Constitutions: The 1979, 1989, and the current 1999 Constitutions were largely products of military regimes, promulgated as part of transitions to civilian rule. This origin has fueled debates about their legitimacy and autochthony – whether they truly emanate from the Nigerian people or are imposed from above. The 1999 Constitution, in particular, is often criticized for its “We the People” preamble, given its military decree origins.
• Unitary Tendencies within Federalism: Despite adopting a federal structure, military rule centralized power, leading to a “quasi-federalism” where the federal government retains significant control over resources and policy, a legacy that continues to fuel agitation for restructuring and resource control.
• Frequent Amendments and Review: The Nigerian Constitution has undergone numerous amendments and reviews, reflecting ongoing attempts to address perceived flaws, address emerging challenges, and reflect the aspirations of a diverse and evolving society.

 

2. Structure and Content: A Detailed Examination

Both Constitutions employ a written format, but they differ significantly in their length, detail, and the specific provisions they contain.

2.1. Length and Specificity

• U.S. Constitution: Remarkably concise, consisting of seven articles and twenty-seven amendments. Its brevity allows for broad interpretation and adaptation, a concept known as “living constitutionalism.” It lays down general principles, leaving much to statutory law and judicial interpretation.
• Nigerian Constitution: Considerably longer and more detailed, comprising 320 sections divided into eight chapters, alongside seven schedules. This extensiveness is partly a reaction to Nigeria’s volatile political history, attempting to cover every conceivable aspect of governance and prevent abuses of power. However, this detail can also lead to rigidity and a lack of flexibility.

2.2. Preamble

• U.S. Constitution: Begins with the iconic “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” This emphasizes popular sovereignty and the foundational purposes of the government.
• Nigerian Constitution: Opens with “We the people of the Federal Republic of Nigeria, Having firmly and solemnly resolved, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to promoting inter-African solidarity, world peace, international co-operation and understanding, And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people…” While also invoking “We the People,” its military origin often brings this assertion into question. It highlights unity, harmony, and inter-African solidarity, reflecting Nigeria’s post-colonial context and Pan-African aspirations.

2.3. Federalism and Division of Powers

Both countries operate federal systems, but the allocation of power between the central and sub-national governments varies.

• U.S. Constitution: Establishes a system of “dual federalism” which has evolved into “cooperative federalism.” Powers are divided into:
  • Delegated (Enumerated) Powers: Granted specifically to the federal government (e.g., coining money, declaring war, regulating interstate commerce).
  • Reserved Powers: Powers not delegated to the federal government, nor prohibited to the states, are reserved to the states respectively, or to the people (Tenth Amendment). This forms the basis of state sovereignty.
  • Concurrent Powers: Powers shared by both federal and state governments (e.g., taxation, building roads).
  • The Supremacy Clause (Article VI, Clause 2) establishes the Constitution, federal laws, and treaties as the supreme law of the land.
  • The structure allows states significant autonomy and serves as laboratories for policy experimentation.
• Nigerian Constitution: Also establishes a federal system with three tiers of government: Federal, State, and Local. However, the distribution of power exhibits a strong tilt towards the center, a legacy of military rule.
  • Exclusive Legislative List (Second Schedule, Part I): Contains 68 items over which only the National Assembly can legislate (e.g., defense, foreign affairs, currency, mines and minerals, police). This list is far more extensive than the enumerated powers of the U.S. federal government.
  • Concurrent Legislative List (Second Schedule, Part II): Specifies matters over which both the National Assembly and State Houses of Assembly can legislate (e.g., education, health). Federal law prevails in case of conflict.
  • Residual Powers: Powers not found on either list are theoretically reserved for the states. However, the extensive exclusive list significantly limits the scope of state autonomy.
  • Revenue Allocation: The federal government controls the vast majority of revenue, leading to significant financial dependence of states and local governments on the center, and constant agitations for “resource control,” particularly from oil-producing regions.
  • Local Government: Section 7 of the 1999 Constitution guarantees the existence of local governments, outlining their functions. However, their financial autonomy and administrative independence are often curtailed by state governments, unlike in the US where local governments derive significant powers from state constitutions.

2.4. Separation of Powers and Checks and Balances

Both constitutions enshrine the principle of separation of powers among the executive, legislative, and judicial branches, coupled with a system of checks and balances to prevent any one branch from becoming too powerful.

• U.S. Constitution:
  • Executive (Article II): President as Head of State and Government, with powers including commander-in-chief, appointing officials, negotiating treaties.
  • Legislative (Article I): Bicameral Congress (House of Representatives and Senate) with powers to make laws, declare war, levy taxes, approve treaties and appointments.
  • Judicial (Article III): Supreme Court and lower federal courts, with powers of judicial review (though not explicitly stated, established through Marbury v. Madison).
  • Checks and Balances: The President can veto legislation (Congress can override); Congress can impeach and remove the President or judges; the Judiciary can declare laws unconstitutional; the Senate confirms presidential appointments. This system is robust and has been refined over centuries of practice.
• Nigerian Constitution:
  • Executive (Chapter VI): President as Head of State and Government, with extensive powers including commander-in-chief, appointing ministers and heads of parastatals, and assenting to bills. There is often criticism about the excessive concentration of power in the presidency, a hangover from military rule.
  • Legislative (Chapter V): Bicameral National Assembly (Senate and House of Representatives) with powers to make laws, appropriate funds, and oversight. They can override presidential vetoes (though rarely done).
  • Judicial (Chapter VII): Supreme Court, Court of Appeal, Federal High Court, State High Courts, and other courts. It also has judicial review powers, though its independence has at times been challenged, particularly during military eras.
  • Checks and Balances: The National Assembly can impeach the President; the President can veto bills; the Judiciary can declare laws or executive actions unconstitutional. However, the effectiveness of these checks is often hampered by political realities, party loyalty, and, historically, the overbearing influence of the executive.

3. Fundamental Rights and Freedoms

Both constitutions guarantee fundamental rights, but there are differences in their categorization and enforceability.

• U.S. Constitution: The Bill of Rights (Amendments I-X) primarily focuses on civil and political rights (negative rights), limiting government interference. These include freedom of speech, religion, assembly, press, right to bear arms, protection against unreasonable searches and seizures, due process, and protection against self-incrimination. These rights are generally considered justiciable, meaning they can be enforced in courts. Further amendments (e.g., 13th, 14th, 15th, 19th, 26th) have expanded rights, particularly civil rights and voting rights.
• Nigerian Constitution: Chapter IV (Sections 33-46) guarantees a range of fundamental rights, largely echoing civil and political rights found in international human rights instruments. These include right to life, dignity of human person, personal liberty, fair hearing, private and family life, freedom of thought, conscience and religion, freedom of expression and the press, peaceful assembly and association, freedom of movement, and right to acquire and own immovable property. These rights are generally justiciable.

  However, Chapter II (Sections 13-24) outlines “Fundamental Objectives and Directive Principles of State Policy.” These include provisions on political, economic, social, educational, and cultural objectives. Crucially, Section 6(6)(c) explicitly states that these objectives are non-justiciable, meaning they cannot be enforced in a court of law. This has been a point of significant criticism, as it renders aspirations like free education, adequate medical care, and suitable shelter as mere policy goals rather than enforceable rights. This contrasts sharply with some modern constitutions that integrate socio-economic rights as justiciable.

4. Amendment Process: Rigidity vs. Flexibility

The ease or difficulty of amending a constitution is a critical indicator of its adaptability and responsiveness to societal change.

• U.S. Constitution (Article V): Considered one of the most rigid constitutions in the world.
  • Proposal: Requires either a two-thirds vote of both the House of Representatives and the Senate OR a convention called for by two-thirds of the state legislatures.
  • Ratification: Requires approval by three-fourths of the state legislatures OR by three-fourths of the states holding special conventions.
  • This high threshold ensures broad consensus for any constitutional change and prevents impulsive amendments. Despite its age, it has only been amended 27 times, with the first 10 being the Bill of Rights.
• Nigerian Constitution (Section 9): Also designed to be rigid, reflecting the need for stability in a diverse nation.
  • Proposal for ordinary provisions: Requires a two-thirds majority of members of each house of the National Assembly.
  • Proposal for entrenched provisions (e.g., creation of new states, fundamental rights): Requires a four-fifths majority of members of each house of the National Assembly AND approval by resolution of the Houses of Assembly of not less than two-thirds of all the States of the Federation.
  • While seemingly stringent, the amendment process in Nigeria has been subject to various attempts at reform, and the historical context of military decrees often bypassing constitutional processes casts a shadow on the perceived rigidity. The process is often lengthy, contentious, and resource-intensive, with several attempts at comprehensive constitutional review yielding limited results.

5. The Judiciary: Guardians of the Constitution

The role of the judiciary as interpreters and guardians of the constitution is paramount in both systems.

• U.S. Judiciary:
  • Judicial Review: The power of the Supreme Court to declare laws and executive actions unconstitutional, established in Marbury v. Madison (1803), is a cornerstone of American constitutional law.
  • Lifetime Tenure: Federal judges hold their offices during “good behavior” (effectively lifetime tenure), which is intended to insulate them from political pressure and promote judicial independence.
  • Appointment Process: Judges are nominated by the President and confirmed by the Senate, a process that can be highly politicized.
  • Stare Decisis: The principle of adhering to precedents (previous court decisions) provides stability and predictability in legal interpretation.
• Nigerian Judiciary:
  • Judicial Review: The Nigerian judiciary also exercises the power of judicial review, interpreting the constitution and laws, and adjudicating disputes between different levels of government or between citizens and the state.
  • Appointment and Removal: Judges are appointed by the President on the recommendation of the National Judicial Council (NJC), and their appointments are subject to confirmation by the Senate. Removal involves a complex process involving the NJC and legislative approval. While intended to ensure independence, concerns about political influence in appointments and disciplinary actions have occasionally been raised.
  • Hierarchy of Courts: A well-defined hierarchy of courts, culminating in the Supreme Court, ensures a structured system of justice.
  • Challenges: The Nigerian judiciary faces challenges including corruption allegations, slow dispensation of justice, and at times, perceived executive interference.

6. Legislative Arm: Representation and Lawmaking

Both nations have bicameral legislatures, but their composition, powers, and operational dynamics reflect their distinct historical and political contexts.

• U.S. Congress:
  • House of Representatives: Members are elected for two-year terms, based on population, ensuring close representation to the people.
  • Senate: Members are elected for six-year terms, with two senators from each state, ensuring equal state representation and acting as a more deliberative body.
  • Powers: Extensive lawmaking powers, power of the purse (initiating revenue bills in the House), oversight of the executive, and the power to declare war.
  • Party Politics: Strong party discipline and often deep partisan divides characterize legislative processes.
• Nigerian National Assembly:
  • House of Representatives: Members elected for four-year terms, representing constituencies based on population.
  • Senate: Members elected for four-year terms, with three senators from each state and one from the Federal Capital Territory, ensuring equal state representation.
  • Powers: Similar to the U.S. Congress, including lawmaking, appropriation, oversight, and confirmation of appointments.
  • Challenges: The Nigerian National Assembly has faced criticisms regarding its cost of operation, legislative efficiency, and public perception, with calls for greater accountability and transparency. The influence of the executive and party politics can sometimes undermine its independence.

7. Executive Arm: Presidential Powers and Accountability

Both operate presidential systems, where the President is both Head of State and Head of Government, but the scope of their powers and the mechanisms for accountability differ.

• U.S. Presidency:
  • Commander-in-Chief: Extensive powers over the military.
  • Chief Diplomat: Conducts foreign policy, negotiates treaties.
  • Chief Executive: Appoints cabinet members and other officials.
  • Checks on Power: Subject to significant checks by Congress (impeachment, appropriations, treaty ratification, confirmation of appointments) and the judiciary (judicial review). The two-term limit was established by the 22nd Amendment.
• Nigerian Presidency:
  • Extensive Powers: The President under the 1999 Constitution wields considerable power, including control over vast resources, appointments to numerous federal positions, and command of the armed forces and police. This concentration of power is a lingering effect of military rule and has led to calls for decentralization.
  • Accountability: Subject to impeachment by the National Assembly and judicial review. However, the actual exercise of these checks can be challenging due to political dynamics and power imbalances. The President is elected for a four-year term, renewable once.
  • Executive Orders: Both presidents can issue executive orders, but their scope and review mechanisms vary. In Nigeria, the concept of executive orders is less defined and has been a subject of debate regarding its constitutionality in certain contexts.

8. Citizenship and Nationality

Both constitutions define citizenship and outline the rights and responsibilities associated with it.

• U.S. Constitution: The 14th Amendment defines citizenship: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This establishes birthright citizenship (jus soli). Naturalization processes are governed by federal law.
• Nigerian Constitution (Chapter III): Defines citizenship by:
  • Birth: Every person born in Nigeria before or on the date of independence (October 1, 1960), whose parents or grandparents belonged to an indigenous community in Nigeria. Also, any person born in Nigeria after independence whose parents are citizens of Nigeria.
  • Registration: For women married to Nigerian citizens.
  • Naturalization: For individuals who meet specific residency and other requirements.
  • It also contains provisions for dual citizenship (Section 28) and renunciation of citizenship.

9. Constitutionalism and Rule of Law

The effectiveness of any constitution hinges on the extent to which it is observed and upheld – the principle of constitutionalism and the rule of law.

• U.S.: Has a strong tradition of constitutionalism, where the Constitution is revered as the supreme law. Respect for the rule of law is deeply ingrained, though not without its challenges and ongoing debates (e.g., executive privilege, checks on presidential power). The principle of an “originalist” vs. “living” constitution is a constant point of academic and judicial discussion.
• Nigeria: The journey towards entrenched constitutionalism has been more arduous. The repeated interruptions by military rule undermined the supremacy of the constitution. While the 1999 Constitution aims to establish civilian supremacy and the rule of law, challenges persist, including:
  • Lack of Autochthony: The perception that the constitution was imposed by the military rather than genuinely crafted by the people contributes to a lack of full ownership and adherence.
  • Corruption and Impunity: Corruption can undermine the integrity of institutions and the impartial application of the law.
  • Political Interference: Executive and legislative interference in judicial processes can erode judicial independence.
  • Electoral Challenges: Disputed elections and electoral malpractice can strain the constitutional framework.
  • Agitation for Restructuring: Calls for constitutional amendments to address imbalances in federalism, revenue allocation, and regional autonomy continue to dominate national discourse.

10. Social and Economic Contextual Differences

The operational realities of these constitutions are shaped by their respective social and economic environments.

• U.S.: A developed economy with strong institutions, a high literacy rate, and a long history of democratic practice. While facing its own social and economic challenges, the foundational stability provided by the Constitution allows for continuous adaptation and evolution within established parameters.
• Nigeria: A developing nation grappling with issues such as poverty, inequality, ethnic and religious diversity, insecurity, and a large informal sector. These factors often place immense pressure on constitutional provisions and institutions, highlighting the need for a constitution that is not only legally sound but also practically implementable and reflective of the socio-economic aspirations of its citizens. The concept of “unity in diversity” is paramount but also a constant challenge to manage within the constitutional framework.

11. Areas for Potential Reform and Learning

Both constitutions, despite their successes, face ongoing challenges and debates about their efficacy.

• For Nigeria:
  • Constitutional Autochthony: A genuine people-driven constitution-making process could enhance the legitimacy and ownership of the document.
  • Fiscal Federalism: Re-evaluating revenue allocation and resource control to grant greater fiscal autonomy to states could reduce tensions and foster local development.
  • Strengthening Local Governments: Granting greater autonomy and financial independence to local governments could bring governance closer to the people.
  • Justiciability of Socio-Economic Rights: Incorporating some of the fundamental objectives as justiciable rights could improve the welfare of citizens and hold the state more accountable.
  • Decentralization of Power: Addressing the excessive concentration of power in the federal center and the presidency.
• For the U.S.:
  • Electoral Reform: Debates around electoral college, campaign finance, and voting rights continue.
  • Judicial Interpretation: The balance between originalism and living constitutionalism remains a central theme in legal discourse.
  • Addressing Modern Challenges: Adapting constitutional principles to challenges posed by technology, globalization, and evolving social norms.

Conclusion

The Nigerian and U.S. Constitutions, though both serving as supreme laws in federal republics with presidential systems, are products of vastly different historical journeys and socio-political landscapes. The U.S. Constitution, with its brevity, established a resilient framework that has adapted over centuries through interpretation and a rigorous amendment process. Its enduring strength lies in its ability to balance powers, protect individual liberties, and foster a stable democratic tradition.

In contrast, the Nigerian Constitution, while embodying similar democratic ideals on paper, has been shaped by the tumultuous experiences of colonialism, military rule, and a persistent struggle for national cohesion. Its greater length and detailed provisions reflect an attempt to preempt abuses and manage complex diversity. However, the challenge of its non-autochthonous origins, the imbalance of federal powers, and the non-justiciability of socio-economic rights present ongoing hurdles to achieving full constitutionalism and a truly equitable society.

Ultimately, a comparative study reveals that while foundational principles of governance may be shared, their implementation and effectiveness are profoundly influenced by historical legacies, political cultures, and the ongoing aspirations of the people they are meant to serve. Both nations continue their respective journeys of constitutional evolution, striving to perfect their unions and ensure justice, liberty, and welfare for all their citizens. The lessons learned from each other’s experiences, both positive and challenging, offer valuable insights for strengthening democratic governance globally.