CONSTITUTIONALISM AND THE CHALLENGES OF DEMOCRATIC GOVERNANCE IN NIGERIA

CHAPTER ONE

GENERAL INTRODUCTION

1.1. Background of the Study

Man is endowed with a modicum of freedom. No man can be subjected to the political hegemony or power of another without his own consent. However, the realities of communalism and social interactions among men demand a leader or ruler to whom the inhabitants of a political society should abdicate their right to freedom. The ruler exercises this power on behalf of the people. Prior to this period, it was a state of war of all against all aptly captured by the Latin maxim bellum omnium, contra omnes.

Government was evolved to eliminate these enraging political skirmishes. Constitution was enacted to effectively run the government. This is usually referred to in jurisprudence as the first constitution. The question is why will one have to respect the first constitution as a binding norm? The answer is that the fathers of first constitution were empowered by God. With this empowerment the first constitution was made and it formed the basis of subsequent constitutions.

With the Constitution in place, constitutionalism was ushered in with its concomitant features and attributes. Power which is the ability to make someone to conform to your desire, was consequently separated. This implies that the three fundamental powers of government cannot be fused in one person. Also, the three arms of government that wield these powers cannot usurp the power already given to another. Therefore, it is proper to posit that true constitutionalism has never meant government enfeebled by divisions within itself; it has meant government limited by law. The implication of this is that the governmental powers must be exercised in compliance with constitutional demands.

Interestingly too, the constitution can never give a right with one hand and take it away with another hand. In Elelu-Habeeb & Anor. v. The Hon. Attorney General of the Federation & Ors., the Supreme Court held that the constitution will never give a right with one hand and remove such right with another hand. The constitution and the lawmakers are in favour of running the affairs of the society smoothly.

In Nigeria, the Constitution of the Federal Republic of Nigeria 1999 ushered in a democratic regime on 29th May 1999. An attempt to amend the said constitution was thwarted during the Obasanjo’s regime because of the tacit plan to introduce the 3rd in office term for the President. However, there was a breakthrough in 2011 when the Constitution was amended three times. This threw up the controversy of when the 1999 Constitution as amended in 2011 became operative. This controversy then formed a microcosm of the issues raised in Hope Democratic Party v. Peter Obi & Ors. The issue in the case was whether the Supreme Court had jurisdiction to entertain the appeal as the subject matter of the appeal emanated from an election which was conducted before the amendment to the 1999 Constitution and the hearing in election petitions terminates at the Court of Appeal by virtue of section 246(3) of the 1999 Constitution before the amendment? In resolving this issue, the Supreme Court pointed out that it is clear that the provisions of the 1999 Constitution as amended came into force on the 10th day of January, 2011 when the President of the Federal Republic of Nigeria signed same and not on any other date, whether stated on the body of the document or elsewhere as there is no evidence that the President withheld his assent to the bill. The Supreme Court explained further that to hold that the commencement date of the 1999 Constitution as amended is the 29th day of November 2010 which is a date prior to the signing of the Bill into an Act would be very absurd and contrary to law. Definitely, such decision would have implied that the 1999 Constitution as amended is made to apply retrospectively by implication which is equally frowned upon by law.

1.2. Statement of the Problem

Nigeria is the most populous Black Country in the world. This has earned Nigeria a pre-eminent place in the comity of States. Nigeria is the acclaimed giant of Africa. Unfortunately, Nigeria has a very checkered constitutional evolution. A number of constitutions have been enacted for Nigeria and yet Nigeria cannot even presently boast of a holistic constitution that is made by specifically elected and mandated people of Nigeria. What is worse, Nigeria has a constitution without constitutionalism. Nigerian leaders inherited the culture of political impunity and lawlessness from the military era. This has now posed a serious challenge to democratic governance in Nigeria.

1.3. Research Questions

The research questions for this study are as follows:

1. Is the evolution of democratic governance in Nigeria a product of constitutionalism?

2. Is the rule of law the hallmark of democratic governance in Nigeria?

3. Is there viable components and dynamics of constitutionalism in Nigeria?

4. Is there features of constitutionalism and challenges of democratic governance in Nigeria?

1.4. Scope of the Work

This research reviews the evolution of democratic governance in Nigeria. Consequently, the study of the evolution of democratic governance in Nigeria is confined within the first to the eighth Republic. It further ascertains the question whether the rule of law is the hallmark of democratic governance in Nigeria. The viability of components and dynamics of constitutionalism takes the centre stage since the success or failure of democratic governance in Nigeria is anchored on these indices. Finally, factors that militate against constitutionalism receive serial and specific treatment. All in all, this research is all about constitutionalism in the body politics of Nigeria from inception to the present politico-legal dispensation. The research also charts a roadmap on ways to deepen democracy and limited government in Nigeria.

1.5. Aims and Objectives of the Study

The aim of this study is to appraise constitutionalism in Nigeria with the intent to highlight the challenges of democratic governance in the 21st century. The work will show that Nigeria’s democratic governance is still wearing the toga of meritocracy though it is being operated by civilians. The objectives of the study will address the research questions and include:

1. To lay bare the causes of this deficiency in Nigeria’s democratic experience.

2. To ascertain if the tide of constitutionalism through democratic governance in Nigeria has been what the military carved it to be.

4. To ascertain the viable components and dynamics of constitutionalism in Nigeria.

3. To recommend a roadmap towards effective constitutionalism and true democratic governance.

1.6. Significance of the Study

The study identified the basic attributes of true democratic governance. The importance of an effective constitution to the successful operation of constitutionalism was underscored by the study. The study is significant because it exposed the various pitfalls of democratic governance in Nigeria. The challenges facing democratic governance in Nigeria were shown to be mostly from constitutional oscillations and weak constitutionalism. Most importantly, the study concludes that Nigeria, though under democratic governance, is yet to develop democratic cultures that can effectively checkmate the excesses of governmental operations. The work is significant for the executive and legislative arms of government because it will guide them to achieve the essence of democratic governance in Nigeria.

1.7. Methodology

The methodology adopted is descriptive, analytical and doctrinal. It is descriptive and analytical because the study describes and analyses the state of the law in Nigeria vis-à-vis the area of focus in this work. It also examines relevant doctrines to the subject matter of this study. The study placed huge reliance on the following primary source materials: participant observations, oral interviews and comments of legal practitioners. The secondary source materials used were: case law, textbooks, journal articles, conference papers, the internet and other legal literatures. The data will be analysed through deductive reasoning that will be based on statutes and case law.